Op-Ed: Unions are as weak as they’ve been in a century. The Supreme Court’s Janus decision will gut them further
While the Supreme Court’s Janus vs. AFSCME decision will be debated for years, there’s no debating that it will be a severe blow to the nation’s labor unions.
By ruling that government employees can’t be required to pay any fees to the unions that represent them, the court is likely to cause a substantial drop in union revenues and union power at a time when organized labor is already at its weakest point in nearly a century.
The Janus decision applies to California and 21 other states that require government workers to pay so-called fair share fees to their unions, and by some estimates, 10% to 30% of unionized public employees in those states might now decide to stop paying union fees. That could cause public-sector unions to lose $1 billion in revenue, perhaps forcing them to lay off lobbyists and organizers. This would make it harder for them to unionize more workers or lobby for a higher minimum wage or better student-teacher ratios.
By a 5-4 vote, the court held that requiring government employees to pay union fees violated their 1st Amendment rights. Writing for the majority, Justice Samuel A. Alito said such fees improperly forced some workers to back unions on issues they might disagree with — for instance, teacher tenure.
The Janus case will tilt politics further against workers at a time when the American worker is already on the losing side in many policy battles.
The ruling will further skew the huge imbalance in campaign financing that already favors business. In the 2015-16 election cycle, business outspent labor 16 to 1 in the presidential, Senate and House elections — or $3.4 billion to $213 million — according to the nonpartisan Center for Responsive Politics.
As for lobbying, all of the nation’s labor unions taken together spend about $45 million a year in Washington, while corporate America spends $3 billion on lobbying. That’s a ratio of 66 to 1. Little wonder that Congress was quick to enact a big corporate tax cut, while it has refused to enact pro-worker measures like a higher minimum wage or paid sick leave.
The Janus case will tilt politics further against workers at a time when the American worker is already on the losing side in many policy battles. Republican lawmakers in Wisconsin and Iowa have crippled public employees’ ability to bargain. The federal minimum wage hasn’t risen in a decade, and it is now 37% below its 1968 level after factoring in inflation. The Trump administration has delayed various job safety regulations from taking effect and hinted it may rescind a rule requiring Wall Street firms to act in the best interests of workers and retirees in handling their 401(k) investments. Trump’s National Labor Relations Board has taken numerous steps to make it harder for workers to unionize.
Just 10 minutes after the Janus decision was released, President Trump tweeted, “Big loss for the coffers of the Democrats!” The ruling showed that Senate Majority Leader Mitch McConnell’s decision to block Merrick Garland’s confirmation to the Supreme Court and give that “stolen seat” to Neil Gorsuch, who cast the deciding vote, was a smart strategic move and long-term investment for the Republicans.
Janus continues a long string of landmark Supreme Court rulings that have favored Republicans: Bush vs. Gore, Citizens United and a series of decisions weakening Voting Rights Act enforcement, going easy on gerrymandering and upholding voter identification laws and voter purges. It also continues a string of anti-labor Supreme Court rulings, including Epic Systems, a decision last month that said companies did not violate employees’ rights when they barred workers from bringing class actions and instead forced them into often-secret individual arbitrations, which usually favor employers.
In his confirmation hearing, Chief Justice G. Roberts Jr. famously said, “My job is to call balls and strikes.” In joining the majority’s decision in Janus, Roberts and the court did far more than call balls and strikes. The decision overturned a 41-year-old precedent and a system of union fees that involves millions of workers and prevails in 22 states and the District of Columbia. In her dissent, Justice Elena Kagan wrote, “Rarely if ever has the Court overruled a decision — let alone one of this import — with so little regard for the usual principles of stare decisis,” i.e. judicial precedents.
The ruling also capped a six-year effort by Justice Alito to have the high court bar any requirements that public employees pay union fees. In the first few paragraphs of his majority opinion, Alito made clear that his efforts to weaken unions won’t stop with Janus. “Designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees,” he wrote. Under the American system of exclusive representation, when a majority of employees at a workplace vote for a union, that union becomes the exclusive representative of all that workplace’s employees in bargaining and enforcing contracts — no other union can participate or interfere. Alito sent a strong message that he believes that designating a union “exclusive representative” of all employees at a government workplace probably violates the 1st Amendment rights of those workers who might disagree with parts of their union’s bargaining stance.
The Janus case was financed by right-wing foundations and billionaires, including the Republican megadonor Richard Uihlein and the Koch brothers, who say they are fighting for workers’ rights. But many others see their efforts as a concerted assault against unions. If these billionaires are truly concerned about what’s good for workers — and not just about hobbling unions — why have they not pushed to strengthen occupational safety rules, raise the minimum wage or strengthen enforcement against wage theft?
Steven Greenhouse was a New York Times reporter for 31 years, including 19 covering labor and the workplace. He is currently writing a book, “Work in Progress: The Past, Present, and Challenging Future of American Labor.”
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