Imag­ine you are a state leg­is­la­tor in a pro­gres­sive state in the 1950s, before pub­lic sec­tor unions are even rec­og­nized. You believe that pub­lic work­ers will be more sat­is­fied and pro­duc­tive, and that the qual­i­ty of pub­lic ser­vices will improve, if work­ers have a mean­ing­ful voice in their wages and terms and con­di­tions of employ­ment. You believe that the best way to empow­er this voice is to require pub­lic employ­ers to bar­gain on a range of issues with unions that are account­able to their mem­bers and that fair­ly rep­re­sent all work­ers. And you rec­og­nize that unions must have ade­quate finan­cial resources in order to advo­cate effectively.

What’s next? It is time for law­mak­ers in pro­gres­sive, pro-labor states to get to work. (Note that these are essen­tial­ly the only states affect­ed by Janus, since red states have already over­whelm­ing­ly for­bid­den fair share fees as a mat­ter of leg­isla­tive pol­i­cy.) As I explain in ​” How To Undo Janus: A User-Friend­ly Guide ”, law­mak­ers have the pow­er to reduce Janus to a mere foot­note in the long arc of his­to­ry for orga­nized labor. To see how, con­sid­er the fol­low­ing thought exercise.

The guil­lo­tine has final­ly fall­en. After years of uncer­tain­ty, the Supreme Court has inval­i­dat­ed fair share fee arrange­ments in thou­sands of pub­lic sec­tor col­lec­tive bar­gain­ing agree­ments across the coun­try through its 5 – 4 deci­sion in Janus v. AFSCME, Coun­cil 31. The result is clear: pub­lic-sec­tor work­ers can choose not to share in the costs of their unions’ col­lec­tive bar­gain­ing. Janus thus jeop­ar­dizes the finan­cial vital­i­ty of pub­lic sec­tor unions. And it does so just as a wave of teacher walk­outs in right-to-work states reveals the polit­i­cal risks of poli­cies that give pub­lic sec­tor work­ers lit­tle voice in their wages and con­di­tions of employment.

One option would be for pub­lic employ­ers to pay an extra sum of mon­ey to their work­ers and then to force all work­ers to send that mon­ey on to the union. Any work­er who refus­es would be fired. The ratio­nale is that because the union will be legal­ly oblig­at­ed to rep­re­sent all work­ers fair­ly, all work­ers must pay their ​“fair share” of the union’s bar­gain­ing costs. This approach would achieve the basic goal of union finan­cial secu­ri­ty, since most work­ers will nat­u­ral­ly pre­fer to keep their job than lose it over a mod­est com­pul­so­ry union payment.

Yet the fair share approach has a hid­den down­side. By chan­nel­ing the unions’ mon­ey through work­er pay­checks, the pub­lic employ­er impos­es an extra tax on work­ers. Work­ers are taxed, after all, on their income. But the por­tion of work­er pay­checks that must be turned over to the union would be more imag­i­nary income than real. Work­ers would pay tax­es on that income with­out ever see­ing it in their bank accounts. Depend­ing on the worker’s salary and cir­cum­stances, the net loss from this arrange­ment would be upwards of $200 to $300 each year.

You quick­ly come up with a sec­ond option. Rather than pay­ing work­ers an extra sum of mon­ey and forc­ing them to turn it over to the union, pub­lic employ­ers can just send the same sum straight to the union, reim­burs­ing unions for their bar­gain­ing costs direct­ly. Remov­ing the work­ers from the equa­tion would elim­i­nate the extra tax bur­den cre­at­ed by the fair share approach. Under direct reim­burse­ment, work­ers would have more mon­ey at the end of the day, the union would enjoy the same finan­cial resources, and state and local bud­gets would be unaf­fect­ed. What‘s more, direct reim­burse­ment would be more respect­ful of the objec­tions of a work­er like Mark Janus who does not want to pay fair share fees: With the reim­burse­ment approach, no work­er must send mon­ey from their pay­check to an orga­ni­za­tion to which they are opposed.

Which option would you choose as a 1950s law­mak­er: the fair share approach or the direct reim­burse­ment approach?

In real life, of course, pro-labor states chose the fair share approach when draft­ing their pub­lic sec­tor labor laws in the 1960s and ​‘70s. Much of the expla­na­tion is his­tor­i­cal. Pub­lic sec­tor labor law was mod­eled on the 1935 Nation­al Labor Rela­tions Act’s approach to fund­ing pri­vate sec­tor unions: fair share fees.

