The Supreme Court’s coming decision could put unions past the point of no return

Organized labor faces a transformation this year. In February, the Supreme Court will hear arguments in Janus v. AFSCME to decide whether government employees can be fired for refusing to pay union dues. A decision for petitioner Mark Janus could extend right-to-work protections to millions of public employees, and the implications for public policy and national politics are profound.

The case is an inflection point for organized labor, coming after decades of grim news. Union membership as a percentage of U.S. employment has been shrinking for 60 years; only 10.4 percent of workers are members of a union, down from a peak of 35 percent in the 1950s.

Several trends have caused difficulties for labor unions, including automation, globalization and the expansion of right-to-work states, to say nothing of exorbitant union contracts. As a result, unions represent only 6.4 percent of all private sector workers.

{mosads}In the 1960s, labor leaders sought to retrofit collective bargaining to a sector where competitive market forces are less threatening — the government. Though Franklin D. Roosevelt warned against collective bargaining in the public sector, union’s success in organizing government workers helped slow their decline. Government has been a strong growth sector for unions and today 49 percent of all union members are employed by the government.

Government unions won a major assist from the Supreme Court in the landmark case Abood v. Detroit Board of Education (1977). The court ruled that a public employee could be forced to pay for union representation, even if the money supported causes the employee opposed.

Yet even this model of forced unionism shows strain, brought on by union overreach.

Over time, organized labor has shifted its core function away from serving its members and to consolidating its political power, acting as a financial pipeline for a single political party. As AFSCME 36 of Los Angeles says: “Politics is the union’s business.” Or the Michigan Education Association: “Every education decision is a political decision.” 

Political intersectionality led unions, particularly the National Education Association, to embrace causes that have little to do with the workplace.

Labor’s shift to politics is the logical result of relying on government employees to sustain membership rolls. Unions are self-motivated to grow government: More government programs lead to more employees who pay more in union dues. But fiscal pressures in states and municipalities have been mounting, particularly related to retiree benefits, and the Great Recession forced many states to make tough choices.

In 2011, Wisconsin Gov. Scott Walker famously championed collective bargaining reform. A wave of states enacted right-to-work laws, foretelling the collapse of Hillary Clinton’s Blue Wall. (Clinton’s data analysts could have observed that in every Midwest and Rust Belt state that enacted labor reform, Republicans retained control of the state legislature and every Republican governor won re-election.)

Hoping to grow the pool of public employees, unions stretched Abood beyond recognition by unionizing in-home caregivers who are hired by Medicaid recipients. The effort started on the West Coast in the late-1990s and early 2000s by redefining public employment. “Caregivers are paid through a government program,” went the union logic, “let’s organize them as public employees.”

Unions siphoned off hundreds of millions of dollars intended for disabled adults before the Supreme Court held that states cannot force caregivers to pay dues.

The case, Harris v. Quinn (2014), warned of things to come. The court resolved the case on technical grounds without addressing the forced dues question, but an illuminating conversation took place. Both Justice Samuel Alito, writing the majority opinion, and Justice Elena Kagan, writing the dissent, devoted pages of their opinions to Abood. Alito called Abood “questionable” and “troubling,” while Kagan criticized Alito’s critique as “off-base.” 

With Janus, the Supreme Court will address Abood directly.

A ruling for Janus will trigger an exodus of union members who held their nose over union politics. We saw this in Michigan; after the state enacted a right-to-work law in 2012, the Michigan Education Association lost 25 percent of its membership.

AFSCME, the union currently collecting dues from Janus, is preparing for the worst. The union told Bloomberg it had conducted 600,000 one-on-one interviews with members. If Janus wins, the union believes 35 percent will stay in “no matter what,” 15 percent will stop paying dues, with the remaining 50 percent “on the fence.” 

Nearly five million workers will be affected by the Janus ruling, a fact not lost on the Democratic Party, heavily dependent as it is on union cash and activists. Legislatures in blue states can be expected to test the limits of Janus; some will try to directly subsidize unions with taxpayer funds.

So how will unions respond to the Janus ruling?

Faced with a loss of revenue, unions may chose to focus on the needs and interests of members, eschewing partisan politics and far-left causes.

Alternatively, as their conservative-leaning members leave, unions may seek more radical aims, pushing for strikes and work stoppages. Such moves could backfire with lawmakers and the taxpayers, leading to changes in labor law.

A reimagining of the labor movement is called for. The leaders of tomorrow’s labor movement would do well to discard a collectivist, coercive model and instead promote services potential members want while honoring the rights of individuals to make their own choices.

Only a few labor leaders see the future with clarity. Speaking at an Aspen Institute event in 2015, SEIU 775 President David Rolf said, “The legacy model of the American labor movement has now passed its own strategic inflection point where rescue is no longer an option, and we have to begin to plan for what is next.”

Michael Reitz is the executive vice president of the Mackinac Center for Public Policy in Midland, Michigan, a nonprofit group that advocates for limited government.