Public Sector Unions are Extortion Rackets (and other things we learned in Janus v. AFSCME)

By 02/26/2018

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Josh Dunn called in to discuss the oral arguments in this case with EdNext Editor-in-chief Marty West on the EdNext Podcast.

Today’s oral argument in Janus v. AFSCME had a decided sense of déjà vu. The court had addressed the same issue, the power of public sector unions to confiscate agency fees from non-members, in two of the last three terms.

Agency fees, money taken from those who don’t want to join unions to support collective bargaining activities, appeared to be on the road to extinction in Friedrichs v. California Teachers Association (2016) when Justice Scalia’s death led to a 4-4 split. Today’s oral argument didn’t reveal much new information; however, we did learn two important things.

First, agency fees are in the hands of Justice Gorsuch. Anyone hoping that two years would soften the mercurial Justice Kennedy’s views had to be disappointed. This exchange between Kennedy and the AFCSME attorney, David Frederick, tells you all that you need to know on his position.

JUSTICE KENNEDY: I’m asking you whether or not in your view, if you do not prevail in this case, the unions will have less political influence; yes or no?

FREDERICK: Yes, they will have less political influence.

JUSTICE KENNEDY: Isn’t that the end of this case?

Kennedy’s point is obviously that you cannot draw a line separating the political activities of public sector unions from everything else they do. They are inherently political. If anything, Justice Kennedy’s position against agency fees seems to have hardened. I can’t recall another case where he was so contemptuous toward one side. Normally, he adopts a Solomonic posture of trying to balance both sides, but not today.

The other justices who voted to strike down agency fees in Friedrichs had not apparently changed their minds either. Chief Justice Roberts and Justice Alito expressed skepticism that agency fees could be reconciled with the basic First Amendment principle against compelled speech. The notoriously silent Justice Thomas did not speak but one would not expect him to change his mind.

That leaves Justice Gorsuch, who also asked no questions and made no comments. Thus, in order for agency fees to survive, public sector unions have to hope that he’s not the man they said he was when he was nominated for the Supreme Court. The National Education Association, for instance, strongly urged its members to tell their senators to vote against him. Perhaps Justice Gorsuch will surprise everyone and try to broker some compromise with the court’s liberals, but Mark Janus probably feels better right now than AFSCME.

The second thing we learned from today’s oral argument is that public sector unions are, by their own counsel’s admission, extortion rackets. In his closing remarks, the AFSCME attorney made this shocking admission when arguing that the court should uphold Abood because of the “reliance interests” of the states:

Now, I’d like to turn to the reliance interest because, if the other side succeeds in persuading a majority of you to overrule Abood, it will affect thousands of contracts and, more importantly, it is going to affect the work of state legislatures, city councils, school districts, who are going to have to go back to the drawing board in deciding what are the rules for negotiating and how that works.

And what that means is that the key thing that has been bargained for in this contract for agency fees is a — a limitation on striking. And that is true in many collective bargaining agreements.

The fees are the tradeoff. Union security is the tradeoff for no strikes. And so if you were to overrule Abood, you can raise an untold specter of labor unrest throughout the country.

In short, if you strike down agency fees, we’re going to go on strike. The English language has blessed us with a word for such threats: extortion. One suspects that Mr. Frederick will wish he had concluded his remarks differently.

— Joshua Dunn

Joshua Dunn is professor of political science at the University of Colorado–Colorado Springs.


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