Last week, the United States Supreme Court decided the case of Janus v. AFSCME. In the majority decision, penned by Justice Samuel Alito, the court ruled that an Illinois state law requiring state employees to pay an “agency fee,” a payment to a union to cover the costs of collective bargaining, even when the worker does not belong to the union, is a violation of workers’ First Amendment rights. The court decision is a significant blow to public sector unions, who must, by law, continue to represent both union members and non-members alike in collective bargaining, but who lose a significant source of funding as a result of the ruling.
The United States Conference of Catholic Bishops (USCCB) had issued an amicus brief on the side of the union, arguing that an adverse decision would threaten the right of public sector workers to collectively bargain. The amicus brief compares Janus’s argument to the right-to-work laws found in a number of states, which likewise limits private sector unions’ ability to collect fees from non-member workers they represent in collective bargaining. The USCCB points out that the Catholic bishops have consistently opposed such laws, and adds that a decision like that the court eventually made unnecessarily inserts the court into a policy debate about the value of unions best left to democratic processes.
Bishop Thomas Paprocki of Springfield, Illinois (notably, where the conflict in the case took place), however, praised the court’s Janus decision in a tweet issued on June 28: “It is encouraging that the U.S. Supreme Court ruling in Janus v. AFCSME upholds the right to be free from coercion in speech. No longer will public sector employees be required pay dues to support unions that promote abortion and other political issues with which they disagree.” Paprocki here appeals to the traditional Catholic notion of material cooperation, arguing that workers should not be forced to materially cooperate in support for moral evils such as abortion. Paprocki’s tweet followed a statement by the bishop in February disputing the USCCB amicus brief’s claim that the Catholic bishops are opposed to right-to-work laws, instead arguing that it is “a matter of prudential judgment on which reasonable people can disagree as to whether the rights of association and free speech are helped or hindered by mandatory union dues.”
Both the USCCB amicus brief and Paprocki’s brief tweet raise important moral considerations. But which argument is ultimately more consistent with Catholic ethics? Before answering that question, it is important to examine how the concerns raised by both the USCCB and Paprocki are echoed in the majority and dissenting opinions in the case, but also how the opinions raise issues not considered by either the USCCB or Paprocki.
The Argument of Janus
The Wagner Act of 1935, which established the framework for collective bargaining in the private sector, mandated that there can only be one representative (normally a union) representing the workers in a particular workplace. State laws permitting the establishment of public sector unions make similar provisions for government workers. Because unions are required to represent all workers in a workplace, however, it makes sense that workers have some obligation to the union, either through membership or some form of financial compensation. The Taft-Hartley Act of 1947, however, prohibited what are called “closed shops,” in which workers are required to be members of the representative union as a condition of employment. This exclusion left two principal options.
The first is what is called an “open shop,” in which the union is required to represent the entire unit of workers, but individual workers are completely free to join the union or not. Open shops, however, create what is called the “free rider” problem: individual workers benefit from the collective bargaining of the union while incurring none of the costs, therefore undermining the financial support for the union and ultimately imperiling its existence. The second option is what is called an “agency shop.” This arrangement requires non-union workers to pay an “agency fee,” a certain percentage of union dues that go toward the costs of collective bargaining, while not requiring them to pay the remainder of union dues which go toward benefits unrelated to collective bargaining, political lobbying, etc. Illinois state law mandated such agency fees for state employees, which at the time of the Janus case totaled 78.06 percent of total union dues.
The central argument of the majority decision in Janus is that requiring such agency fees for government employees is a violation of their First Amendment right to free speech. The First Amendment prohibits state governments from compelling political speech, and, the court claims, such fees represent a form of such compulsion. There are two parts to the court’s argument. The first is that the distinction between the costs of collective bargaining on the one hand, and the costs of lobbying and other forms of political speech on the other, on which “agency shop” arrangements depend, although ostensibly clear in principle, is unworkable in practice. Unions blur the lines between “chargeable” and “unchargeable” fees, and courts have issued wildly differing opinions on where the line should be drawn. Unions are intentionally vague about their expenses, leaving workers unsure how their agency fees are being used and facing expensive litigation to find out.
Here the majority most closely echoes Paprocki’s concerns. Workers should not be required by law to subsidize political speech with which they disagree. Although the law already prohibits workers’ fees from going toward the most blatant forms of political lobbying, the court argues that in practice, in many cases agency fees nevertheless go toward impermissible forms of political speech.
The court goes on to say, however, that even if one finds that argument unpersuasive, collective bargaining for public sector employees itself is inherently political, and therefore even those fees that go directly toward the costs of collective bargaining involve an unconstitutional compulsion of political speech. Drawing on earlier precedents, the court argues that although the state can regulate employees’ speech “on matters of private concern,” it cannot, except under very limited circumstances, restrict or compel speech “on matters of public concern.” Collective bargaining in the public sector is inherently of public concern, the court argues, because it involves questions of the state budget and issues of public policy, such as the number of students per school classroom. The court therefore carefully distinguishes collective bargaining in the public sector from that in private sector, forestalling the application of the Janus decision to the private sector, a concern raised by the USCCB in its amicus brief.
