February 18, 2021
By Jacob Huebert
In Janus v. AFSCME, the Supreme Court declared that the First Amendment forbids governments from requiring their employees to pay union fees. As a result, some five million government employees across 22 states who previously were forced to give part of every paycheck to a union became free to choose which organizations they will and won’t support with their money.
But Janus only ended those forced fees. It didn’t stop public sector unions from “representing” workers who aren’t union members and don’t want a union to speak for them.
But now Ohio public school teacher Jade Thompson is asking the Court to take that next step and strike down state laws that authorize government bodies to recognize a union as employees’ “exclusive representative.” Thompson argues that appointing a union to speak on her behalf—even though she disagrees with many positions the union takes and would prefer to speak for herself—violates her First Amendment right to freedom of association.
Thompson has a reason to be optimistic about her case. In Janus, the Court suggested it might be open to her argument when it described unions’ power of exclusive representation as “a significant impingement upon associational freedoms that would not be tolerated in other contexts.”
The Goldwater Institute has filed an amicus brief asking the Court to hear Thompson’s case. We argue that exclusive representation laws not only violate employees’ First Amendment rights but also create superpowered “factions” that undermine our republican system of government.
The Founders used the term “factions” to refer to groups that would use the government to serve their own interests rather than the public interest. The Founders expected that, in a large and diverse republic such as ours, the many factions competing with each other in a system governed by checks and balances would prevent each other from obtaining too much power.
Today, public sector unions are a prominent example of a faction: They seek to use the government to enrich themselves and (at least some of) their members at others’ expense. But they aren’t constrained by our system of government as a typical faction is, for several reasons.
For one, unlike other groups, public sector unions can force the government to the bargaining table and compel officials to negotiate with them—typically behind closed doors, with no outsiders or dissenting employees there to present competing views.
And if unions don’t get what they want in bargaining, they can hold the public hostage by striking. That’s why even the union-friendly President Franklin Roosevelt believed unions didn’t belong in government. “The desire of Government employees for fair and adequate pay, reasonable hours of work, [and] safe and suitable working conditions” was legitimate, he wrote in a famous letter, but differences between public sector and private sector employment imposed a “distinct and insurmountable limitation” to the use of collective bargaining in government.
“Militant tactics,” Roosevelt wrote, “have no place in the functions of any Government employees” because government employees are supposed to “serve the whole people” rather that employees’ own private interests. For a labor organization of government employees to take action against a government employer would be “unthinkable and intolerable,” according to Roosevelt, because it would “look toward the paralysis of Government by those who have sworn to support it.” Today, of course, public sector employees can and do strike, often causing great disruption to people who count on public services. Sometimes these strikes are authorized by law, and sometimes government employees strike even where it’s against the law, as teachers unions have recently done or threatened to do in places where strikes are illegal or the legal conditions for a strike haven’t been met, including Arizona, Chicago, Virginia, and Idaho.
But typically, unions don’t have to strike to get their way. Through heavy political activity, they help choose the officials they negotiate with—effectively putting themselves on both sides of the bargaining table. And not only can union-backed officials give in to unions’ demands for more government spending; they also can authorize unionization of additional government employees, thereby delivering more union members and even more money to fuel unions’ political agenda. In this way, unions become political perpetual-motion machines, funded by taxpayer money to demand even more taxpayer money for the union and its members.
Because of their unique privileges, public sector unions in many places haven’t been reined in by the majority or counteracted by other factions competing for power. That’s one reason why salaries and pension benefits demanded by unions now overwhelm the budgets of states like Illinois.
That’s by design. Evading our system’s natural constraints on factions—that is, obtaining more taxpayer money for government unions and employees than they could obtain through the democratic process alone—is the avowed purpose of public sector collective bargaining.
Eliminating public sector unions’ power of exclusive representation would reduce government unions to the kinds of factions the Founders anticipated in designing the Constitution—still dangerous, but limited by the political process. The Supreme Court should therefore hear Jade Thompson’s case, both to protect her First Amendment rights and to ensure that the problem of faction will be duly curbed as the Founders intended.
Jacob Huebert is a Senior Attorney at the Goldwater Institute.
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