When the government-employee unions lost at the Supreme Court in Janus v. American Federation of State, County and Municipal Employees last week, the court’s ruling was primarily about the freedom of speech — particularly, the freedom from compelled speech.
Beyond its implications for free-speech jurisprudence, Janus, which ruled that non-union members couldn’t be forced to pay partial union dues known as “agency fees,” could have serious effects on union membership. Anyone trying to predict the effects ought to look to Wisconsin, and the aftermath of Gov. Scott Walker’s Act 10.
In 2011, Gov. Scott Walker and Wisconsin’s Republican legislature took up Act 10 to curb the collective bargaining powers of government-employee unions. The fight became open political warfare in the Badger State with massive protests and recall elections. But the law survived a political firestorm and multiple court challenges. The results have been dramatic.
Public employee union membership plummeted in Wisconsin, from about 50 percent of the state’s public workforce in 2011 to just 22 percent by 2017. This is lot of workers leaving union ranks, from 187,000 members down to just 67,000 members in 2017, a 64 percent drop. Various union councils have merged, closed offices, and cut staff, and union coffers have shrunk as a result.
Janus may or may not lead to comparable declines in union membership elsewhere. The Supreme Court’s decision mirrors Act 10 in ending mandatory agency fees, a vital source of funding for labor unions in 22 states. But Wisconsin went further, restricting collective bargaining rights for public employees to base wages, requiring contributions to health and pension costs, requiring annual union recertification votes, and preventing public entities from collecting membership dues via paychecks.
Some states have eliminated agency fees without the broad reforms of Wisconsin. The experience there suggests that Janus could lead to a nationwide decline in union membership. The unions lose the funds that agency fees provided, and once a worker saves 100 percent of dues by not joining, instead of some fraction, the marginal cost of joining the union rises.
Whatever Janus’ impact, Wisconsin’s experience suggests that a decline in the size and power of public employee unions delivers the public significant benefits and few costs. Wisconsin’s collective bargaining reforms were about helping state and local governments cope with tightening budgets. Act 10 worked miracles for school districts and local governments, saving an estimated $5 billion dollars in the years after enactment.
More money was directed into classrooms and government services instead of employee legacy costs. And despite charges from teachers unions that class sizes would explode and that the law caused a teacher shortage, a 2016 Wisconsin Institute for Law and Liberty study found no appreciable change in the ratio of students per teacher, and Wisconsin’s teacher shortage was found to begin well before Act 10.
Public employee unions did not simply wave the white flag in Wisconsin after Act 10, and they won’t do so in the wake of Janus. Many states with strong union power have already tried to insulate themselves from the effects of Janus.
States like New York, New Jersey, Washington, and California have attempted to boost public employee union membership through legislation that creates mandatory pressure sessions, limited windows for opting-out, and allowing for recruitment during the work day. Democrats in Congress have introduced comparable legislation, although it has little chance to become law.
An important contrast between Act 10 and Janus: The latter is a court decision and not legislation. This makes Janus both more resilient and less far-reaching than Act 10. The Court struck a blow for free speech, and neither Congress nor the states can countermand its constitutional ruling. But if state and local governments are to fully assert their power on behalf of the taxpayer, they will still need to pass Act 10-like legislation.
Janus requires unions to convince workers to hand over their hard-earned money. If, as is expected, fewer of them do so, the political power of these unions will no longer be artificially inflated and reflect only their actual support. Perhaps reformers in more states will take on these unions in an effort to cut the size, scope, and cost of government. Wisconsin’s experience makes the case for doing just that.
Rick Esenberg is the president of the Wisconsin Institute for Law and Liberty, and Collin Roth is a policy analyst there.
