In a 5-4 decision, the justices ruled that forced collection of so-called agency fees violates public employees’ First Amendment right not to back union activity. | Toya Sarno Jordan/Getty Images Supreme Court deals blow to public-sector unions Under right-to-work, unions may not recoup from union non-members their share of the cost of collective bargaining.

The Supreme Court ruled on Wednesday that public-sector unions may not charge non-members mandatory fees, dealing a financial blow to organized labor on the eve of a competitive midterm election campaign.

In a 5-4 decision, the justices ruled that forced collection of so-called agency fees violates public employees’ First Amendment right not to back union activity.


All five of the court’s Republican appointees joined in the ruling, with the four Democratic-appointed justices dissenting. The decision overturns a 41-year-old precedent in which the court unanimously found that such charges did not run afoul of the Constitution’s free-speech and free-association rights.

Wednesday's decision in Janus v. AFSCME is the second major blow to labor dealt this term by the Supreme Court, following its May 21 decision upholding employment contracts that bar workers from participating in class-action lawsuits. The Janus decision means that unions that represent state and local government workers henceforth must operate under “right to work“ rules, a limitation already imposed on unions that represent federal workers and on unions that represent private-sector workers in 28 states.

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Under right-to-work, unions may not recoup from union non-members their share of the cost of collective bargaining, even though the law requires those same unions to represent all members of a bargaining unit regardless of whether they belong to the union.

In 1977, the high court ruled in Abood v. Detroit Board of Education that public sector unions were permitted to collect fees from non-members to cover the cost of collective bargaining. The Janus decision overturns Abood, which Justice Samuel Alito called “poorly reasoned.”

“It has led to practical problems and abuse,” he wrote for the majority. “It is inconsistent with other First Amendment cases and has been undermined by more recent decisions."

President Donald Trump crowed about the victory on Twitter but misrepresented the purpose of the fees, claiming workers are now “able to support a candidate of his or her choice without having those who control the Union deciding for them.” Under Abood, agency fees were already barred from being used to support political candidates.

The lawyers arguing for plaintiff Mark Janus, an Illinois state worker who declined to join the American Federation of State, County, and Municipal Employees, never claimed that this wall had been breached. Rather, they argued that all nonpolitical activities undertaken by a public employee union, including collective bargaining, were inherently political because they concerned the expenditure of public funds.

What Trump did get right was that the decision was a “big loss for the coffers of the Democrats.” Government unions account for about 6 percent of the money spent on Democratic candidates in federal elections, and that doesn't include significant in-kind contributions that these unions provide through such activities as phone banks, door-to-door leafleting, and driving voters to the polls on Election Day. The ruling means unions will have to redirect funds toward “internal organizing” efforts to staunch the flow of workers who might want to leave the union.

Writing for all four liberal justices, Justice Elena Kagan harshly criticizing the conservative justices for subverting the democratic process, accusing them of becoming “black-robed rulers overriding citizens’ choices.”

“Today, that healthy — that democratic — debate ends,” she wrote. “The majority has adjudged who should prevail.”

Labor advocates echoed Kagan’s sentiments, calling the decision an attack on workers' right to associate.

“This Supreme Court has shown a complete disdain for workers and their voice,” said Catherine Ruckelshaus, legal director for the National Employment Law Project. “It shows a deep misunderstanding about what the role of unions are in our country.”

Unions have complained that right-to-work creates a “free rider” problem for unions, wherein members acquire a financial incentive to quit the union because they can still enjoy its benefits without paying member dues or non-member “fair-share” or “agency” fees.

But Mark Janus maintained that the payments he was compelled to pay AFSCME violated his First Amendment rights because the public-employee wages and benefits AFSCME sought to influence were matters of government policy.

"Today the Supreme Court recognized that no one should be forced to give up that right just to be allowed to work in government," said Jacob Huebert, Janus's attorney from the Liberty Justice Center, in a statement after the decision. "The Court recognized that unions have the right to organize and to advocate for the policies they believe in — but they don’t have a special right to force people to pay for their lobbying."

The Janus decision is a blow to Democrats as the 2018 election cycle gets underway. A 2014 report by the Congressional Research Service found that private-sector union membership in right-to-work states was one-third that in states that weren't right-to-work. Were Janus to have a comparable effect on public employee union membership, it eventually could reduce political spending by the big four public-employee unions — AFSCME, SEIU, the American Federation of Teachers, and the National Education Association — from the $166 million they gave federal candidates in the 2016 cycle to something closer to $55 million.

The case could have an even longer term political impact than Tuesday's decision in Trump v. Hawaii that upheld the White House's travel ban, according to legal experts.

"Bad policies like the travel ban can be fixed through the political process," wrote Dan Epps, an associate law professor at Washington University in St. Louis, on Twitter. "Janus and its ilk are designed to make left victories in the political process harder to achieve."

The facts of the case strongly resembled those in Friedrichs v. California Teachers Association, on which the high court deadlocked in 2016, following the death of Justice Antonin Scalia. The addition of Justice Neil Gorsuch gave plaintiffs the fifth vote they needed to outlaw non-member union fees.

As was true with Friedrichs, Janus was bankrolled largely by the conservative Lynde and Harry Bradley Foundation through donations to the National Right to Work Foundation and other legal nonprofits. Donors Trust and Donors Capital — two funds with links to the Koch brothers — also helped fund the legal fight.

Josh Gerstein contributed to this story.

