The Supreme Court’s recent decision in Janus v. American Federation of State, County and Municipal Employees should be a wake-up call for Congress. Nearly two-thirds of Americans oppose the collection of mandatory union dues, including most union household members. In siding with plaintiff Mark Janus, the court freed millions of public-sector employees from compelled speech. In practical terms, the decision affirmed that government employees should not be forced to support political activity that they find offensive.
Unfortunately for them, the Janus decision only scratches the surface of labor reform. However pivotal a victory for public workers, the court’s final verdict does nothing to help private-sector union members, who are stuck with outdated labor laws that undermine workplace democracy.
In 2017, the private sector was home to 7.6 million union members. Under current labor law, these employees are not guaranteed the right to a secret ballot union election. Union officials can circumvent the private vote with publicly staged “card checks,” which leave employees vulnerable to union representation. Roughly 40 percent of all union certifications bypass the secret ballot.
Even worse, today’s unions resemble political machines more than worker advocacy organizations. Justice Samuel Alito recently hit the nail on the head when he described the line between collective bargaining and political advocacy as “impossible to draw with precision.”
And current laws only make union political advocacy easier, at the expense of dues-paying employees. Union officials are not required to obtain opt-in approval from their members before spending dues money on political advocacy. Oftentimes, they disguise blatant politicking as “representational activities,” which makes it difficult for employees to keep track of union spending and hold their “representatives” accountable.
Since 2010, union officials have sent more than $1.3 billion in member dues to liberal advocacy groups without prior member approval. The recipients of union money include the Clinton Foundation, Planned Parenthood, and hundreds of other liberal groups closely aligned with the Democratic Party. At the same time, more than 40 percent of union household members vote Republican in any given election cycle.
Yet their dues money can be spent on political advocacy without their affirmative consent. As the court argued, coercing employees to fund political causes without their prior approval is a direct violation of the First Amendment. Where it takes place, the public or private sector, doesn’t change that fact.
Fortunately, we don’t have to wait for the next Supreme Court case to solve this problem. Congress can act now.
The Employee Rights Act, a bill being considered by the House Education and Workforce Committee, would update American labor law for the first time since the 1940s. In the process, it would guarantee secret ballot union elections and protect employees from unapproved political spending. The ERA would require union officials to obtain opt-in approval from their members before financing political causes, liberal or conservative.
As it stands now, private-sector union members can opt out of having their hard-earned dues used for political purposes, but only after the fact. As you might imagine, this exposes employees to well-documented union bullying and harassment, as union officials scramble to maintain their political influence.
Given union intimidation, it’s no wonder that union members support labor reform. The ERA’s paycheck protection provision and other reforms register over 70 percent approval across all demographics. With more than 180 co-sponsors in the Senate and House, the ERA has a real chance of passing this year.
After seven decades, it’s time to finish the job. There should be no private-sector loophole when it comes to workplace democracy.
Richard Berman is executive director of the Center for Union Facts.
