Chris Cerf: When Support Is No Longer Mandated, It Must Be Earned. How Will the Unions Rise to That Challenge Under Janus?
Forty-two years ago, a man named George Maynard objected to a New Hampshire law requiring that he display the motto “Live free or die” on his license plate. The Supreme Court struck the law down, noting that the First Amendment, which more typically is invoked to ban state actions that prevent citizens from speaking their mind, also bans laws that compel citizens to espouse views they abhor. Years later, when I was serving as law clerk for Justice Sandra Day O’Connor, I remember asking myself, “Which would be worse, having my views suppressed or forcing me to publicly endorse ones I found offensive?”
When one cuts through all the rhetoric and hyperbole surrounding the decision in Janus v. AFSCME, one finds that question at its heart. For Mark Janus, a law that requires paying an agency fee to a union he doesn’t belong to and that advocates positions he disagrees with is clearly unconstitutional, the view the court endorsed by a slim 5-4 majority. The fact that the fee is calculated to exclude the cost of explicitly political union activities — like supporting a particular candidate — is of no bearing since even job-related advocacy, like opposing tenure reform, demanding more costly benefits, or supporting seniority-based hiring, has significant policy and political implications.
Justice Elena Kagan’s unusually impassioned dissent meets this argument with the legal equivalent of “give me a break.” Over 40 years ago, the court rejected a constitutional challenge to agency fees as a reasonable governmental approach to fostering labor peace and guarding against free riders (employees who benefit from union representation but don’t pay for it). And, the dissent continues, there is no principled reason to overturn that precedent now, especially in light of the massive disruption that the majority’s holding will cause. (Full disclosure: Kagan and I were colleagues in the White House Counsel’s Office in the first Clinton administration, and she is as smart and decent as they come.)
I stopped paying my bar dues over a decade ago, when I turned my full professional attention to school reform. So I offer these views not as a former constitutional lawyer, but as a longtime school administrator. Disagreements about the legal merits of the decision aside, what will this allegedly tectonic shift in labor law mean in real-world terms?
Education reformers have been almost giddy over the Janus ruling, a sentiment rooted in hard experience rather than a reflection of an anti-union animus or a “corporate” (read: Koch brothers) orientation. In many states, including my native New Jersey, the teachers union is by far the most powerful and well-funded political organization. This power is deployed with devastating, indeed, often thuggish effect to oppose virtually every page of the reformer’s playbook: tenure reform, educator accountability, parental choice (especially regarding charter schools), and summative assessments honestly geared to high academic standards, to name a few.
I vividly recall a moment as education commissioner that illustrates the point. Sitting in a state legislator’s airless office, I was seeking his support for ending Last In, First Out, the pernicious rule that, in the event of a layoff, requires preserving the job of a demonstrably poor teacher and firing the most talented educator in the district if the former is even a day more senior. His response: I agree with you, but if I support this, they have told me they will take me out, and I’m not prepared to lose my job.
An idle threat? Ask Democratic Senate President Steve Sweeney, a proud union member in his own right. When he had the temerity to prioritize the state’s fiscal solvency over the New Jersey Education Association’s demand to fully fund the pension system, the union endorsed Sweeney’s Republican opponent, an avowed Trump supporter. In the end, the union’s $5 million media campaign failed to unseat Sweeney, but the message was sent: Cross us at your peril.
These are hardly isolated incidents. I would be hard pressed to name a single big-city superintendent, independent policy advocate, or state education official who has not experienced the in terrorem influence of the seemingly bottomless treasury and often brilliantly effective (if frequently untruthful) media and political operations of the local, state, and national teachers unions.
Not surprisingly, then, Janus has caused visions of sugar plums to dance in reformers’ heads. By the court’s own reckoning, “billions of dollars” have been “transferred to public-sector unions in violation of the First Amendment” over the years. In the most consequential line in the majority opinion, not another penny may be collected “unless the employee affirmatively consents.” (Thus, no games allowed with presumptive fees and short opt-out windows, killing in the cradle a wave of union-sponsored legislation intended to blunt the decision’s impact.)
Although quantifying the actual impact of Janus is impossible, leaked internal documents indicate that unions themselves are projecting the loss of hundreds of thousands of members and as much as $50 million in lost dues. The California Teachers Association alone anticipates slashing its budget by $20 million as a direct result of the ruling. Whatever the actual figure, reformers believe, the opinion will put a material dent in the unions’ ability to fund their political agenda.
Correspondingly, unions and many progressives view the decision in quasi-apocalyptic terms. Janus, they argue, will cripple public-sector unions at a time when they serve as a critical countervailing force to the powerful financial and corporate interests that have seized control of our political system. Unions are already under assault, they point out, as evidenced by declining membership and well-funded Republican-led movements to crush them in states like Wisconsin and Michigan. Especially in the Citizens United era, they contend, the Janus decision has the practical effect of ceding critical ground to the likes of the Koch brothers on the right flank of American politics.
Beyond these political consequences, as Kagan’s dissent elaborates, Janus upends an established legislative balance now embodied in countless laws and contracts, “alter[ing] … the relationships of public employees and employers in … wholly unexpected ways.” More fundamentally, by inappropriately “weaponizing” the First Amendment, she suggests, the court has precipitously ended a dynamic and democratically vital debate at the state level about how best to structure the relationship between public employees and government.
