The Supreme Court will hear arguments Monday in a case that could shrink government unions and their campaign war chests by as much as two thirds, with potentially devastating consequences for the Democratic Party in a competitive election cycle.
The case, Janus v. AFSCME, challenges the money that public unions representing teachers, firefighters, nurses and other government employees collect from non-members to cover their share of collective bargaining costs. Democratic candidates and causes rely on these unions for more than $100 million in contributions every election cycle, and for armies of workers dispatched to staff phone banks and canvass neighborhoods across the country.
Plaintiff Mark Janus, an Illinois state worker who declined to join the American Federation of State, County and Municipal Employees, argues in his lawsuit that the payments he’s compelled to pay the union violate his First Amendment rights.
The facts of the case are near-identical to those in Friedrichs v. California Teachers Association, on which the high court deadlocked in 2016, following the death of Justice Antonin Scalia. The addition of Justice Neil Gorsuch is widely expected to give plaintiffs the fifth vote they need to outlaw the non-member fees.
That would be a serious blow to Democrats in the midterm election campaign. Government unions account for about 6 percent of the money spent on Democratic candidates in federal elections — and that doesn’t include significant in-kind contributions like phone banks and canvassing.
Unions “provide enormous resources to candidates who support workers, which tend to mostly be Democrats,” said Steve Rosenthal, a former political director of the AFL-CIO and Democratic Party strategist. The case, he said, is aimed largely at “limiting Democrats’ ability to win.”
AFSCME and its affiliates spent about $26 million on the 2016 election cycle, according to federal election records compiled by the Center for Responsive Politics, virtually all of it to elect Democrats.
Add in spending that cycle by the other three biggest public-sector unions — the National Education Association, the American Federation of Teachers, and the Service Employees International Union — and the total rises to about $166 million, most of it spent to elect Democrats.
Teachers unions “are some of the largest players in politics,” said Lara Brown, director of the Graduate School of Political Management at the George Washington University and a former Education Department official during the Clinton administration. “There’s no doubt that this decision could weaken the power of the teachers union.”
Open Secrets, a project of the nonprofit Center for Responsive Politics, ranks the American Federation of Teachers and the National Education Association — the nation’s largest teachers unions — as the 9th and 11th most generous givers to Democrats out of more than 18,000 super PACs during the 2016 election cycle. Together, they also deployed more than 160,000 volunteers to knock on doors and make phone calls. Both unions backed Hillary Clinton for president.
The teachers unions also teamed up with other labor organizations in 2016 to form a new super PAC called the For Our Future PAC, which gave millions of dollars to Clinton and other congressional Democrats.
Deprive these four biggest public unions of non-member fees and the $166 million they spent on federal candidates in 2016 would drop closer to $55 million, assuming that membership in government unions followed the same pattern described in a 2014 report by the Congressional Research Service. That study found that membership in private-sector unions in “right-to-work” states that bar private-sector unions from collecting non-member fees was about one-third the membership in other states. (The calculation is inexact because SEIU’s private-sector members won’t be affected by Janus, somewhat mitigating its effect.)
The financial blow dealt by a Janus victory would far exceed the loss of nonmember fees, thanks to what economists call a “free rider” problem. Unions are compelled by law to represent all workers within a collective-bargaining unit — not just dues-paying union members. If workers are permitted to quit the union and still benefit from collective bargaining agreements without paying non-member fees, union non-membership will become much more attractive.
“If free riding cannot be prohibited,” argued a Jan. 18 amicus brief filed by 36 economists, including three Nobel laureates, “it is contagious.”
This logic isn’t lost on the conservative groups funding Janus.
As was true with Friedrichs, Janus is in large part bankrolled by the conservative Lynde and Harry Bradley Foundation, which in 2016 (the most recent year for which data are available) donated $100,000 to The National Right to Work Foundation and $150,000 to the Illinois Policy Institute. Both groups are representing Janus through their legal arms. Donors Trust and Donors Capital —two funds with links to the Koch brothers — gave $84,000 to the National Right to Work Foundation and $76,500 to the Illinois Policy Institute in 2015, the last year for which data are available.
“If you look at the briefs they filed, it’s from the same old crony cabal, the same right-wing think tanks,” AFSCME President Lee Saunders told reporters in Washington.
