Daniel DiSalvo joins City Journal editor Brian Anderson to discuss the impact of last year’s Supreme Court decision in Janus v. ASFCME, in which the Court ruled that public-sector unions’ mandatory “agency fees” were unconstitutional under the First Amendment.

Unions provide an important source of financial support for politicians—primarily Democrats—around the country. In a new report for the Manhattan Institute, DiSalvo finds that blue states are taking steps to shield their public unions from the full consequences of the Janus ruling.

Daniel DiSalvo is an associate professor of political science at the City College of New York, a senior fellow at the Manhattan Institute, and author of Government Against Itself: Public Union Power and Its Consequences (Oxford University Press, 2015).

Audio Transcript

Brian Anderson: Welcome back to the 10 Blocks Podcast. This is your host, Brian Anderson, the editor of City Journal. One year ago this month, the Supreme Court heard oral arguments in one of the most consequential cases for government labor relations in US history, Mark Janus of the state of Illinois versus the American Federation of State, county and municipal employees. Later that summer, the Court ruled that mandatory agency fees from government employees to unions were unconstitutional under the First Amendment. Public employee unions are an important source of political support for Democrats, of course, and in the wake of the Janus decision, blue states are passing new laws to protect these public unions. To talk about the fallout from the Janus , Janus Case and to explain it, I'll be joined today by Dan DiSalvo. We'll introduce Dan and begin our conversation after the break.

Brian Anderson: Hello again everyone, this is Brian Anderson, editor of City Journal. Daniel DiSalvo is a frequent writer for City Journal. He's a senior fellow at the Manhattan Institute. He's an associate professor of Political Science at City College here in New York and he's the author of "Government Against Itself: public union power and its consequences," which came out from Oxford Press a few years ago. Dan's latest report for the Manhattan Institute is called "Public Sector Unions after Janus" and he recently had a piece on the topic in the Wall Street Journal. Dan, thanks very much for joining us.

Daniel DiSalvo: My pleasure.

Brian Anderson: Leading up to the case in question, we were told that the very existence of public sector unions was going to be at stake. Has it been quite as bad as union supporters feared? What has been the outcome of the post-Janus environment?

Daniel DiSalvo: Well, it hasn't certainly been as bad as supporters of public employee unions feared nor as good you could say as their critics hoped, um, it's been a much slower process. So two big things have really happened. The first is that the Court's decision to strike down agency fees at for, the fees, nonmembers pay to unions as unconstitutional First Amendment violations, meant that unions did lose those monies right out of the gates and that's been a little bit of a slow process and there's some complications we can talk about. But overall, they took a big or significant financial hit.

Brian Anderson: And maybe, maybe just too, before you get to the second point, explain why the unions would lose money as a result of that decision. The, the agency fees structure, uh, isn't that well understood by the public.

Daniel DiSalvo: Sure. So anyone in, joining a state and local government workforce as a police officer, a firefighter, a teacher, the public university professor, if the, uh hmm place they're going to work is already unionized, they come, they are offered a choice either in these 22 states that allow what are called agency fees, uh, you are offered a choice, join the union and pay dues or if you don't join the union pay agency fees, which are set often at...

Brian Anderson: pretty close to the level of skill...

Daniel DiSalvo: Exactly. Nearly a hundred percent or sometimes less, um, and then there can be an opt out provision of political spending. So this partly is a provision that increases the number of union members because many people just say, well, if I have to pay anyway, I might as well be a member. So once these were struck down, there's always some group, and it can vary from a small percentage of a workplace, say 5, 6, 7% to as much as 30% or more of a workplace that is not, doesn't decides not to be a union member and decided to pay the agency fees. So they, those people, whoever they were, as soon as Janus was handed down, the union lost the agency fee revenue from them.

Brian Anderson: I say so. So, um, to get back to the point you were making, um, they did take a hit financially?

Daniel DiSalvo: They did take a hit financially. And this would vary across unions, just depending on how many, what was the percentage of people they represented that were nonmembers? So it could be from, say, California Teachers Association would be a smaller hit because over 90% of teachers in California belonged to the CTA, but not insignificant. Any large organization that loses, you know, 5, 6, 7, 10% of their revenue stream, that's not insignificant.

Brian Anderson: And the second consequence?

Daniel DiSalvo: The second consequence has been that the unions have done two things. They've really pushed for new state laws that have passed in a number of the states that were affected and they've really been on a massive organizing campaign to get some of those agency fee payers to become full fledged union members. Those two things, and we can talk about them in more detail have really helped stave off any declines in union membership because now under Janus, people can receive in effect the benefits of union membership without paying for them. And that was this concern that unions had, that people would start, stop being union members and then they would lose even more money, but the organizing campaign and the laws have helped them stave off.

Brian Anderson: But let's, let's talk a little bit about the laws. These are on a state by state level and who have been some of the trend-setting states there?

Daniel DiSalvo: The trend-setting states are the blue states the big blue states with that have had the strongest public sector unions. So think New York, New Jersey, California, Connecticut. Uh, those have been the ones that have passed some of these, some of these laws.

