Today, the Competitive Enterprise Institute (CEI) submitted a brief in Janus v AFSCME, Council 31, a case before the United States Supreme Court. The question at hand is whether the First Amendment allows the government to force public employees to financially assist a union they do not support. The plaintiff in the case is asking the Supreme Court to overrule Abood v. Detroit Board of Education (1977), which permits unions to collect compulsory dues, or in some cases, agency fees.
CEI’s brief dispels the myth that forced union dues are only spent on union representational activity. Despite past U.S. Supreme Court decisions that have placed restrictions on how labor unions may use forced dues, “public-sector unions have demonstrated unbridled creativity in channeling the fees paid by non-members to fund a range of ideological activities as wide as any political party’s.”
In Abood, the plaintiffs argued that a “substantial part” of the forced union dues paid to the labor unions go toward supporting activity that was “political, professional, scientific, and religious in nature of which Plaintiffs do not approve, and in which they will have no voice.”
And the plaintiffs in Abood were, unfortunately, correct.
CEI’s brief puts forth a laundry list of political activity conducted by public-sector unions that was funded by forced union dues. The labor union is the case, an AFSCME affiliate, used non-member agency payments for advocacy on issues like:
- Right-to-work statutes
- The minimum wage
- Gun control
- D.C. state-hood
- “AFSCME FOR HILLARY”
- Instructed members on political organizing and voter registration
AFSCME is not alone among public-sector unions in inappropriately spending agency fees on ideological or political activity. The American Federation of Teachers (AFT) also treats its convention expense as entirely chargeable to non-members. At AFT’s most recent convention, the union adopted resolutions endorsing an amendment to overturn Citizens United v. FEC, opposing the Trans-Pacific Partnership trade agreement, and supporting public funding of Planned Parenthood.
The Abood decision incorrectly assumed that non-member First Amendment rights could be protected by “drawing lines between collective-bargaining activities, for which contributions may be compelled, and ideological activities unrelated to collective bargaining, for which such compulsion is prohibited.”
This is wrong on two fronts. First, public-sector unions are inherently political; it is impossible to draw a distinction between their political and collective bargaining activities. As Samuel Alito wrote in an opinion on forced union dues:
Abood failed to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends. In the private sector, the line is easier to see. Collective bargaining concerns the union’s dealings with the employer; political advocacy and lobbying are directed at the government. But in the public sector, both collective bargaining and political advocacy and lobbying are directed at the government.
Second, in decades since Abood, as CEI’s brief shows, unions have been relatively unfettered in diverting forced union dues to ideological or political activity.
It is an injustice for non-members to be compelled to finance a union to advocate positions on political issues like gun control, abortion, and religious liberty. As CEI’s brief concludes:
Yet that is what Abood anomalously sanctions: compelled support of a labor union even by non-members who believe its principles, policy positions, and endorsements are abhorrent and immoral. That the First Amendment cannot bear.
Read the full brief here.