Supreme Court Grapples with Constitutionality of ‘Fair Share’ Union Fees

Shareholder Advocate Spring 2018

April 24, 2018

In Janus v. AFSCME Council 31, et al., the Supreme Court heard oral argument recently on whether an Illinois law requiring nonunion public employees to pay partial fees to unions that negotiate on their behalf violates their constitutional right to free speech. A decision against the unions would undo forty years of precedent and financially devastate organized labor in its last stronghold, the public sector.

In bringing this case, state employee Mark Janus has asked the Court to overrule the 1977 decision Abood v. Detroit Board of Education. Under Abood, non-members can opt out of paying for a public employee union’s political activities but may be required to pay “fair share” fees to support services a union is statutorily required to provide all employees, such as negotiating collective bargaining agreements.

Mr. Janus argues that a union’s bargaining against the government is not government speech expressed through employees but rather advocacy or political speech expressed through an independent interest group. As such, to require non-member employees to pay fees that subsidize the union’s bargaining infringes the non-member employees’ First Amendment rights to choose which political speech is worthy of their support.

This position appeared to resonate with conservative justices during the February 26 hearing. Justice Samuel Alito was particularly vocal, asking at one point: “When you compel somebody to speak, don’t you infringe that person’s dignity and conscience in a way that you do not when you restrict what the person says?”

Read Supreme Court Grapples with Constitutionality of ‘Fair Share’ Union Fees.