This week, the supreme court hears a case that will probably decimate American unions by going after them in the one bastion they have left, the public sector.
The case, Janus v AFSCME, promises to be the most consequential judicial decision for the US labor movement in a generation. The Republican-leaning court is widely expected to overturn 40 years of legal precedent by outlawing a major source of funding for public employees’ unions, called agency fees.
The fact that few people know what these fees are works in the favor of conservative groups which have been pushing anti-union legislation and lawsuits under the guise of defending workers against “compulsory union membership”. There is, in fact, no such thing: nowhere in the US can workers be compelled to join a union, nor contribute money to unions’ political activities.
Unions, however, are compelled by law to provide certain services to all workers in unionized workplaces, whether they are union members or not. Called “duties of fair representation”, these are things like filing grievances and defending workers who are fired or disciplined. If a majority of workers vote to unionize, they can also vote on a contract that stipulates that non-members have to pay – in lieu of dues - agency fees to cover those services they are entitled to receive. Outlawing such fees effectively defunds unions by encouraging freeloading: why pay for a service you’ll receive for free?
It is, of course, a little strange for libertarian types to seek the power of government to outlaw voluntary private contracts established by democratic vote, or encourage people not to pay for entitlements. But when it comes to destroying unions, there’s a high tolerance for hypocrisy.
In Janus, they argue that because public employees work for the government, and due to our curious legal custom of treating money as speech, such fees are constitutionally protected political speech and no one can be required to pay them. Notably, the same logic doesn’t apply to taxpayers, something more ideologically consistent libertarian legal scholars have pointed out.
Legal gymnastics aside, it’s no coincidence that public employee unions are being targeted specifically: they’re among the only remaining unions that have any strength in the country. Today, the dwindling percentage of workers who are members of unions is just over 10%, about half of what it was in the 1980s and about what it was during the Great Depression. For private sector workers, the number is less than 7%; for public sector workers, it’s 34%. Today, more unionized workers work for the government – local, state, or federal – than all other employers in the country combined.
Yet there was a time that US unions had bipartisan support, or at least grudging acceptance of the need for unions to be viable to represent workers’ interests and keep labor peace. One of the ironies of Janus is that its plaintiffs’ arguments against unions are no different than those in the case they seek to overturn, 1977’s Abood v Detroit Board of Education. In that case, the supreme court upheld agency fees in a unanimous decision. It was also a Republican-leaning court, led by an Eisenhower appointee.
What changed? Since the 1970s, Republican court appointees, like the Republican party as a whole, have become far more anti-union.
What made this possible is the decline of strikes. Strikes have become increasingly rare in the US: last year there were just seven major work stoppages as measured by the Department of Labor, the second lowest number in recorded history, down from a peak of 470 in 1952.
Agency fees play a major role in this story. As Joseph McCartin, a professor of history at Georgetown and the author of Collision Course: Ronald Reagan, the Air Traffic Controllers, and the Strike that Changed America explains, agency fees emerged in the 1970s in response to a wave of strikes by public employees, from teachers to police and firefighters to postal workers to sanitation workers, whose 1968 strike in Memphis was attended by Martin Luther King when he was assassinated.
Most of these strikes were illegal – all federal workers, and most state and local workers, are prohibited from striking – but the widespread labor unrest convinced politicians to offer the unions a carrot, financial security, to tamp down the militancy. “Even Republican leaders thought agency fees made sense,” says McCartin. “It made unions easier to deal with, by providing them with some stability.”
This new grand bargain gradually broke down, precisely because such financial guarantees had the moderating effect they were intended to have. With their right to strike abrogated, public worker unions turned to politics. No longer wielding a credible threat of labor unrest, they became more reliant on politicians, and the Democratic party, to secure raises and resist austerity rollbacks. Union rights became a partisan issue, and hobbling unions became a way for Republicans to hobble Democrats.
There’s a common myth that the value membership organizations like unions offer to parties is their money. Both parties get far more money from corporations than unions could ever donate. Rather, their strength is in member mobilization. Public sector unions are the Democrats’ ground troops for voter turnout, boots on the ground to match those provided to Republicans by their member organizations such as evangelical churches and the NRA – which actually spends very little on lobbying, just a 10th of what the National Association of Realtors does.
In many ways Janus was inevitable. It is the culmination of a decades-long, well-financed campaign by conservative foundations and business groups to demonize public workers, teachers in particular, and their unions. Democrats have themselves partly to blame for the situation: if not directly participating in the teacher-bashing, their muted response, and implicit embarrassment of being associated with teachers’ unions, did little to counter it.
Unions, too, might have seen it coming, having become increasingly reliant on Democrats just as the party under Bill Clinton was taking a hard turn toward Wall Street and distancing itself from its labor base. Now, with little hope of political salvation, there are few avenues public workers have left other than a return to 1970s-style militancy. And it’s happening already: on Thursday, teachers in West Virginia walked out in a massive, and illegal, strike that shut down schools in the entire state.
Janus won’t spell the complete death of US unions, but will back them into a corner and make them increasingly desperate. Politicians have forgotten what that could mean. If West Virginia is any indication, they’re about to find out.