Assessing the Argument of Janus
The court majority acknowledges that even the political speech of government employees can be restricted if there is an overriding public interest. The court seems to admit that having workers represented by an exclusive collective bargaining agent is a valid interest of the state, but it denies that “the principle of exclusive representation in the public sector is dependent on a union or agency shop.” This was the argument of Abood v. Detroit Board of Education (1977), the precedent overruled by the Janus decision. Instead, the court dismisses this as an “unsupported empirical assumption” (citing the 2014 case of Harris v. Quinn).
The majority, however, presents tendentious evidence in support of this dismissal. For example, the court notes that public sector unions continue to operate in states that do not require agency fees as evidence that exclusive representation and agency fees are not “inextricably linked,” but fails to note, as the USCCB does in its amicus brief, that public sector employees are nearly three times more likely to be represented by a union in states with agency fees than in states without them (49.6 percent versus 17.4 percent, respectively). Public sector unions are clearly hindered by the inability to collect agency fees. Likewise, the court points to the fact that public sector union membership has surpassed membership in private sector unions as evidence of the health of the former, but fails to note that this fact is due in no small measure to the decline of private sector unions precisely as a result of the right-to-work laws that impose the same burdens on private sector unions that the court is now imposing on public sector unions! It is as if the court perversely interprets the bare fact that unions continue to organize as evidence that their rights need not be protected, and the court would only step in to protect those rights once the unions were destroyed.
The court also fails to understand, as Justice Elaine Kagan points out in her dissent, that the link between exclusive representation in the workplace and agency fees is not simply an empirical claim, but a moral one. The argument of Abood is not just that public sector unions will suffer in practical terms if they cannot collect agency fees, but that they must be allowed to do so as a matter of justice and fairness. It is for this reason that the state has a valid interest in regulating the speech of public employees. The USCCB makes a similar point in its amicus brief.
Assessing the Arguments of the Bishops
The USCCB, in my view rightly, emphasizes that the free rider problem posed by the open shop arrangements now mandated by the Janus decision is not simply a practical problem, but a moral one. Individual workers should not be able to participate in the benefits gained from collective bargaining without also taking on some of the responsibility for supporting the union that engages in the bargaining. Therefore neither states nor the federal government should require exclusive representation without some form of agency fees.
At the same time, the USCCB perhaps does not give adequate attention to the First Amendment issues raised in the majority’s opinion. As the majority points out, restrictions on individuals’ First Amendment rights must reach a very high bar, and in fact workers may disagree with the claim that they benefit from collective bargaining and therefore dispute the idea that they owe anything to the union (as was the case in Janus). This lack of attention on the part of the bishops is striking considering the USCCB’s interest in other matters involving the rights of free speech and free exercise of religion of employees or businesses, for example on the issues of same-sex marriage, contraception, and abortion.
Justice Kagan more adequately addresses these First Amendment concerns in her dissent. She points out that the court has permitted the state to regulate the speech of public employees, even speech on matters of public concern, if it serves a legitimate public interest. The majority fails to adequately distinguish these forms of speech on matters of public concern from that under consideration in Janus. In essence, she argues that these precedents show that the majority’s decision is not based on a principled distinction between speech on private and public matters, but rather a desire to limit one particular type of speech: collective bargaining by unions. Kagan’s argument therefore offers support to the USCCB’s contention that the Janus case attempts to settle a policy debate on the value of public sector unions under the false guise of a constitutional debate.
Likewise, although Bishop Paprocki is correct to insist on the freedom of conscience of individual workers, his argument neglects the justice and fairness issues raised by both the USCCB and Justice Kagan. As the USCCB points out, it is absurd to protect individual conscience rights by undermining the entire possibility of collective bargaining for government workers, especially when there are other means of protecting individual consciences. The USCCB amicus brief notes, for example, that Illinois state law allows individual workers who have moral objections to agency fees to instead donate the money to charity. As Elizabeth Bruenig explains in a commentary on the Janus case, an exclusive focus on individual freedom “exclude[s] the common good,” leaving individuals isolated and alienated, vulnerable to the depredations of the wealthy and powerful.
Although limited to the public sector, the Janus case creates a dangerous precedent of dissolving the possibilities for collective action in pursuit of justice in the name of individual freedom. If, as Justice Kagan suggests, the majority decision is based not on a principled balancing of First Amendment concerns with the public benefits of collective bargaining, but rather is a veiled attack on unions, then Bruenig is surely right that a similar attack on collective bargaining in the private sector is possible. Any collective bargaining contract protected by law, if looked at the right way, can be construed as a “public concern.” Therefore, it is incumbent on Catholics to articulate a moral vision that balances individual freedoms such as those protected in the First Amendment and the common good.
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