Abood is dead. Or, rather: Abood v. Detroit Board of Education is dead as a Supreme Court precedent. The 1977 decision had allowed public-employee unions to compel workers to pay the unions “agency fees” for representing them in collective bargaining.
The implications of Abood for speech rights had always been worrying. Unions spend a great deal of money on politics, which meant that workers were effectively forced to fund political views with which they might disagree. In theory, unions were supposed to exclude agency fees from political spending, but in practice, they didn’t, and the process of reclaiming the funds was so onerous that workers often didn’t bother. Moreover, money is fungible: Fees from nonmembers for collective bargaining freed up members’ dues to be spent on politicking. And the unions’ accounting for their political spending could be somewhat lax.
One could even object that, for a public-sector union, collective bargaining itself is inherently political: Its object is to set matters of public policy, such as wages and working conditions. So Abood has long had enemies in the free-speech community, as well as among critics worried about disproportionate political power those agency fees helped unions wield.
Illinois state employee Mark Janus was evidently one of those critics. He sued, claiming that agency fees violated his First Amendment rights, and on Wednesday the Supreme Court ruled in his favor. Writing the majority opinion in the 5-to-4 decision in Janus v. AFSCME, Justice Samuel Alito Jr. described Abood as “poorly reasoned” and “an outlier among the Court’s First Amendment cases.” It is now lying out very far indeed — in the cemetery of other legal dead letters.
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Why should you care that Abood has died? Two reasons — one legal, one political.
Unless you’re a government worker, the ruling won’t directly affect your job because it applies only to government employment. But if you care about your right to speak freely without government interference — and you should — then you will be glad to hear that the Supreme Court is fiercely protecting First Amendment rights even in cases where there are arguably other compelling interests at stake.
The other reason Janus matters is its likely impact on public-sector union membership and, therefore, on American politics.
A recent working paper from the National Bureau of Economic Research suggests that right-to-work laws, which have effects closely related to those likely to come from this ruling, make a political difference. By a small but significant amount, they reduce voter turnout, Democratic vote share and union contributions to the campaigns of Democratic politicians. The results ultimately show up in the affected governments taking a more conservative policy direction.
If you lean conservative, you will probably rejoice at the Janus news; if you lean left, you will probably fume at the injustice. Certainly, it’s hard to celebrate lower voter turnout. But before you celebrate or grieve too wildly, remember that the effects are likely to be modest. The best estimates are that the public-sector unions will lose some members and money, but not a catastrophic amount. Daniel DiSalvo, a political scientist and fellow at the Manhattan Institute, estimates the likely attrition at between 5 and 30 percent, depending on the union.
Remember also that the Janus decision comes at a time when the need for fiscal flexibility — to which public-sector unions are a major obstacle — is extremely high, thanks to the looming public- sector pension crisis. When the left talks about public-sector unions, it tends to focus on the wages, benefits and working conditions that the unions secure for their workers. Agreed, states should pay employees decent salaries and treat them well. But if powerful public-sector unions can effectively choose their bosses and then demand that those bosses give them artificially generous employment terms in return, that means less money going to the people the government is supposed to help. The special nature of government employment is why even Franklin D. Roosevelt didn’t support the idea of unionizing the public sector.
Balancing the government’s obligations to its workers with its need to provide current services is always difficult. But it gets harder when mandatory union fees give unions disproportionate power in those fights — which these days are often about retiree pensions and benefits that don’t even pay for current services, but for work that was already done. The more powerful the unions are politically, the more likely it is that whatever resolution is ultimately reached will end up unfairly favoring a relatively small number of workers over the rest of the public, including some of the most disadvantaged citizens. And given how pressing those needs are, even the left might well decide not to cry too hard at Abood’s funeral.