The Supreme Court has rejected the fees in the public sector because they equate to compelled political speech. New research suggests that the same rationale may apply in the private sector.
If you’re an American employee, your free-speech rights may depend on where you work. Five years ago, the Supreme Court held in Janus v. AFSCME that “agency fees” are unconstitutional in the public sector. Agency fees are charges levied on employees who decide not to join a union; they’re used to fund union bargaining. The Court struck them down because, in the public sector, unions bargain with the government—and bargaining with the government is inherently political. That made the fees equivalent to political speech. But when Janus was decided, most people thought it wouldn’t apply to the private sector. After all, private-sector unions bargain with private companies. And bargaining with companies, they assumed, was apolitical.
But that assumption may have been too hasty. New research, including a powerful new book by Philip Howard, shows that all unions—public and private—have embedded themselves in partisan politics. Across the board, unions have shifted their focus from negotiating contracts to passing laws. They have funneled billions of dollars into campaigns and, in the process, become one of the most influential forces in American politics. In fact, they are now so tied up in politics (and so distant from bargaining) that some scholars have described them as little more than “political organizations.” And if that’s an accurate description, Janus applies equally to all unions—public and private. If all unionism is political, all agency fees are unconstitutional.
The law on agency fees hasn’t always differentiated between public and private. The Supreme Court first addressed the fees in a pair of private-sector cases, Railway Employees’ Department v. Hanson and Machinists v. Street. In Hanson, the Court rejected a First Amendment challenge to agency fees in general. It held that the government could usually make employees pay for union activities without violating the Constitution. But in Street, it qualified that rule. It held that unions couldn’t spend compelled fees on political activities, such as lobbying or campaign contributions. Instead, they could spend the fees only on nonpolitical activities, such as bargaining and contract administration.
For a time, the Court applied the same rule in the public sector. In Abood v. Detroit Board of Education, it allowed unions to collect agency fees for bargaining and contract administration, but not for politics. As in Street, it reasoned that some union activities were divorced from politics and so could be funded through compelled fees.
But that rationale broke down in Janus. There, the Court concluded that all public-sector unionism was bound up in politics. Every decision about public workplaces related to public policy, public finances, or both. Bargaining could not be separated from politics. And since all public bargaining was political, all public agency fees were unconstitutional.
The result has been a split between the public and private sectors. Agency fees are now illegal in the public sector, but common in the private one. Private unions keep demanding agency fees, and courts keep letting them collect. These courts have continued to assume that, in the private sector, at least some union activities can be separated from politics.
But that assumption has become more questionable by the day. Unions now bargain less than they have in a hundred years. Unionization rates have plunged across the economy, especially in the private sector, where they represent only about 6% of employees. Fewer private employees are now covered by collective-bargaining agreements than at any time since the early 1900s. And even as their numbers have declined, unions have changed their tactics. They no longer pursue workers’ interests mainly through private negotiations. Instead, they try to change workplace policy mostly through lobbying and the electoral process.
This change didn’t happen overnight; it took decades. Though it’s hard to imagine now, unions once disclaimed any interest in politics. Instead, they adhered to the doctrine of “voluntarism”: the idea that workers could make lasting change only through private, voluntary action. Voluntary action was more durable than legal coercion—and more legitimate. It left unions free from government influence. It also supported their claim to represent all workers. It helped them promote a universal labor movement, one not beholden to any political ideology or party.
Voluntarism was closely associated with AFL President Samuel Gompers. But after his death in 1924, the doctrine slowly faded from view. That same year, the AFL endorsed its first presidential candidate, the socialist Robert LaFollette. And in the following decades, it took an even more active role in political campaigns. It created a dedicated campaign arm, the Committee on Political Education. It also founded and distributed newsletters devoted to campaign propaganda. By 1952, it was ready to endorse its first full slate of national candidates—all Democrats. It followed with similar endorsements in 1956, 1960, 1964, and 1968. Labor historians have described these last two endorsements as “virtually automatic.” Indeed, according to the historian Arthur Leonard, a new trend had taken hold: the AFL was now fully engaged in politics. And it was engaged almost exclusively on behalf of one party.
Since then, the trend has only accelerated. In a 2010 article, NYU professor Samuel Estreicher observed a “qualitative change in labor’s relationship to the state: trade unionism as a supplement to politics.” He noted that from 1989 to 2010, eleven of the top-thirty political action committees belonged to unions. In the 2009–10 cycle alone, eight unions made the top twenty. And these unions overwhelmingly gave to Democrats. The AFSCME (the second-largest donor on the list) gave Democrats 98% of its money. And the National Education Association (seventh largest) sent Democrats 92%. Other unions were only marginally less lopsided: overall, they sent about 90% of their money to Democratic candidates. From these numbers, Estreicher concluded that modern labor unions had become little more than “political organization[s].”
That conclusion has been amplified in a new book by Philip Howard, Not Accountable. Howard reports that from 2000 to 2009, unions outspent all business groups combined in 38 states. And from 2008 to 2020, their spending rose four-fold. They spent about $4 billion per election cycle, or $1 billion every year. And as large as that figure is, it understates their activity. It omits in-kind support, such as knocking on doors and manning phone banks. Howard estimates that if this in-kind support were included, political activity would have made up almost 60% of union spending.
But spending is only the starting point. Besides funding campaigns, unions have engrafted themselves onto the party’s internal machinery. For example, teachers’ unions alone now account for 10% of all delegates to the Democratic National Convention—more than any other group. And unions often run their own members as Democratic candidates. These candidates then translate union priorities into law. They’ve helped push through higher minimum wages, prevailing-wage laws, project-labor requirements, and wage boards—all designed to extract benefits unions once sought at the bargaining table.
Though Howard focuses on public unions, his research also implicates private ones. If he’s right about unions in general—that they’re now focused mostly on politics—then the concerns animating Janus apply across the board. Janus struck down agency fees in the public sector because public unionism was inseparable from politics. Now, Howard’s research suggests that the same is true of private unionism. Unions are no longer bargaining organizations that sometimes engage in politics; they are political organizations that sometimes bargain with employers.
That change undermines the constitutional distinction between bargaining and politics. Even in the private sector, bargaining is politics, and politics is bargaining. While they may once have been separate, they’re both now tied up in the same political agenda. The “labor movement” is now a political movement; a dollar to unions is a dollar to Democrats. There is no clear line between the two.
If that conclusion seems radical, ask yourself the reverse: could you say that unionism is not political? When you see a headline about a pro-union bill or ordinance, do you have to ask which party sponsored it? When a politician shows up at a picket line, do you have to wonder which party she belongs to? And when labor votes break down along party lines, do you have to check which party voted which way?
Of course you don’t, and neither do employees. Employees know what unions stand for. And for that reason, they sometimes object to paying dues. They should have a right to do that whether they work for UPS or for the U.S. Postal Service. When it comes to free speech, your rights shouldn’t depend on where you work.
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