The Face Behind the Case: Janus v. AFSCME, Dark Money, and the Future of Labor

In February, the Supreme Court heard oral arguments for Janus v. American Federation of State, Municipal, and County Employees, a case which will have far-reaching consequences for the labor movement. The case centers on the question of whether unions can compel non-members to pay a fee, usually referred to as an agency fee, which covers the expenses of representing the non-members. Under current law, states get to decide whether or not unions can compel non-members to pay these agency fees. Agency fees have been banned in 28 states, colloquially called “right-to-work” states — a branding coup for the right-wing in this country that any Madison Avenue agency would be proud of. If the court rules in favor of the petitioner, Mark Janus, as most people expect, then the public sector in every state will be “right-to-work” and public sector unions will not be able to charge agency fees.

The public sector is still a pillar of strength for the labor movement in an otherwise dismal landscape. Nearly four in 10 workers in the public sector are covered by a union contract, compared to less than seven percent in the private sector. Moreover, public sector union density has remained relatively stable since 1970 despite 40-plus years of relentless attacks by right-wing forces. A decision against unions would be the crippling blow to labor’s political strength. Such an outcome should concern every progressive because unions are the only institutions that can realistically push the interests of the working class and fight back against right-wing hegemony.

If one just takes a cursory look at the facts in the Janus case, it is easily believable that a result in favor of Mark Janus is fair and democratic. Why should anyone be compelled to pay fees to an organization that they do not want to join? The answer is that unions have a legal obligation to represent every worker covered by a union contract regardless of membership status. From the labor movement’s perspective, agency fees are just a means to recoup the costs associated with a service that unions are legally obligated to provide.

The Supreme Court has agreed with unions on this since at least 1977, when in Abood v. Detroit Board of Education, they ruled that public sector unions could charge a fee to recoup the costs of negotiating a contract and representing all workers regardless of their membership status because it would address the real moral hazard of free riders (workers who benefit from a union contract but don’t pay dues). Furthermore, the Supreme Court reasoned, agency fees were constitutional because they were essential element in maintaining labor peace. Janus argues that the Supreme Court erred in the Abood ruling because public sector employment is fundamentally different from private sector employment. Agency fees in the private sector are perfectly constitutional, and would remain so if the Court finds in favor of Janus. Unlike the private sector, however, negotiating a contract with the government is closer to lobbying. In the public sector salaries, pensions, and benefits for public employees touch upon too many policy issues and thus, contract negotiations, Janus argues, are inherently political. Therefore, agency fees in the public sector should be considered a violation of the First Amendment rights of non-members.

The Abood ruling was settled law for over 40 years. This all changed in 2012, when in the court’s opinion for Knox v. SEIU Justice Samuel Alito signaled that the right-wing faction of the Supreme Court was prepared to take on public sector agency fees. Alito wrote that decisions like Abood “approach, if they do not cross, the limit of what the First Amendment can tolerate.” With the Supreme Court’s blessing, right-wing anti-labor forces sprung to action and started lining up plaintiffs for the express purpose of getting an agency fee case in front of the Supreme Court.

The Janus case is the third such case argued before the Supreme Court since 2013. In the first case, Harris v. Quinn, the court’s opinion deemed agency fees for home care workers unconstitutional but stopped short of overturning Abood. Justice Alito, in writing the majority opinion, signaled once again that the court was ready to overturn Abood if the right case came up. That case was supposed to be Friedrichs v. California Teachers Association, which was argued in 2015. The labor movement, however, got an unlikely reprieve — call it a “dues” ex machina — when Antonin Scalia died suddenly.

For those of us in the labor movement, the claims made in Janus are not novel. They are the same ones the right has deployed for years as part of a well-orchestrated campaign to destroy the political clout of unions. All you have to do is follow the money and you will see that the National Right to Work Committee, which is bankrolling the Janus case, has deep connections to a network of right-wing organizations funded by the Koch Brothers and other aspiring corporate oligarchs. This network of right-wing non-profit organizations, which include the Koch-funded American Legislative Exchange Council and State Policy Network, has been dedicated to legally and legislatively stymieing the political work of labor unions for years.

Over the past decade, starting with passage of Wisconsin’s Act 10 in 2011, this “dark money” network has scored many major state legislative victories. Act 10, which ended collective bargaining for all public sector employees except firefighter and law enforcement officials, has led to plummeting union membership and revenue; an entirely predictable outcome. Building on this momentum, these same organizations have managed to pass “right-to-work” legislation in five more states, including the historically pro-labor states of Michigan and West Virginia. In 2018 the total number of “right-to-work” states in the United States is 28.

If the professed goal, as it is the stated in the Janus case, was to remedy the infringement of the individual rights of workers, then one would expect the assault on labor to stop at passing “right-to-work” legislation. But in “right-to-work” states the Koch’s octopus continues to find new and creative ways to eliminate labor as a political roadblock. The aim of one of the bills moving though many state chambers at the moment is to force public sector unions to recertify annually if their membership drops below 50 percent. Such legislation not only reduces a union’s ability to act politically, it will bring many unions to the brink of extinction. It is telling, however, that law enforcement unions are always exempted, a hint that political power, not principle, is the ultimate driver behind these efforts.

