(Wall Street Journal)—The Supreme Court closed its term this week with what Jacob Huebert calls “a perfect decision for worker freedom.” In a landmark First Amendment case, the justices ruled 5-4 Wednesday that the government may not authorize labor unions to exact fees from public employees who choose not to join.
For six years, in a series of majority opinions written by Justice Samuel Alito, the court had signaled that such a decision was in the offing. It was widely expected in 2016, when a similar case was heard. Then Justice Antonin Scalia died, leaving the court with a 4-4 deadlock. The vacancy apparently prompted a change in the unions’ litigation strategy, the ironic result of which was that Wednesday’s case, Janus v. American Federation of State, County, and Municipal Employees, arrived more quickly than it otherwise might have.
Mr. Huebert, 39, is director of litigation for the Liberty Justice Center, a public-interest law firm in Chicago. He and Bill Messenger, 43, of the National Right to Work Legal Foundation led the team that won the case on behalf of Mark Janus, a Springfield, Ill., social worker.
A state employee, Mr. Janus, 65, had declined to join the union for political reasons. “Mark’s view,” Mr. Huebert says, “is that the things that Afscme has advocated have gotten Illinois into the bad financial shape that it’s in.” But under Illinois law, Mr. Janus was still required to pay Afscme a so-called agency fee—78% of regular union dues—to help cover its collective-bargaining expenses.
The rationale behind agency fees is that a union-negotiated raise or benefit goes to all employees, so a nonmember who doesn’t pay for that representation is a “free rider.” Unions also engage in political activities, including candidate endorsements and electioneering, but in an agency shop only fees from members can be used for that. The high court imported this concept from the private to the public sector in a 1977 case, Abood v. Detroit Board of Education. It held that while governments could not make union membership a condition of employment, they could allow unions to impose agency fees to cover expenses “germane” to collective bargaining.
Drawing the line to separate such expenses, called “chargeable” in labor-law parlance, from nonchargeable political expenses proved a difficult, hairsplitting exercise. In a 1991 case, the high court held that, in Mr. Messenger’s words, “lobbying is not chargeable—unless you’re lobbying for the enforcement or ratification of the collective-bargaining agreement.”
For public workers, Mr. Janus and his lawyers argued, the entire distinction was spurious. When the people on the other side of the negotiating table are government officials, Mr. Messenger says, “collective bargaining is basically like lobbying,” or like “petitioning the government for redress of grievances”—either of which is a “core First Amendment activity.” In this view, requiring a government employee to pay an agency fee is the equivalent of forcing him to take an oath against his conscience.
“Everything a public-sector union does is political,” Mr. Huebert says. Illinois’s Afscme Council 31, which he calls “an incredibly influential force in state politics,” has spent years “deadlocked” in negotiations with Republican Gov. Bruce Rauner. “They’ve been advocating not only increased pay and increased benefits, but also increased taxes,” Mr. Huebert says. “That’s part of the bargaining—that they tried to get the governor to join with them in advocating for higher taxes.” Under Abood, the union could still fund that activity with money from dissenters like Mr. Janus.
The first creaks in Abood’s foundation were heard in 2012. A National Right to Work lawyer went before the justices to argue a case called Knox v. Service Employees International Union, which challenged what Mr. Messenger calls “an obnoxious scheme by the SEIU in California.” The union had imposed a “special assessment” on members and nonmembers alike for “a political fight-back fund” to oppose three 2006 ballot measures backed by Gov. Arnold Schwarzenegger. When nonmembers complained, Mr. Messenger says, the SEIU promised to “refund the money after the campaign’s over, in the next dues cycle. So basically, it’s like a forced loan for a political campaign.”
The justices held 7-2 that this scheme was unconstitutional. Because it clearly involved nonchargeable political activity, the case didn’t implicate Abood. But Justice Alito, in a majority opinion joined by four colleagues, criticized Abood as having been decided “without any focused analysis.”
He went much further in Harris v. Quinn (2014), which Mr. Messenger argued before the high court. It involved a scheme initiated by Illinois’s former Gov. Rod Blagojevich, in which the state government declared that people who accepted Medicaid payments to care for a disabled person at home were, as Mr. Messenger puts it, “public employees solely for purposes of labor law.” Many of them were caring for their own parents or children, but the SEIU chapter grabbed a share of their subsidy as dues or agency fees.
