Twenty states are backing a lawsuit seeking to overturn mandatory union membership for public sector employees, arguing that forcing them to pay fees is akin to "the forced subsidization of a political party."
The states, led by Michigan Attorney General Bill Schuette (R), filed an amicus brief to the Supreme Court voicing their support for Illinois state worker Mark Janus's lawsuit against the American Federation of State, County, and Municipal Employees (AFSCME). The suit seeks to bar government agencies from requiring union dues or fee payments as a condition of employment. The states argue that the Supreme Court erred in the 1977 Abood v. Detroit Board of Education, which said such arrangements were constitutional.
"Amici States have a vital interest in protecting the First Amendment rights of public employees, and in the fiscal health of state and local governments," the brief says. "Given the enormous power of the modern public-sector union and the often vast public-policy consequences of its collective bargaining activities, requiring a public employee to subsidize those activities is materially indistinguishable from the forced subsidization of a political party."
Janus and his co-plaintiffs object to paying fees to AFSCME because they see it as compelled political speech. The government, they argue, is forcing them to subsidize a political organization. Janus told the Washington Free Beacon after the court agreed to take the case that he objects to being "forced to pay a group for an association I don't agree with."
The states argue that public sector unions are inherently political organizations since bargaining directly affects government budgets and compared unions to "lobbyists" for making claims on taxpayer money. Unlike private sector unions, the issues of worker wages, benefits, and work rules extend beyond the relationship of employer to employee. Union contracts affect how public policy is set, according to the states.
"It is time to abandon the meaningless distinction between collective bargaining and other political activity," the brief says. "When the party on the opposite side of the table is the government, bargaining is unavoidably about the use of public resources and about how elected officials will govern."
Schuette pointed to infamous municipal bankruptcies in Detroit and Stockton, Calif. to demonstrate the point. Much of the city's debt was tied directly into pension payments and other generous benefits that brought the city to the brink of collapse. While a private sector bankruptcy affects workers, investors, other stakeholders, a government case hits the entire public.
"Issues at the heart of Detroit's collective bargaining contributed directly and significantly to the City’s financial distress. Detroit’s financial shortfalls and inefficiencies—of which pension and other employment-related debts constituted a large percentage—had enormous public impact on the people of Detroit, the State of Michigan, and beyond," the brief says. "The City of Detroit's dispute with unions about controversial pension fund practices illustrates the direct and far-reaching public consequences of policy topics at the heart of collective bargaining."
This is not the first high court case about government unionism. The Supreme Court deadlocked 4-4 on California teacher Rebecca Friedrichs's lawsuit challenging her teachers union following the sudden death of Justice Antonin Scalia in 2016. Janus v. AFSCME has attracted the support of other government workers. A group of Pennsylvania teachers filed an amicus brief to the court saying they are forced to pay for representation that does not reflect their beliefs.
"This Court should favor protecting nonmembers' First Amendment rights and offer a non-impinged off-ramp to those who disagree with their compelled representatives' political activities and positions," the brief says.
Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Missouri, Nebraska, Nevada, Oklahoma, South Carolina, Tennessee, Texas, Utah, West Virginia, and Wisconsin joined Michigan in filing the brief. Those states have right to work laws, which prohibit mandatory unionism in the private sector, and are led by Republican attorneys general.