George F. Will: Case gives high court opportunity to correct union-fee coercion
Overturning mistaken decisions is an occasional duty of the Supreme Court, whose noblest achievement was the repudiation, with Brown v. Board of Education (1954) and subsequent decisions, of its 1896 ruling that segregated “separate but equal” public facilities were constitutional. On Monday, it will hear oral arguments that probably will presage another overdue correction.
The issue: Are Mark Janus' First Amendment rights of freedom of speech and association (which entails freedom not to associate) violated when government requires him, an employee, to pay “fair share” or “agency” fees to a private entity, a labor union, to which government has given exclusive power to represent him, although he chooses not to be a member?
The court's 1977 Abood decision upheld such fees but contained the seeds of its coming — by June — reversal: “because public employee unions attempt to influence governmental policymaking, their activities ... may be properly termed political.” Abood made compulsory political contributions constitutional. But in 2014, the court said it is a “bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”
In the 27 right-to-work states, employees cannot be forced to join a union as a condition of employment. In the other 23, including Janus' Illinois, workers must join a union or pay fees. The supposed constitutionality of this rests on the fiction that these fees pay only the costs of collective bargaining, from which the fee payers benefit.
In public-sector collective bargaining, government “negotiates” with unions that have an interest in government doing what it wants to do anyway: expand. Because government is both employer and policymaker, such union bargaining is inherently political advocacy and indistinguishable from lobbying. FDR was right: “The process of collective bargaining, as usually understood, cannot be transplanted into the public service.”
Union officials' salaries and benefits are the biggest union expense that Janus is forced to finance. It is implausible that most of what they do is devoted exclusively to collective bargaining and hermetically sealed from promotion of their broad political agenda.
Many Democrats, distraught about “too much” money in political campaigns, will be seriously distraught if Janus wins, stopping the coerced flow of money to public-sector unions, which spent $63.9 million on politics, 90 percent supporting Democratic candidates and causes, in the 2016 election cycle.
George F. Will is a columnist for Newsweek and The Washington Post. His wife, Mari Will, is an adviser to Illinois Gov. Bruce Rauner, who originally filed the lawsuit that became Janus v. AFSCME.