On September 28th, the U.S. Supreme Court agreed to decide whether a public sector employee who is not a union member can be required to pay "agency fees" to a union. Twenty-two states, including California, currently compel public employees to pay these fees.

The case under review is Janus v. AFSCME. Mark Janus and several other Illinois state employees contend that requiring them to pay fees to the AFSCME union violates their First Amendment free speech rights because wages, pensions, and benefits issues are political in nature. They assert that everything public unions do is inherently a matter of public concern because the salaries and benefits unions negotiate are paid by taxpayers. They have asked the Supreme Court to overrule its 1977 decision, Abood v. Detroit Board of Education. In Abood, the Court unanimously held that public sector unions could make nonmembers pay for activities such as collective bargaining and contract administration, but not for unions’ political donations or lobbying efforts.

The Supreme Court will issue its ruling by next June. Given two recent Court rulings and the current makeup of the Supreme Court Justices, the Abood decision likely will be overturned. Last year, the Supreme Court heard a similar case, Friedrichs v. California Teachers Association. Conservative Justice Antonin Scalia died before the Court issued its decision. Of the eight remaining Justices, the four most conservative Justices held that mandatory public agency fees were unconstitutional. The four most liberal Justices held that the fees were permissible. The deadlock rendered the ruling without precedential value.

In 2011’s Knox v. SEIU decision, the Court held that a union needed to get prior permission from non-union members before assessing them with fees used for political purposes. In short, it ruled that opt-out provisions for these fees were insufficient; opt-in fees were required. In nonbinding dicta in this decision, Justice Alito seemed to criticize the Abood case, stating that allowing compulsory agency fees was "something of an anomaly" in First Amendment jurisprudence. Joining him in this observation were Justices Roberts, Kennedy, Thomas, and Scalia. All but Justice Scalia are still on the bench.

New Supreme Court Justice Neil Gorsuch has consistently voted with the Court’s more conservative members and, therefore, is likely to vote in favor of disallowing mandatory agency fees.

Projected Effect of Disallowing Mandatory Agency Fees It is logical to predict that overturning agency fees would weaken public sector unions. Furthermore, the experience of private industry is instructive. A 2016 study compared three states that had recently enacted "right-to-work" laws banning mandatory union fees in the private sector with three states that required such fees. The states with right-to-work laws lost over two percent of their union membership in a five-year period while the three other states lost only 0.2 percent of their union members.

Furthermore, the unions would have to do the same amount of work with less money. Since federal law requires unions to negotiate on behalf of all members of a bargaining union and to address their grievances regardless of whether they have paid union dues, public sector unions that lose some agency fees would not face a reduction in their workload.

Of course, this is merely informed speculation in advance of the Supreme Court’s ruling in the Janus case. We will keep you apprised of the Court’s decision.