Agency Fees Could Be Back on Death Row

“Elections have consequences,” President Obama once said. Teachers unions might soon feel the full force of that harsh truth.

Before Justice Scalia passed away in February of 2016, the Supreme Court was set to strike down “agency fees,” which allow public sector unions to force non-members to pay for the collective bargaining efforts of the union. This compelled financial support is vital for teachers unions’ political advocacy. Losing the ability to coerce teachers into donating would turn off a cherished financial spigot. But Scalia’s death led the Supreme Court to grant agency fees a stay of execution, with a 4-4 decision in Friedrichs v. California Teachers Association. After that, public-sector unions must have felt even more confident, as the Republican Party proceeded to nominate Donald Trump, all but giving Hillary Clinton the White House and the opportunity to nominate Scalia’s replacement. Agency fees seemed secure.

Oops! It appears the political gods might not like agency fees. With Trump’s victory and successful nomination of Neil Gorsuch, agency fees could soon be facing the Supreme Court firing squad once again. On Tuesday, Mark Janus, a child support specialist from Illinois, asked the Supreme Court to hear his case, Janus v. AFSCME (American Federation of State, County and Municipal Employees). As a state employee he is compelled to pay union dues even though he says it doesn’t “do a good job representing my interests.” Why, he asks, should he be compelled to speak on behalf of causes that he does not support? Surely the First Amendment protects against coerced speech.

Janus lost at trial and before the 7th Circuit Court of Appeals. Appropriately, both courts held that since the Supreme Court had refused in Friedrichs to strike down Abood v. Detroit Board of Education, the 1977 decision allowing agency fees, that precedent was controlling on Janus’s claim. Those decisions cleared the way for Janus to petition the Supreme Court.

Only four justices must agree to hear a case, so presumably the four who sided with Friedrichs will vote to hear Janus’s case. If they do, and Gorsuch votes according to expectations, agency fees could be dead by the end of the court’s next term. Of course, Gorsuch could do something unpredictable, but his record indicates that unions shouldn’t count on him to come to their rescue. It is no wonder that they are already planning how to survive in a post agency-fee world.

— Joshua Dunn

Joshua Dunn is professor of political science at the University of Colorado–Colorado Springs.

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