The Friedrichs lawsuit should have done the trick. The case — full name: Friedrichsv. California Teacher’s Association — which would have made belonging to a public-employee union optional as a condition of employment nationwide, was set to pass muster with the Supreme Court last year. But when Justice Antonin Scalia died in February 2016, the almost certain fifth and deciding vote went with him, thus keeping half the country’s government workers forcibly yoked to unions.
But now a case similar to Friedrichs is upon us. On June 6, the National Right to Work Legal Defense Foundation asked the Supreme Court to hear Janus v. AFSCME, a case involving plaintiff Mark Janus, a child-support specialist who works for the Illinois Department of Healthcare and Family Services and is compelled to send part of his paycheck to the American Federation of State, County and Municipal Employees, even though he says that the union does not “represent his interests.” Right-to-work proponents are optimistic that the Court will hear the case and that Neil Gorsuch, Scalia’s replacement, will come down as the fifth vote on the side of employee freedom and overturn the 40-year-old precedent established in Abood v. Detroit Board of Education, in which the Supreme Court held that states may force public-sector workers to pay union dues, while carving out an exception for the funds that unions spend on political activity. Not surprisingly, the squawking from the union crowd has already begun. At Education Week, Mark Walsh refers to the litigants as “anti-union.”
The Janus case concerns only compulsory dues, or what the unions euphemistically refer to as “fair-share” payments. The Economic Policy Institute, an organization with strong ties to organized labor, claims that prohibiting fair-share payments could “profoundly affect the ability of millions of public-sector workers to improve their wages and working conditions and further the wage stagnation dragging down the economy.” But EPI is on thin ice here. First, the case will not affect unions’ ability to collectively bargain for their members. Second, between 1995 and 2015, the seven states with the highest private-sector job growth were all right-to-work, according to the U.S. Bureau of Labor statistics. Additionally, Mackinac Center director of labor policy F. Vincent Vernuccio and reporter Jason Hart point out that “from 2012, the year Michigan passed right-to-work, until mid-2015, incomes in Michigan rose over nine percent, faster than the national average.” Former research fellow in labor economics at the Heritage Foundation James Sherk explains that “studies that control for differences in costs of living find workers in states with voluntary dues have no lower — and possibly slightly higher — real wages than workers in states with compulsory dues.”
Benjamin Sachs, a Harvard Law School professor specializing in labor law, calls Janus part of “an aggressive litigation campaign aimed at undermining unions’ ability to operate by forcing them to represent people for free.” In fact, the only laws that compel a union to represent all workers are on the books at the behest of the unions. As teacher union watchdog Mike Antonucci writes, “The very first thing any new union wants is exclusivity. No other unions are allowed to negotiate on behalf of people in the bargaining unit. Unit members cannot hire their own agent, nor can they represent themselves.”
Even if the Court decides to hear the case, a decision in Janus is most likely a year off. But the unions are planning for the worst-case scenario. California Teachers Association Executive Director Joe Nuñez wrote in January that the CTA should be prepared for a 30 percent to 40 percent membership drop, but then hedged, saying that he doesn’t believe that the decline would be that dramatic. (Actually, CTA has been anticipating a post-Abood world for several years. In 2014, the union cooked up a PowerPoint presentation called “Not if, but when: Living in a world without Fair Share.”) New York City teachers’ union leader Michael Mulgrew says that a national right-to-work outcome is inevitable. “We are going to become a right-to-work country. We are preparing for what we will do when that happens on the state and city levels. It depends on the provision in the laws and what states can do within that law — some states sign up members every year, others sign once.”
But whatever the membership drop might be, it will be damaging to the unions and could have widespread ramifications. And perhaps no group will be more affected than the Democratic Party. Naomi Walker, an assistant to AFSCME president Lee Saunders and a former Obama administration appointee, said that Janus “could undermine political operations that assist the Democratic Party.” She added, “The progressive infrastructure in this country, from think tanks to advocacy organizations — which depends on the resources and engagement of workers and their unions — will crumble. We need the entire labor and progressive movements to stand with us and fight for us. We may not survive without it — and nor, we fear, will they.”
It’s worth noting that in Wisconsin and Michigan, two recent entries in the right-to-work column, teachers’ union participation is down considerably. Wisconsin’s NEA affiliate has lost almost 60 percent of its members and Michigan about 20 percent thus far. The loss of these unions’ political clout certainly was a factor in giving Donald Trump narrow victories in both states. Should the Court decide for Janus in Janus, neither the apocalypse nor utopia will be upon us, but much will change. Most notably, many government workers will have much freedom than they have now, and the Democratic Party won’t have the same bundles of cash flowing from union piggy banks.