It is also not surprising that the political success of anti-union forces from 2011 onward has occurred entirely in the aftermath of another monumental Supreme Court decision. The floodgates of unlimited dark money released into our political system by the Citizens United decision has been a boon to conservative forces. In 2012 alone, organizations associated just with the Koch brothers spent over $400 million on politics, twice as much as the political spending of the top 10 unions combined.

The Citizens United decision and the series of Supreme Court cases on agency fees are a coordinated one-two punch by the forces of reaction: the first unleashed corporate money, the second is designed to handcuff the only institutions capable of keeping up with corporate political spending. The Fight for $15 and a Union movement is just one of the many examples of the ways the labor movement, despite diminished ranks, continues to fight for the interest of workers and against corporate profits. It may be impolitic to say but the Fight for $15 movement could not exist on this scale without the resources provided by the workers in the public sector. If the public sector went “right-to-work” it would greatly diminish the labor movements’ ability to engage in efforts like the Fight for $15, whose benefits to the working class do not depend on union membership.

Despite so many anti-labor victories and the precipitous decline in private sector union density, labor remains an essential counterweight to corporate dominance over our political system. It is not hyperbole to suggest that this is the result of the astounding stability of union density in the public sector, which has hovered around 35 percent since 1970. Much of this density in the public sector can be explained by organizing successes in deep blue states such as Illinois, New York, and California, where a path to win “right-to-work” legislation is politically constrained due to labor’s numerical strength in the electorate. The only viable way for the right to reduce labor’s power in these blue states and as a national political counterweight to corporate money is by asking the Supreme Court to ignore conservatives’ cherished principle of federalism and impose a right-to work-regime on the public sector in every state.

Given this context it is unsurprising that the initial plaintiff in the case was Illinois Governor Bruce Rauner, a former private-equity executive who has repeatedly clashed with organized labor in his state, particularly public sector unions. Governor Rauner was ultimately found to lack standing but by this time the Liberty Justice Center and the National Right to Work Committee managed to recruit Mark Janus and two other state employees to intervene in the case, which brings us to the present.

Many have argued that unions can survive a “right-to-work” public sector. After all, there are 28 states that are already “right-to-work” and even in states such as North Carolina where collective bargaining in the public sector is illegal, public sector unions have managed to survive. As a veteran of the labor movement, I know that the Janus decision will probably not be the end of all unions. I also know that the ability of unions to be a political counterweight is heavily curtailed in a “right-to-work” environment. To understand why, you have to understand union finances.

Even the most aggressively organizing-oriented unions spend over 80% of their resources on current member needs, leaving less than 20% to spend on new organizing and politics. However, in a “right-to-work” environment this percentage of resources dedicated to current member needs can be almost 100%. This is because overall revenue is drastically reduced, due to a reduction in total membership. The obvious driver of reduced membership are free riders, workers who opt out of membership but are still covered by the contract.

A second, and just as important factor, is turnover. Without agency fees new employees have to opt-in to membership and many times the union will not know that a new employee has been hired. In order to survive and cover the costs of negotiating and servicing collective bargaining agreements in a “right-to-work” environment, unions are forced to devote significant resources to recruiting members. This would be true even if the union did not also a have to fight a well-funded right-wing anti-union propaganda machine that spends millions to convince workers to drop their union membership. It is the aforementioned example that is the hope and desire of the right-wing force behind behind the Janus case. A right-to-work public sector will mean almost no resistance to the political agenda of capital.

To end the story here, however, would be a disservice to history because the conflict between capital and labor is not caused by existence of unions. In fact, the arrow of causality is in the opposite direction, and the legal framework of our labor laws are a historical consequence of this conflict. The Supreme Court, in the Abood decision admitted as much when the Court wrote that agency fees were constitutional not only because they dealt with the problem of free riders but also because the Court recognized that agency fees were important in maintaining labor peace. Put another way, the Abood decision not only considered constitutional jurisprudence but also recognized the agency fees represented a compromise that was beneficial to both labor and capital. Much to the chagrin of my many leftist friends, the labor movement continues to work within this legal framework, which practically criminalizes labor’s greatest tool – worker militancy, because it was earned through struggle.

The Janus decision will eliminate the final remnants of this historical compromise, a compromise that has been chipped away by right-wing forces for nearly half a century. Ironically, by permanently tipping the scales in favor of capital, the Janus decision will leave the labor movement with nothing left to preserve. We are already seeing signs that the political results of the dominance of corporate money, austerity, and income inequality have become untenable for workers, even in the reddest states. It would be fitting if a Supreme Court case named after the Roman God Janus manages to unfetter a cowed labor movement and unleashes a militant tsunami consisting of 15 million union members. In that case, the teachers’ strikes in West Virginia, Arizona, and Oklahoma, all “right-to-work” states, may very well portend the final outcome of the Janus decision.

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