For several reasons, those mourning and those celebrating the untimely demise of agency fees and the new order engendered by Janus both need to take a step back from their rhetorical excesses. Earth has not spun off its axis, of course, but neither has the power of public-employee unions suffered a terminally grievous wound. Kagan makes a compelling case that there are serious doctrinal consequences associated with the court’s reasoning — for example, to the revered (if routinely manipulated) principle of stare decisis, as well as to the balance between democratic government (majority rules!) and black-robed invocation of unyielding constitutional protections (no matter what the majority wants, the First Amendment forbids it!).
The practical consequences of the decision, however, are likely considerably less profound than both detractors and proponents have maintained.
Let’s start with finances. Cynics have suggested that the apocalyptic revenue projections leaked by the National Education Association and its affiliates represent something of a litigation feint in light of the large reserves they have maintained and other ameliorative strategies at their disposal. Taking their numbers at face value, however, the cuts would represent only a roughly 15 percent reduction — painful, but not nearly enough to eliminate the teachers unions’ status as the biggest, baddest, best-funded voice in state and local politics. Just for grins, imagine a confiscatory tax that immediately stripped Mike Bloomberg, Bill Gates, and Warren Buffett of even 25 percent of their wealth, which is measured in the many tens of billions apiece. Infuriating to them? Undoubtedly. Unconstitutional? Probably. But likely to affect their spending habits or influence? Not a chance.
Moreover, especially in the realm of education, effective political activism is by no means perfectly correlated with a union-friendly legal environment, much less agency fees. This past year has seen teachers successfully strike for higher salaries in Oklahoma, West Virginia, Arizona, and Kentucky, making 2017-18 the highest-water year for educator activism since the Al Shanker–led job actions in New York City in 1968. Notably, none of these states allowed agency fees even before Janus. (Indeed, 28 states already prohibited them.) And in each case, it was far from clear whether the union was leading or merely riding the crest of the wave. Whatever the answer, this history undermines any argument that a ban on agency fees strikes a fatal blow to effective educator advocacy.
To be sure, the ruling disrupts dozens of laws and hundreds of contracts, a practical reality the significance of which should not be minimized. When the dust settles, however, I suspect the changes may well be reminiscent of the inevitable response to comprehensive tax reform, what one might call the build-a-better-mousetrap phenomenon. Creative accountants, aggressive lawyers, and effective lobbyists seem always to find ways to construct workarounds. And, trust me, union lawyers are already hard at work on post-Janus legislation (as has already been passed in New Jersey and New York, for example). The decision’s holding that employees must opt in presents a tough challenge, but I wouldn’t underestimate the potential for creative measures to mitigate the practical impact of the ruling.
Taken together, these considerations cast real doubt that Janus will be the game-changer that education reformers anticipate or unions fear — at least in the ways proponents and opponents of the decision have articulated. As others have thoughtfully argued, however, that hardly suggests that the decision is not a watershed in other ways. Most fundamentally, at least in the case of teachers unions, the decision should precipitate a crisis of relevance, with a corresponding and entirely salutary period of reflection about how best to attract and retain members post-Janus. As Dan Weisberg wisely notes, the only way the decision actually reduces revenue would be “because a significant number of their own members decided that their union hasn’t earned a chunk of every paycheck.” As recent surveys have made clear, the unions have some work to do to establish and retain their relevance with many members.
Take a typical New Jersey teacher, for example. She is passionate, effective, and committed to her craft. At a salary of $75,000, she knows she fares well compared with her peers in other states, but she also feels grossly underpaid given the high cost of living and a nagging (and correct) sense that she is not rewarded financially at a level commensurate with her contribution to society. Against this backdrop, she is asked (but no longer required) to pay around $850 annually in union dues.
How might she think about this request? Like anyone else, she will ask what value she will get for her money — and there is plenty. Strong, well-funded unions unquestionably generate higher compensation for their members. Whether required to pay dues or not, she is civic-minded and comfortable supporting that advocacy. Similarly, she understands the criticality of having teacher voice well represented in the legislature, and happy to pay for it, even if she does not always agree on particular policy matters. She has also seen colleagues’ livelihoods threatened by arbitrary personnel decisions and understands the appropriateness of paying in advance for representation and advice, just as she has no trouble paying for an insurance policy she hopes she never has to use.
On the other side of the ledger, she was not at all happy to learn that the New Jersey Education Association leadership is paid $1.2 million annually, with an average salary among the top brass of $525,000. And did she really want one penny of her hard-earned income contributing to a $5 million effort to unseat a Democratic leader in favor of a rabid Trump supporter? While she understands the importance of job security, she was deeply troubled by recently leaked tapes in which union leaders candidly revealed their unblinking indifference to morally outrageous episodes of educator misconduct.
Even in less extreme circumstances, she remembers those times when she gave her all to help her students learn, only to see them assigned the following year to a classroom led by a colleague who lacked the skills or commitment to continue their growth. How comfortable is she funding an organization that is so deeply resistant to the idea of educator accountability for student success?
Obviously, I am not in the head of this hypothetical teacher (although I have had occasion to hear from innumerable real ones about this very question). I offer this example only to make a point.
The real significance of Janus is not that it represents a mortal financial blow to public-sector unions or the political causes they historically support. While the hit is certainly not trivial, they will remain a colossus in New York, New Jersey, California, and other states where they already represent the dominant force in state politics, just as the NEA and the American Federation of Teachers will retain that status on the national stage.
The real significance, instead, is that unions will now be forced to be vastly more attuned to the value proposition they offer their members. When support is no longer mandated, it must be earned. The real question is how effectively public-sector unions can rise to that challenge. My hope and expectation is that, after a period of mourning and soul-searching, they will do just that.
Chris Cerf is a former New Jersey commissioner of education, deputy chancellor of the New York City Department of Education, and, most recently, superintendent of the Newark Public Schools.
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