Collective bargaining fee

Also called a “fair use” fee, the collective bargaining fee is required to be paid by all employees because, whether they like it or not, there is a labor union that negotiates on their behalf. The American Federation of State, County and Municipal Employees negotiates employment benefits with the State of Illinois for Janus and his state employee colleagues. That includes, for example, wages, layoff policies, promotion policies and public benefits.

Disagreement about labor unions

The idea of a labor union is that it protects employees from abuse by their employers. Employees in mass = greater bargaining power = greater employee benefits. Critics argue that labor unions have too much power – so much that they function to the detriment of the greater good by raising employers’ costs.

The First Amendment

Janus argues the collective bargaining fee infringes on his First Amendment rights. The payment requires him to express belief in the union or in union policies when he does not.

But, the Supreme Court has addressed this exact question and ruled against Janus’ argument. In 1977, the Court admitted, there are are many ways a person’s beliefs may conflict with union activities:

• “[Someone’s] moral or religious views about the desirability of abortion may not square with the union’s policy in negotiating a medical benefits plan.
• “[Someone] might disagree with a union policy of negotiating limits on the right to strike, believing that to be the road to serfdom for the working class.
• “[Someone] might have economic or political objections to unionism itself.
• “An employee might object to the union’s wage policy because it violates guidelines designed to limit inflation, or
• “[An employee] might object to the union’s seeking a clause in the collective bargaining agreement proscribing racial discrimination.

Abood v. Detroit Board of Education (Supreme Court, 1977).

But the Court ultimately said the interference is constitutionally justified because Congress has the right to declare such a fee essential to the well-functioning of the labor market. Allowing individuals to opt out would dilute the effect of the policy and the government’s important interest providing for employees to be represented equally before their employers.

Overturning Abood for public sector employees

The Abood ruling contains one aspect that Janus is asking the Court to reconsider this term. Is the collective bargaining fee required even if the employer is the government?

The argument is that negotiating with the government is inherently political. And political speech has always enjoyed the strongest First Amendment protection (“strict scrutiny”).

In the arguments, Janus wants to make employment negotiations look like political negotiations. On the opposing side, the union and Illinois argue there’s nothing especially political going on here: it’s merely employment negotiations, where the government is wearing its employer hat, not its governing hat.

Recent deadlock on the issue

The Supreme Court deadlocked on this public sector question just after Justice Scalia’s death. Commentators note that Gorsuch’s vote could tip the scales.

More information

• Amy Howe’s Plain English discussion, on SCOTUSblog.
• Another First Amendment case of this term: Masterpiece Cakeshop v. Colorado. This infographic outlines First Amendment precedent on government compelled speech.