To the extent there is a prin­ci­pled expla­na­tion, it is an argu­ment based on union inde­pen­dence. The direct reim­burse­ment approach, the argu­ment goes, would make unions depen­dent upon pub­lic employ­ers — the very enti­ty against whom they are sup­posed to bar­gain — for their finances. As a result, unions might feel pres­sured to sub­vert work­er inter­ests in order to max­i­mize their own finan­cial wellbeing.

This is an impor­tant con­cern. Yet it is one impli­cat­ed by fair share fees, too. In the immor­tal words of Jack Larkin, a union rep­re­sen­ta­tive who tes­ti­fied dur­ing the 1935 debates over the NLRA, any argu­ment that fair share fees are more con­ducive to union inde­pen­dence than direct reim­burse­ment is ​“absurd” because “[t]he ulti­mate source of the mon­ey paid in by the mem­bers of a labor orga­ni­za­tion is from the employ­er and I can­not see what dif­fer­ence it makes whether the [employ­er] turns over a lump sum each year, accord­ing to a fixed arrange­ment, or whether the men pay a check-off.”

In any case, union inde­pen­dence can eas­i­ly be pre­served under a reim­burse­ment sys­tem through wise leg­isla­tive draft­ing. The key is that pub­lic employ­ers not be giv­en the uni­lat­er­al pow­er to reduce reim­burse­ment pay­ments as a way of coerc­ing unions into agree­ing to wage or ben­e­fit cuts. Instead, pub­lic employ­ers should be required to reim­burse unions for all bar­gain­ing-relat­ed costs. Unions would then keep track of their expen­di­tures and sub­mit them for reim­burse­ment peri­od­i­cal­ly. If an employ­er believes that cer­tain expen­di­tures are not suf­fi­cient­ly relat­ed to bar­gain­ing to mer­it reim­burse­ment (for exam­ple, per­haps an expen­di­ture is for some polit­i­cal cam­paign con­tri­bu­tion), the employ­er could chal­lenge those expens­es before an inde­pen­dent body of labor law experts. All oth­er expens­es would need to be paid promptly.

If this kind of a sys­tem seems com­pli­cat­ed, it shouldn’t. It is essen­tial­ly the same process that unions fol­lowed before Janus. Under the fair share mod­el, unions cal­cu­lat­ed their bar­gain­ing-relat­ed bud­gets and sub­mit­ted them for pay­ment, with chal­lenges to indi­vid­ual union expens­es often adju­di­cat­ed by inde­pen­dent bod­ies known as state Pub­lic Employ­ment Rela­tions Boards (PERBs). To be sure, pub­lic employ­ers would pay the union direct­ly (rather than through manda­to­ry deduc­tions from work­er pay­checks) under the reim­burse­ment sys­tem, and employ­ers would have the right to chal­lenge whether cer­tain union expens­es are ger­mane to col­lec­tive bar­gain­ing (rather than object­ing workers).

But two impor­tant real­i­ties will lim­it pub­lic employ­ers’ abil­i­ty and incen­tive to use such chal­lenges as a threat to union bud­gets. First, there is already a sig­nif­i­cant body of judi­cial and admin­is­tra­tive law gov­ern­ing whether cer­tain kinds of union expen­di­tures are ger­mane to bar­gain­ing (and thus reim­bursable). So this long-set­tled prece­dent will pre­vent pub­lic employ­ers from chal­leng­ing the vast major­i­ty of rou­tine union expen­di­tures on day-to-day bar­gain­ing, con­tract admin­is­tra­tion and griev­ances. Sec­ond, lit­i­ga­tion is cost­ly. It is unlike­ly to be worth­while for pub­lic employ­ers to expend tens or even hun­dreds of thou­sands of dol­lars quib­bling with unions over the reim­bursabil­i­ty of union expens­es, the vast major­i­ty of which are unques­tion­ably per­mis­si­ble under decades-old precedent.

For those inter­est­ed in a deep­er dive into these and oth­er leg­isla­tive design and imple­men­ta­tion issues, I explore them at length in ​“Life After Janus”, which includes a mod­el direct reim­burse­ment bill for state law­mak­ers to consider.

Had they designed pub­lic sec­tor labor law from scratch, state law­mak­ers might have been wis­er to choose a direct reim­burse­ment sys­tem rather than a fair share sys­tem to pro­tect union finan­cial secu­ri­ty. But even if you think it’s a close call, that is exact­ly the point: Reim­burse­ment serves essen­tial­ly every goal that fair share fees serve, with the added bonus of increas­ing wages for a sig­nif­i­cant por­tion of the mid­dle class. So now that Janus has tak­en the fair share option off the table, the cor­rect answer for pro­gres­sive law­mak­ers is obvi­ous. Here’s hop­ing they get it right.