The union voice is not my voice. The union’s fight is not my fight. -Mark Janus

Public sector unions are no stranger to constitutional challenges but the imminent Supreme Court in Janus v. AFSCME just may change the game when it comes to free speech and agency fees or shared fees. Since 1977, union members have had the right to opt out of paying dues that was spent on purely political activity but are obligated by law to pay to pay “agency” or “fair share” fees.

The argument boils down to the First Amendment. While unions assert that mandatory fees are necessary to prevent “free riders” from benefiting from union contracts, dissenting union members argue that the forced dues violates their First Amendment rights. If the case sounds familiar, it is. Rebecca Friedrichs brought the same case against the California Teachers Association last year but the predicted outcome in favor of the plaintiff never came to be when Justice Antonin Scalia died unexpectedly before a decision was handed down. With a 4-4 ruling, nothing changed in the law.

It is true that union activity is often blatantly political. During my time in two teachers’ unions, my mailbox would be filled with materials telling me who I needed to vote for and why. I remember one particular year when Howard Dean’s face graced the cover of every piece of union mail I received. They didn’t pick a winner during the primary that year but they sure spent scads of members’ money in their efforts to do so.

But no one is debating the dues that fund the overt political expenditures. Though the process is onerous to opt out (another case is headed to the Supreme Court to take up that issue), members do have the right not to pay the dues that fund activity that is purely political.

But here’s the rub. Many people, myself included, see all union activity as inherently political, including the collective bargaining process. The plaintiff and his supporters believe that issues negotiated by public employee unions—employee pay, pensions, or when teachers can be fired—are inherently political. Attorneys for Janus wrote in their petition to the Supreme Court, “agency fees inflict the same grievous First Amendment injury as the government forcing a citizen to support a mandatory advocacy group to lobby the government.”

AFSCME argues that the precedent set in 1977 (Abood v. Detroit Bd. of Education) should remain in place because it prohibits members from becoming “free riders” and getting the benefits that come with union contracts without paying for them. They also argue that it is easier to bargain and “ensure labor peace” if employees are represented by one entity.

According to an Education Next survey of the general public and teachers on mandatory dues, teachers narrowly oppose them, 47 percent to 44 percent. The general public opposes them 44 percent to 37 percent. But perhaps most surprising is that a majority of teachers report that they are not familiar with the Janus case surveyed the general public and teachers on mandatory dues, and found that teachers narrowly oppose them, 47 percent to 44 percent, while the general public opposes them 44 percent to 37 percent.

And while some describe a potential ruling in favor of Janus and against unions as cataclysmic in terms of union membership and revenue, it seems that a majority of rank and file members of teachers’ unions are not even aware of the case. In a recent national survey conducted by Educators for Excellence, 57 percent of teachers reported they had heard nothing about the case and 21 percent had not heard much.  

A supreme Court decision is expected later today. Check back for follow up about the decision and what it may—and may not—mean for union membership and teachers more generally.