High court has chance to correct itself on union fees

Overturning mistaken decisions is an occasional duty of the Supreme Court, whose noblest achievement was the protracted, piecemeal repudiation, with Brown v. Board of Education (1954) and subsequent decisions, of its 1896 ruling that segregated “separate but equal” public facilities were constitutional. This Monday, the court will hear oral arguments that probably will presage another overdue correction.

The issue is: Are Mark Janus’ First Amendment rights of freedom of speech and association (which entails the freedom not to associate) violated when government requires him, an employee, to pay “fair share” or “agency” fees to a private entity, a labor union, to which government has given exclusive power to represent him, although he chooses not to be a member? Janus argues that an exclusive representative “is indistinguishable from a government-appointed lobbyist.” The fees are usually significantly more than half of — sometimes up to 100 percent of — union dues.

In its 1977 Abood decision, the court upheld such exactions. But the ruling contained the seeds of its coming — by this June — reversal, because it acknowledged this: “There can be no quarrel with the truism that, because public employee unions attempt to influence governmental policymaking, their activities ... may be properly termed political.” So Abood made compulsory political contributions constitutional.

For 41 years, the court has advanced the slow-motion undoing of Abood with decisions subjecting various instances of compelled speech to strict scrutiny. For example, in 1983 it held that “speech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values.’” In 2014, the court said it is a “bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

Abood ignored the inherently political nature of bargaining by government employees’ unions. In America’s 27 right-towork states, employees cannot be forced to join a union as a condition of employment. In the other 23, including Janus’ Illinois, workers must join a union or pay fees. The supposed constitutionality of this compelled speech rests on the fiction that these fees pay only the costs of collective bargaining, from which the fee payers benefit.

In private-sector collective bargaining, management and labor negotiate about how to distribute companies’ profits. No comparably adversarial process exists in the public sector. Government, which acquires its “profits” (revenues) from a third party — taxpayers — “negotiates” with unions that have an interest in government doing what it wants to do anyway: expand. Because government is both employer and policymaker, collective bargaining by the union is inherently political advocacy and indistinguishable from lobbying. Hence in 2012 the court acknowledged that compulsory fees are “compelled speech and association.” President Franklin Roosevelt was right: “The process of collective bargaining, as usually understood, cannot be transplanted into the public service.”

Disclosure: This columnist’s wife is an adviser to Illinois Gov. Bruce Rauner, who filed the lawsuit that became Janus v. AFSCME.