As in Knox, the issues Harris raised were too narrow to require a reconsideration of Abood. But in a 5-4 decision against the SEIU, Justice Alito delivered a scathing critique of the 1977 ruling, which he called “questionable on several grounds.” Among other faults, he wrote, the justices who decided Abood had “seriously erred” in interpreting earlier cases, “fundamentally misunderstood” one of them, and “failed to appreciate” the difference between public- and private-sector unions, as well as “the conceptual difficulty of distinguishing” chargeable expenses from nonchargeable ones in the government context. He added that “a critical pillar of the Abood Court’s analysis rests on an unsupported empirical assumption.”
Although near collapse, Abood was still binding on the lower courts, meaning that unions were assured of winning any challenge at the district and appellate levels. Justice Alito and his colleagues seemed to be inviting precisely that: a case they could use to overturn Abood. One possibility was Janus, which was launched in 2015 when Gov. Rauner petitioned a federal court to approve his executive order banning agency fees. The court held that the governor lacked standing to bring such a claim, but it allowed the case to proceed with Mr. Janus as lead plaintiff.
Importantly, the court also held that public unions can collect fees only from employees who “affirmatively consent” to pay them. Mr. Messenger explains: “The unions take the position that it’s not a First Amendment injury unless the individual complains about it.” Since Harris, for instance, some states have continued collecting agency fees from home-care workers, refunding the money only if the nonmember demanded it. “Knox sharply criticized the idea of objection requirements,” Mr. Messenger says. Janus struck them down altogether.
But there are other strategies that unions—and their supporters in state legislatures—are sure to employ to limit the effects of this week’s ruling. “Four states,” Mr. Messenger says, “have actually passed laws forcing every public employer to negotiate with the union about having a mandatory orientation” for new employees.
“Imagine it’s your first day on a job somewhere,” he says. “You’re just going through the forms. They say, ‘Hey, this union—sign this card,’ and, ‘Oh yeah, by the way, you’re going to go meet with the union organizer in 30 minutes, everybody is going to sign.’ It’s a very coercive kind of setup.” He offers an analogy: “Imagine if the state of Texas said: Anyone who wants to own a firearm, you have to go down to the National Rifle Association, attend a 60-minute meeting [to] get you to join the NRA. The ACLU would be screaming bloody murder.” (The American Civil Liberties Union had stayed out of these labor cases until this year, when it filed a friend-of-the-court brief urging the justices to reject Mr. Janus’s First Amendment claim.)
When it comes to tilting the field in favor of unions, Mr. Messenger says, “California seems like they keep inventing new things.” The same day the court decided Janus, Gov. Jerry Brown signed a state budget with a provision that “the timing of the mandatory orientations is not public record—it can’t be disclosed to the public,” in Mr. Messenger’s words. An earlier law provides that “the names, contact information, of public employees is not a public record, and can only be given to a union.”
Another tactic that burdens workers’ First Amendment rights is to permit them to rescind union membership only during a brief annual window. “So if the card says an individual can only revoke between Dec. 25 and Jan. 5,” Mr. Messenger says, “the public employer must keep taking the money, no matter how much the employee complains.” Sometimes the card doesn’t even inform the worker of this date limitation: In Hawaii and New Jersey, the window is codified into statute.
Because of tactics like these, even a favorable Supreme Court ruling doesn’t necessarily end the matter. After the justices decided Harris, Mr. Messenger petitioned the courts for the refund of some $32 million in fees the SEIU had wrongly collected from home-care workers. Even after losing in court, the union took the position that nonmembers were entitled to a refund only if they individually requested one. The Seventh Circuit agreed, and in January Mr. Messenger appealed the case, Riffey v. Rauner, to the Supreme Court.
On Thursday the justices vacated the circuit court’s ruling and sent the case back “for further consideration in light of Janus.” The high court’s holding on affirmative consent ought to oblige the appellate judges to rule in favor of Mr. Messenger’s clients. That would likely resolve things—but should Riffey reach the Supreme Court again, Mr. Messenger hopes there will be a full complement of nine justices.