Why Unions' Supreme Court Loss May Not Be as Bad as It Seems

It’s widely assumed that the Janus ruling dealt public-sector unions a major blow. But the numbers may play out differently.
by | September 2018

For years, public-sector unions have been keenly aware of the possibility that their influence could take a hit if a court decision reversed the rules that govern their funding. That day came this summer, when the Supreme Court declared in Janus v. AFSCME that unions could no longer require non-members they represent to pay “agency fees” covering collective bargaining expenses. The decision, which overturned longstanding legal precedent, is widely expected to cut into union budgets and suppress membership.

But just how the ruling will play out remains uncertain, as does its effect on unions’ political power.

To assess public-sector unions’ current political spending, Governing reviewed data on state election contributions reported by the National Institute on Money in State Politics. Nationally, union spending pales in comparison to that of large corporations and major industries. In 2016 and in the limited number of state contests of 2017, public-sector unions contributed $82 million to state-level candidates and party committees, an amount that’s just over 3 percent of total contributions to these campaigns.

In select states, however, unions are more significant spenders. Between 2014 and last year, Minnesota’s public-sector unions contributed $73 million to state candidates and committees, accounting for nearly 8 percent of total contributions within the state -- the highest share nationally. As one might expect, unions in blue states tend to spend the most. But there are exceptions. In Alabama, a red state with a right-to-work law, they represented almost 7 percent of total contributions over the four-year period.

It’s tempting to look to the effects of existing right-to-work laws for clues as to how the Janus decision might unfold. One often-cited study published by the National Bureau of Economic Research (NBER) compared counties in states enacting such laws with neighboring counties in adjacent states that don’t have those laws. Researchers found a 2 to 3 percentage-point drop in voter turnout and poorer performance for Democrats following the passage of right-to-work laws.

It’s unknown, however, whether the Janus ruling will produce comparable results in states that are generally union strongholds. Alexander Hertel-Fernandez, who co-authored the NBER study, says it would be a mistake to assume the effects of Janus will be of a similar magnitude. “In the short run, unions are going to take a hit in their organizational clout and their political clout,” he says. “But in the longer term, it’s really up to the unions themselves as to whether or not they’re able to re-engage their members and restructure themselves in ways that make membership appealing to more workers.”

Much of the political strength of public-sector labor will depend on how well they’re able to retain members. One study by the liberal-leaning Illinois Economic Policy Institute and a University of Illinois professor predicted that the Janus decision would reduce union membership among state and local government employees by 8.2 percentage points, or 726,000 workers. Just over half the total loss would come from California, Illinois and New York.

Unions frequently respond to unfavorable court rulings by allocating more money for recruitment activities and member services, leaving less for campaigns. The NBER study found unions’ political spending was negatively correlated with spending on member services. Teachers unions in Michigan and Wisconsin reported steep declines in political spending following enactment of right-to-work laws.

But unions don’t always need deep pockets to wield significant influence. Take the wave of recent teachers’ strikes in several conservative states that yielded pay raises for educators. Instead of buying costly TV airtime, unions might invest more on grassroots activities, such as in-person canvassing and phone banks. “Where unions have had the greatest political impact,” says Ken Jacobs of the Center for Labor Research and Education at the University of California, Berkeley, “has been in their ability to move their membership to vote and engage in public policy.”

The response of state legislatures to the Janus decision will further determine, at least in part, the amount of influence unions retain. California lawmakers recently passed one measure ensuring that unions could meet with new hires to discuss the benefits of membership, and an additional measure restricting how public employers communicate to employees the advantages and disadvantages of unions. Several other states controlled by Democrats have approved or are considering various measures designed to mitigate the effects of the Supreme Court decision.

At the same time, conservative groups backed by the billionaire Koch brothers and other corporate interests are ramping up outreach efforts in California and other states encouraging workers to drop their union membership. “We’re going to see quite a bit of trench warfare in the coming years,” Jacobs says.

If there’s one key difference between the Janus decision and right-to-work laws, it’s that public-sector unions have had years to prepare for the court ruling. Education Minnesota, with about 90,000 teachers and administrators, has conducted conversations with members about what they want from the union. “We anticipated Janus and knew that now, more than ever, we were going to need to amplify the voices of educators,” says Denise Specht, the union’s president.

Union leaders learned, for example, that many teachers were struggling to pay off student loan debt, so they started a training initiative on loan forgiveness programs and budgeting expenses. Since January 2016, the union has organized 23 new locals. “We are finding more and more people signing up to be political advocates at the workplace or in their neighborhoods because they know what the 2018 election means,” Specht says.

In a 2014 precursor to the Janus case, Harris v. Quinn, the Supreme Court ruled that unions couldn’t collect agency fees from quasi-public employees who weren’t members. Unions representing home care workers responded by strengthening ties with their membership. The United Domestic Workers of America, which represents mostly low-income caregivers, reports its dues-paying membership initially dropped from 68,000 to 48,000 following the ruling, but has since rebounded to about 75,000.

In solidly blue California, Jacobs doesn’t expect a big short-term impact on the participation of public-sector unions in politics, but labor’s role in the long run remains an open question. “We could see a lot more where public policy influence comes through both engagement of members and engagement of the community,” he says, “because that’s what unions will have to do to maintain their membership. They could come out stronger in the end.”