Last week, the US Supreme Court announced that it would hear Janus v. American Federation of State, County, and Municipal Employees (AFSCME). While it is among the biggest cases on the court’s docket next year, it certainly holds the biggest stakes when it comes to public education. The case deals with mandatory union agency fees, which plaintiff Mark Janus, a child support specialist at the Illinois Department of Healthcare and Family Services, argues violate his First Amendment rights to free speech and free association.
Illinois state law “compels state employees to pay agency fees to an exclusive representative for speaking and contracting with the state over governmental policies.” In short, non-union employees must pay unions, as the exclusive employee representatives in collective bargaining, to negotiate contracts on their behalf. Janus has long been critical of both the union and forced association through agency fees. He wrote last year in the Chicago Tribune, “The First Amendment guarantees freedom of speech and freedom of association. I don’t want to be associated with a union that claims to represent my interests and me when it really doesn’t.”
Janus targets a forty-year-old precedent set by Abood v. Detroit Board of Education, which permits allowing agency fees as a means to avoid a “free rider” problem: non-union members benefiting from union representation in contract negotiations, but not paying for that service. Abood allows agency fees, so long as the fees are limited to the portion of membership dues used solely for collective bargaining, and are separated from funds used for political purposes. Critics argue that agency fees make financially supporting a union, and its politics by extension, a precondition of public employment.
Janus follows Friedrichs v. California Teachers Association, a 2016 US Supreme Court case that almost brought an end to agency fees. Friedrichs, a public school teacher forced to pay agency fees to the California Teachers Association (CTA), brought suit using a First Amendment argument similar to Janus’s, also targeting Abood. Friedrich’s case made it to the Supreme Court, where a majority of justices seemed ready to rule in her favor and against the constitutionality of agency fees. But things changed when Justice Antonin Scalia died unexpectedly a month after oral arguments. That March, an equally divided eight-member court deadlocked on Friedrich’s case, leaving Abood intact.
A year-and-a-half later, following the appointment of Neil Gorsuch, the prospects look good for Janus, and, as they did leading up to Friedrichs, pretty bleak for agency fees and the union strength that depends on them. The immediate consequence of a Janus victory would be that public sector unions could no longer force nonmembers to pay agency fees. This would cause unions’ revenues to drop in the twenty states that allow agency fees. But that’s only the beginning. Taking away these fees would dramatically increase the real cost of union members’ dues. As I explained in the context of Friedrichs, in California, the real cost now is about $350, the difference between $1,000 in dues and the $650 fees. Without fees, the choice would be between $0 and $1,000, so the cost would rise to $1,000. This increase would encourage uncommitted members to leave and discourage new teachers from joining. Without agency fees, union membership would decline in states that now allow agency fees, and they would have far less political power.
The dramatic changes in costs would have outsized impacts on union membership and power. We have seen this play out before. In 2011, Wisconsin Gov. Scott Walker signed Act 10, which did away with agency fees. The state’s largest teachers union, the Wisconsin Education Association Council (WEAC), saw a dramatic decrease in membership over a short period of time: falling from about 98,000 members in 2011 to about 40,000 in 2015. But, as the graph below shows, membership declines are only part of this story. WEAC’s annual expenditures on lobbying ranged from half to one-and-a-half million dollars from 2005 to 2010, peaking at $2.25 million during its fight to stop Act 10 in 2011. After 2011, WEAC’s lobbying outlays have remained under $150,000, and hours spent lobbying dropped dramatically as well.
It’s unclear how much of this drop should be attributed solely to the elimination of agency fees, as Act 10 included other measures to curb union power, but the overlap between the states that allow agency fees and union power is evident across the country.
The Thomas B. Fordham Institute released a study in 2012 that makes a state-by-state comparison of the strength of teachers unions. Measuring Union strength through numerous variables, they sorted the states into five categories, from strongest to weakest, each containing about ten states. All ten of the strongest, and eight out of ten of the strong states, allow unions to collect agency fees from nonmembers. The number of states allowing agency fees continues to decline with weaker union strength. Fewer than half of states with average union strength, four out of ten weak union states, and only one out of ten of the weakest union states, allow unions to collect agency fees.
If the judicial scales tip in favor of Janus—and it looks like they will—unions will enter a new era, and for them it looks pretty dreary. Losing agency fees would shrink teachers unions’ membership and clip unions’ political and economic wings not only in the twenty remaining states with agency fees, but also in the national headquarters that depend on these states for a disproportionate share of their membership and funds.
Could this be the end of unions? Probably not, but to maintain their power and influence, teachers unions will need to refocus on working on behalf of their members, in order to make a clear value proposition to teachers. Their chief challenge will be making the case to teachers that union membership—and dues—are worth the full cost of membership. Eliminating agency fees will almost certainly shrink unions, but it could also make them more energized, since remaining members would be the truly committed. What will happen to public schools after the most powerful force in the politics of education has its wings clipped? It looks like we are about to find out.
Editor's note: This article originally appeared in a slightly different form on the AEIdeas blog.
Nat Malkus is a resident scholar and the deputy director of education policy at the American Enterprise Institute, where he specializes in K–12 education.
The views expressed herein represent the opinions of the author and not necessarily the Thomas B. Fordham Institute.