Brian Anderson: And they're basically replicating the, the situation federally?

Daniel DiSalvo: They're not replicating.

Brian Anderson: What are the laws saying exactly?

Daniel DiSalvo: Well,

Brian Anderson: Are they allowing agency fees, again?

Daniel DiSalvo: They can't allow...

Brian Anderson: They can't...

Daniel DiSalvo: They can't. Agency fees are now constitutionally prohibited.

Brian Anderson: Right, they're not free speech grounds.

Daniel DiSalvo: So, so what they're doing is, one thrust is to help facilitate union organizing. They require, for example, here in New York, um, any new hire to meet for up to an hour on work time with union officials who can then make the case to them for all the benefits of why they should sign a union card and become a union member. In addition, these kinds of laws allow or require public employers to share all the contact information of all public employees with the union so the union can easily access, send mailings to, make phone calls to. To again, contact people who aren't union members or for people who they're concerned might be wavering in their commitment to the union and message them. So partly that's about organizing and recruiting members. The second thrust of the laws is to make opting out for current union members more difficult. So in New Jersey for example, um, you are tied to opting out only around a 10 day window when you joined or took your job. In some states it's also when you joined the union. So that's, it can be confusing, which means you can't opt out of the union except during this one

Brian Anderson: … window

Daniel DiSalvo: slice of window of the year, um, and that makes it easier for the union to retain its current membership.

Brian Anderson: I see. Now over the past 12 months or so, we've seen any number of strikes by teachers, walk-outs by public school teachers across the country. That's been in LA, Denver, West Virginia. What do you, what you think is going on there and does the Janus decision have something to do with this, uh, this push?

Daniel DiSalvo: In most,

Brian Anderson: What are the teachers looking for?

Daniel DiSalvo: In most of the cases the teachers I think are looking for the traditional things that caused strikes. The teachers themselves are interested in better pay, better benefits, improved working conditions, um, that is material goods. I think in many of the strike cases, especially in what was called the red states, West Virginia and the number of the state, Arizona that were not strong union states to begin with and didn't allow agency fees, weren't affected by the Janus decision, um, I don't think those strikes are much connected to the Janus decision. The Los Angeles case and um, perhaps a little bit, the Denver case are maybe a little bit different. Um, some interpretations of the Los Angeles strike was that this was partly an action, um, to increase solidarity and union organizing through mobilizing everyone through a strike, that would be, it would enhance membership, because ultimately the strike didn't end with, uh, the union winning any more than was really on the table much more than was on the table in the beginning.

Brian Anderson: It seems to be a pattern though that's being replicated from state to state. The, the, you know, so we are seeing a kind of sequential series of these walkouts and strikes.

Daniel DiSalvo: I think that the deeper underlying issue here is that while education spending by in states and localities has been increasing over the last two decades, what people haven't looked at is where the money is actually going and it's been much going to pay off a longer term commitments for retire retiree healthcare and pensions.

Brian Anderson: So current teachers aren't really making this in, in salary, a lot of the money's going to...

Daniel DiSalvo:  going elsewhere and they're getting squeezed out. And I think that's what seems like, Hey, we're not, we're not, we're not getting up to, uh, any of these benefits and, um, and that's what's prompting the strikes.

Brian Anderson: What, um, what do you think the next big legal battle is going to be in this public sector union space?

Daniel DiSalvo: Well, there's a number

Brian Anderson: If there's any.

Daniel DiSalvo: Yeah, I think there's, there's a few big legal contests or skirmishes already starting. One is just lawsuits contesting for example, the windows laws as whether those are actually Constitutional or not. There's also a whole spate of lawsuits in Federal Courts seeking what are called retroactive refunds, which is to say, um, because the Supreme Court decision in a sense doesn't overturn the law, but announces the true law is, are the constitutional violations, the agency fees that were collected back 2, 3 years into the past, should those monies be reimbursed to the people who they were taken from since their Constitutional rights were being violated? So that these, an effort to recoup those monies, which would obviously hit the unions heavily, is afoot. There's much legal debate as to whether these, the suits will gain any traction perhaps before the Supreme Court. And then last, there's a set of cases. One has already, uh, been petitioned to the Supreme Court over whether unions should maintain or can maintain the Constitutionality of what's called exclusive representation, which is where the union represents all workers in a given bargaining unit, whether or not they're union members.

Brian Anderson: Thanks Dan. That's a very, very clear overview of where we are on all of those issues. Don't forget to check out Dan DiSalvo's work on our website, www.city-journal.org. We'll link to his report on the 10 Blocks podcast page, and you can follow him on Twitter @DiSalvoCCNY. We'd also love to hear your comments about today's episode on Twitter @CityJournal. Lastly, if you like our show and do want to hear more, please leave ratings and reviews on iTunes. Thanks for listening and thanks Dan for joining us.

Photo by Drew Angerer / Getty Images

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