On February 26th, the Supreme Court will hear oral arguments in Janus v. AFSCME. The legal question in the case is whether, under the First Amendment, the government can compel public employees to pay union fees.
Many public employees disagree with their unions on political issues and want nothing to do with their advocacy. But unions contend that, without compelled fees, they would face a free-rider problem that would cripple their ability to organize.
The United States Conference of Catholic Bishops (USCCB) recently filed a brief at the Supreme Court in Janus. Concerned about the role of mediating institutions in civil society, the USCCB supported the unions. Unfortunately, the USCCB came to this conclusion based on a misunderstanding of the legal precedent at issue and the nature of modern public employee unions.
The Right At Stake
For Christians, work is a spiritual endeavor. It bestows dignity on the worker, allows for the care of family and future generations, and is good for the soul, even if it is often tiresome. It is one of the ways in which we can follow the example of Christ, who spent most of his years on earth as a workman. In the Christian view of things, work cannot be reduced to its materialistic elements of contract, wages, and production. There is always a greater end than the economic bottom line.
In Catholic social thought specifically, the dignity of work and workers is a special concern for the Church and the state. The Church promotes justice and the natural rights of all, but she often calls on the state to pay particular interest to those who are vulnerable. Rerum Novarum says “the poor and badly off have a claim to especial consideration,” and Pope John Paul II speaks of “specific rights of workers.”
One of those rights, long promoted by the Catholic Church, is the right of workers to form associations and unions to protect their interests. According to Rerum Novarum, unions and other workingmen’s associations help provide security, decrease class conflict, and bring solidarity to those who would otherwise find themselves standing alone. Like Burke’s “little platoons,” they are one of the many mediating institutions that protect the naked individual from the impersonal forces of the market and the state.
In this context, unions exist to serve not only the material but also the spiritual interests of the worker—to help establish the conditions necessary for human flourishing and to protect natural rights. Rerum Novarum acknowledges that there are principles above freedom of association and contract. An isolated worker may “freely” agree to work for an unjust wage. But the union, as a mediating institution, can help the individual secure a wage that is naturally just. If Janus v. AFSCME is, as many say, an attack on unions and their right to organize, then Christians would clearly have good reason to oppose the petitioner.
The actual arguments put forward are not so nefarious. Mark Janus is an employee in the Illinois Department of Healthcare and Family Services. Janus is not a member of a public employee union, but Illinois, along with twenty-one other states, compels all public employees to pay union fees to cover the cost of collective bargaining.
Legally speaking, there are some obvious First Amendment problems with compelling a private individual to fund a private political organization. Public sector unions, when they engage in collective bargaining, are lobbying the government on fundamental matters of education policy like merit pay, tenure, class sizes, and the length of school days and the school year. No other expressly political organization can rely on the state to coerce membership and financial support. (Workers are not compelled to join private sector unions, it’s worth noting, unless the union and employer come to an agreement. The state is therefore only enforcing a contract, instead of directly coercing a private party. Additionally, private unions are not lobbying the state when they bargain with employers. Thus, even if the state compels fees to private unions, these fees would not be political speech that implicate the First Amendment.)
The Supreme Court has long recognized that, under ordinary circumstances, it would be illegal for the state to coerce a private individual to fund a political organization he disagrees with. However, in the 1977 case of Abood v. Detroit Board of Education, the Supreme Court held that fees for public employee unions are different. The Court ruled that states can compel their employees to pay fees so that public sector unions can operate without free riders.
The argument that ending compelled fees will cripple public sector unions by creating free riders is a common one. Since Abood, it has become union orthodoxy. To question compelled fees is to attack the “right to organize.” But despite this argument’s prevalence, it has never been substantiated. The public employees of twenty-eight states and the federal government are not compelled to pay union fees, and the public sector unions in these states are able to represent their members without fear of insolvency.
Unions do point out that in right-to-work states they experience slightly lower levels of income and membership. But this does not prove that ending compelled fees is an attack on their right to organize. In fact, it only begs the question of what exactly “the right to organize” entails. Surely it would be odd to say, for instance, that Illinois is attacking the Catholic Church’s right to organize because the state does not compel people to attend mass.
The Janus case is not an attack on unionism, but it is an attack on the special—and constitutionally suspect—place that public unions occupy under current law. It is an attempt to place unions on an equal footing with all other private political organizations that have a right to organize, solicit members, and advocate what they believe. If Mark Janus is victorious, unions will retain all the legal rights that other private organizations enjoy. The only question that remains, then, is whether it violates Catholic teaching to treat public sector unions equally under civil law.
Modern Public Employee Unions and Free Association
According to Rerum Novarum, workers have a natural right to associate and to advocate their own interests in obtaining a just wage as an extension of their natural right to self-preservation. Nowhere, however, does Rerum Novarum say that workers should be compelled to join such associations. On the contrary, it warns that the state shouldn’t interfere with union governance, “for things move and live by the spirit inspiring them, and may be killed by the rough grasp of a hand from without.”
The fear that thousands of workers will resign their membership if given the choice may be revealing about what spirit is sustaining modern public employee unions. Unions, at their best, protect the dignity of human labor. Like all organizations, however, they can forget the nobility of their mission and singlemindedly pursue certain ends at the expense of the public good, and even at the expense of the workers they are meant to protect. Teachers’ unions, for instance, have been adamantly opposed to education reforms such as the spread of charter schools and merit-based pay, even though, according to a poll from the Harvard Kennedy School, a substantial number of teachers support these reforms and believe they would make their calling in life—the education of children—more successful.
But public employee unions, relying on the state to coerce membership, don’t have to give much thought to what their members really believe. They can instead pursue political agendas that have very little to do with workers’ rights and interests in the workplace. In fact, many modern public employee unions undermine Catholic teaching directly. The largest teacher’s union, the National Education Association, is committed as an organization to supporting “reproductive rights.” The NEA also partnered with the Human Rights Campaign to produce a guide for teachers to encourage children who identify as transgender to transition without their parents’ permission. In California, the prison guards’ union used their immense power to block much-needed reforms to California’s inhumane prison conditions.
Many teachers—even those who disagree with the national politics of organizations like the NEA—still admire and respect the work of their local union chapter. And indeed, the local union is the kind of organization Rerum Novarum has in mind: the free association of workers united in protecting their local interests. But a large proportion of most public employee union fees is still sent to support the state and national unions, whose mission is explicitly political.
Conscientious Christians and Catholics can certainly find much to object to in these national and partisan organizations. And, if they leave their unions, it may be because they take Rerum Novarum seriously. Pope Leo XIII warned against organizations that “do their utmost to get within their grasp the whole field of labor, and force working men either to join them or to starve.” If workers find themselves belonging to an organization that is opposed to the public welfare or that endangers their soul, Rerum Novarum tells them to leave and form new organizations.
However, it is exactly that right to freely organize that our current law does not recognize. To fully have that right, workers must have the freedom not only to join a union but also to leave one. And unions, even though they are capable of performing admirable and needed work, must themselves be subject to the fundamental right of association taught in Rerum Novarum.
It is true that Rerum Novarum is also concerned with other natural rights such as a just wage and the ability to support a family. Any just regime must respect those rights and allow workers to protect them. But the current regime tramples the right to free association in the name of all the others. And after forty years, it is clear that mandatory unionism has not produced better unions that are public-spirited and concerned with the spiritual health of their members. Treating public unions equally under the law—with all the rights and duties of other mediating institutions in civil society—will bring a needed corrective and provide an opportunity to establish organizations that better reflect the Catholic ideal of unions.
Brian Miller is the Director of Legal and Public Affairs at the Center for Individual Rights.