Volume 2 Issue 2 Summer 2018

Public Sector Unions After Janus

It is no secret that the US labor movement is mired in a seemingly endless decline. The overall rate of unionization reached its peak in the early 1950s, when roughly one-third of the workforce was organized. Today, the rate is 10.7 percent, the lowest level in a century. But a focus on the overall rate masks important differences in the fates of private and public sector unions, which are governed by separate legal regimes. Unionization in the private sector has plummeted from roughly one-quarter in the 1970s to a harrowing 6.5 percent today. By contrast, public sector unionization has remained fairly constant, hovering around 35 percent since the early 1980s. Local government unionization still tops 40 percent, and some states and cities boast Nordic rates of public employee union membership.1

This split between private and public sector unions has had dire consequences for the labor movement as a whole. It prevented the consolidation of a truly national labor movement and put the two sectors on fundamentally different developmental paths. As private sector unions eroded, public sector unions were increasingly vulnerable to political and ideological attack.2 A day of reckoning was bound to arrive, and it finally did in the shape of a recent Supreme Court case called Janus v. American Federation of State, County, and Municipal Employees.

On its face, Janus took up the arcane question of “agency fees” and their constitutionality in state and local government employment.3 The plaintiff, a former Illinois child-support worker named Mark Janus, argued that such fees violated his First Amendment right to free speech and free association. Backed by a constellation of right-wing legal outfits, he claimed that collective bargaining in the public sector is inherently political, and that public employees should not be required to pay dues or fees to an organization whose political activities they disagree with. Therefore, the public sector “agency shop” that prevailed in Illinois and many other states must be abolished and replaced with a so-called “right to work” regime in public employment nationwide. 4

Of course, Janus and the string of cases leading up to it was never really about free speech. The ultimate goal of the groups that bankrolled these cases is to frustrate working-class organization, strengthen the hand of employers, and undermine support for the public sector. Some of the justices deciding the case could barely conceal their agreement with this brazenly partisan political agenda. In a particularly testy moment in the oral arguments, Anthony Kennedy let the mask of impartiality slip when he asked the defendant’s lawyer a very pointed question: “I’m asking you whether or not in your view, if you do not prevail in this case, the unions will have less political influence; yes or no?” The lawyer replied in the affirmative, prompting Kennedy to snap back: “Isn’t that the end of this case?” Counsel gamely tried to steer the argument back to the question at hand, but to little avail. The stakes were clear, and the union’s defeat may as well have been announced on the spot.5

At almost every turn in their opinion, the conservative justices portray public employee unions as a parasite upon the body politic, a malevolent force responsible for grievous offenses against free speech, free association, and fiscal rectitude. Therefore, in their view, none of the various arguments in favor of the agency shop could possibly justify the continued maintenance of compelled speech and political usurpation. The open shop must rule.

This stark panorama of union malfeasance is, to put it mildly, curiously out of step with the actually existing balance of political forces. The Janus decision represents the successful culmination of a years-long judicial campaign against public employee unions and punctuates a relentlessly bruising period for organized labor as a whole. Since the crash of 2008, anti-labor forces have brought the open shop to a majority of states, restricted the scope of public sector collective bargaining, and enacted “paycheck protection” laws compelling unions to obtain express authorization from each member before deducting dues. These attacks have gone farthest in Republican-dominated states, but unions have not fared particularly well in heavily Democratic states either. In recent rounds of contract negotiations Democratic governors and mayors have driven a hard bargain, offering wage increases at or below the historically low rate of inflation and winning concessions on health benefits and pensions. Far from being on the march, unions in the public sector and in general are bloodied and in retreat before a wide-ranging bipartisan attack.

Labor’s enemies have also taken advantage of the financial crisis to launch an assault on the public sector itself, imposing a brutal austerity program at all levels of government. Today there are roughly 670,000 fewer public employees than there were in 2010, and the share of public employment in total employment (just below 15 percent) has reached its lowest level since 1957.6 Public education systems have been singled out for attack, and the results have been nothing short of devastating. According to the Center for Budget and Policy Priorities, overall funding for public schools had not yet recovered to pre-recession levels in twenty-nine states as of 2015 (the most recent year for which data is available). Seventeen of those states cut their education budgets by ten percent or more, including two (Florida and Arizona) which cut per student funding by a shocking 25 percent.7

It is no coincidence that many of the states which cut education funding to the bone — Arizona, Kentucky, North Carolina, Oklahoma, West Virginia — were recently swept by a wave of public school strikes that may well continue into 2019. Striking school workers won a number of impressive victories that push back against both the anti-union offensive and the austerity drive. In West Virginia, strikers won a 5 percent wage increase for all state employees, defeated a proposed charter school expansion, protected seniority provisions, and killed a paycheck-protection bill. 8 Oklahoma workers won a modest increase in school funding and raises for teachers and support workers, and in Arizona strikers won a remarkable wage agreement that will increase their pay 20 percent by 2020.9 Strike leaders have made it clear that their fight won’t stop here. Many fundamental issues remain unresolved, from taxes and funding levels to health insurance coverage. Labor unrest will continue to roil Republican-dominated states, and if simmering discontent in the big urban school districts boils over the strike wave could become a truly national phenomenon.

These strikes are one of the most remarkable developments in contemporary US politics and have quickly taken their place in the pantheon of great American labor struggles. They showed that Janus and the new attacks that are sure to follow don’t have to be a death sentence for the labor movement, and that popular support can still be galvanized behind public employees engaged in socially disruptive strike activity.

Even so, there is little doubt that labor’s long crisis has entered a new and highly dangerous phase. Barring an unexpected reversal of labor’s political fortunes, it seems likely that the open-shop drive will soon turn from the public sector to the private sector, where the unionization rate is already perched on the brink of irrelevance. The further loss of members and revenue will trigger an organizational crisis in many unions, some of whom have already begun to slash budgets and cut staff.10 In the midst of all these pressures the labor movement will grapple with a series of momentous strategic decisions, decisions that will do much to shape the direction of the movement for years to come.

How unions respond to this will determine the labor movement’s future in the United States. Currently, two paths seem available to it — statization and politicization. Recent events have showcased tendencies in both of these directions; the question of which one will predominate will largely be answered by the strength of left-wing currents inside the unions and in the broader political context.

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