The National Right to Work Legal Defense Foundation refused to comment on the source of its funding.
Mark Janus’ supporters say he can’t be a free rider if the benefit he gets — a collective bargaining contract — isn’t something he wants.
“If you look at union activities in almost any other instance, you realize that they zealously guard the power to force workers under their so-called representation —even workers that don’t want that representation,” said Patrick Semmens, a spokesperson for the National Right to Work Legal Defense Foundation.
But it isn’t clear that even Janus really believes this. “I’m not anti-union,” he said at a Washington breakfast Friday morning. “I think unions have a place. Collective bargaining is beneficial to people and workers.” Asked to reconcile that statement with his opposition to non-member fees, he replied, “The problem that I have is that I don’t have the choice.”
Janus also seemed to suggest at the breakfast that he thought his AFSCME non-member fees were used to support the candidacy of Hillary Clinton. In fact, public employee unions are barred by law from using non-member fees to support political candidates, and Janus’ lawyers don’t contend the law was violated in his case. Rather, they argue that any spending by public-employee unions is intrinsically political because their activities affect government spending.
Ryan Yohn, a 39-year-old middle school American history teacher in Orange County, California, brought a similar lawsuit against the California Teachers Association last year. Backers of Yohn’s case expect to use it as a way to resolve any issues left unaddressed by the high court in Janus’ case.
“I’m more conservative politically,” Yohn told POLITICO. “I found that the union’s policies in the classroom and outside of the classroom didn’t go by the principles that I live my life by, and the money was going toward politics that I don’t agree with.”
Yohn is not alone. While teachers unions typically donate only a small sliver of money and organizing efforts to Republicans, 32 percent of unionized government employees identify as Republicans or Republican-leaning independents, according to the General Social Survey, a nationwide poll funded by the National Science Foundation.
“Teachers unions, to something of their detriment, have really only engaged on the Democratic side of the aisle,” said Brown of George Washington University. “I do think a lot of these groups would do better if they worked harder to recruit some Republicans.”
And it’s not just Republican union members who’ve felt alienated — both the National Education Association and the American Federation of Teachers also saw some rank-and-file members support Bernie Sanders for president. They’re now working to heal the fractures, with national and local union leaders reaching out to members and rallying them around worker’s rights and policies they say support public schools.
And they’re telling members that the Bradley Foundation and other conservative groups participating in the case are looking to cripple union power.
“Their goal is to defund unions and to destabilize them,” said Randi Weingarten, President of the American Federation of Teachers.
In targeting public-sector unions, Janus is aiming at the only part of the labor movement that’s thrived in recent decades. Public sector union membership is five times greater than private sector union membership, according to Bureau of Labor Statistics numbers. A union worker today is more likely to be a teacher or a child support specialist than a miner or a longshoreman.
Union leaders say they anticipate a post-decision campaign from anti-union groups to persuade workers to drop memberships. Survey data shows that some 24 percent of unionized government employees don’t believe workers need strong unions. The unions are also making plans for the day after the Janus ruling, dedicating more resources to listening to members’ concerns and extolling the benefits of membership.
“At one time … we spoke to all of our members as if they were activists,” Saunders said. “…we treated everyone as if they were really engaged with the union activities. Not all of our members are, and you can’t expect them to be.”
SEIU President Mary Kay Henry says such efforts are already producing results. “The threat … has awakened our member to thinking, ‘OK, wait a minute. I want to protect my retirement. I want to protect my health care.
But a study by Boston University’s James Feigenbaum, Columbia University’s Alexander Hertel-Fernandez, and Brookings’ Vanessa Williamson finds that private-sector unions in right-to-work states tend to become less influential in national politics precisely because they must allocate scarce resources to internal organizing.
The political consequences of this shift can be dramatic. The authors estimated that right-to-work laws resulted in a 3.5 percent reduction in Democratic presidential vote totals per county.
Four key midwestern and midwestern-adjacent states went right-to-work during the five years before the 2016 election, and all four — Indiana, Michigan, Wisconsin, and West Virginia— went for Donald Trump. The president may therefore owe his victory to the same right-to-work movement that eagerly anticipates its likely victory in Janus.
“I view the Janus suit… if not the culmination, as part of the peaking of this right-wing effort that’s been going on for decades,” Rosenthal said.