Janus v. AFSCME: Eight Years of Evidence on Forced Fees and Worker Choice

National Institute for Labor Relations Research

On September 28, 2017, the Supreme Court granted the petition for a writ of certiorari in Janus v. American Federation of State, County, and Municipal Employees, Council 31. Oral argument followed on February 26, 2018. On June 27, 2018, the Court decided the case 5–4. The ruling held that public-sector agency fees violate the First Amendment. Abood v. Detroit Board of Education (1977) was overruled.

The decision converted every state and local government workplace in America into a Right-to-Work setting for purposes of compulsory union payments. This briefing reviews the oral argument, the holding, and the measurable effects on public employees.

Oral Argument: February 26, 2018

The argument exposed the political character of public-sector bargaining.

William L. Messenger of the National Right to Work Legal Defense Foundation argued for the petitioner. His opening framed the legal error:

“Abood should be overruled because it failed to apply heightened First Amendment scrutiny to a compulsory fee for speech to influence governmental policies.”

On the claim that opt-outs would starve unions of resources, Messenger told the Court:

“To the degree to which the union resources are diminished by individuals exercising their First Amendment right not to subsidize that union, I submit that’s a perfectly acceptable result.”

In rebuttal, he answered the labor-unrest warning:

“The proposition that agency fees are the costs employees have to pay to prevent unions from striking, I submit is not only extremely attenuated but also would make agency fees effectively a form of protection money, the idea that the government needs to force its employees to subsidize unions or otherwise the unions will disrupt the government.”

Justice Kennedy told union counsel that the government’s theory lacked weight and identified the core problem:

“What we’re talking about here is compelled justification and compelled subsidization of a private party, a private party that expresses political views constantly.”

After counsel conceded that ending forced fees would reduce union political influence, Kennedy asked:

“Isn’t that the end of this case?”

Justice Alito focused on compelled speech itself:

“When you compel somebody to speak, don’t you infringe that person’s dignity and conscience in a way that you do not when you restrict what the person says?”

Those questions tracked the Court’s later conclusion that collective bargaining in the public sector is inherently political: wages, staffing levels, pensions, and work rules are questions of public policy paid for with tax dollars.

The Holding

Justice Alito’s majority opinion stated:

“In simple terms, the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.”

And the operational rule:

“Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”

Waiver of First Amendment rights cannot be presumed. Silence or an old “fair share” card is not consent.

Measured Outcomes

Independent reviews of employer payroll data, not union self-reports, show a large shift:

• Mackinac Center analysis of public-records requests found roughly a 22 percent drop in dues-paying status among surveyed government workers covered by contracts, corresponding to an estimated 1.2 million fewer fee-payers than would have existed under the pre-Janus regime.
• Other tallies place the figure between about 850,000 and 1.3 million public employees who have stopped paying dues or fees.
• AFSCME’s own active dues-paying membership fell by more than 200,000 in the years immediately after the decision.
• Several state education and general-government units show declines in dues-paying density of 15–35 percent, even as the number of represented employees has stayed flat or grown.

Revenue effects follow. One widely cited estimate put annual lost union revenue at $700 million or more. Those dollars previously came from workers who had never joined and, in many cases, actively opposed the union’s political program.

The “free rider” argument did not survive contact with the data. Unions continue to serve as exclusive representatives in Right-to-Work and post-Janus jurisdictions. What changed is that representation must now be sold, not extracted.

Research Implication

Janus is the cleanest natural experiment in modern American labor policy: a sudden, nationwide end to compelled public-sector fees. The evidence so far is that a substantial minority of covered workers—often one in five or more in affected units—prefer not to pay when given a real choice.

That finding is consistent with NILRR’s long-standing research on compulsory unionism: when the law stops treating non-members as a captive revenue source, many employees keep their wages and decline the speech.

Further reading and current fact sheets are available at NILRR.org. Public employees seeking to exercise the right recognized in Janus can obtain forms and free legal assistance through the National Right to Work Legal Defense Foundation at MyJanusRights.org.