May 17, 2019
By Jacob Huebert

In last year’s Janus v. AFSCME decision, the Supreme Court ruled that governments can’t make their employees pay fees to a union. As a result, some five million government employees across 22 states who had been forced to pay fees now have the freedom to choose which private organizations’ political advocacy they will and won’t support with their money, just like the rest of us.

But although those government workers no longer have to pay fees, unions in those 22 states still act as workers’ “exclusive representative” in collective bargaining. In other words, the law still authorizes public-sector unions to speak for all unionized government workers—even if some workers who aren’t union members would rather speak for themselves.

As Justice Alito’s opinion in Janus recognized, foisting an “exclusive representative” on government workers to speak on their behalf is “a significant impingement on associational freedoms that would not be tolerated in other contexts.” Therefore, since Janus, numerous lawsuits across the country have been asking federal courts to end unions’ power of exclusive representation for violating workers’ First Amendment right to freedom of association.

Two of those cases recently arrived at the Supreme Court, supported by amicus briefs from the Goldwater Institute. But the Court declined to take up the issue—for now.

In Bierman v. Walz (formerly Bierman v. Dayton), eight Minnesota parents who receive financial assistance through a state-run Medicaid program to take care of their severely disabled children—but aren’t government employees—challenged a state law that authorizes a union to act as their exclusive representative. Even if the government may appoint an exclusive representative to speak for its employees, they argued, surely it can’t appoint representatives to speak for citizens who aren’t even government employees. To do so turns our system of government—in which the people are supposed to choose their own representatives—on its head.

In Uradnik v. Inter Faculty Organization, a public university professor, also in Minnesota, objected to a state law that authorizes a union to speak as her exclusive representative, even though she disagrees with many positions the union takes and would prefer to speak for herself. If the Court had taken her case, it could have ended exclusive representation for all public employees nationwide.

In both cases, the Goldwater Institute’s briefs explained how public-sector unions are like the “factions” the founders sought to constrain when they designed the Constitution–and how unions’ special legal privileges, including their power of exclusive representation, make them especially dangerous and undermine our republican system of government. Because of their unique privileges, public-sector unions in many places have not been reined in by the majority or counteracted by the other factions competing for power, as the Founders expected that factions would be. That’s one reason why salaries and pension benefits demanded by unions now overwhelm the budgets of many state and local governments where public-sector unions are influential.

Fortunately, Bierman and Uradnik are not the end of the road for this issue; the fight to end exclusive representation is far from over. The justices might think the issue is important—as they suggested in Janus—but could have had reasons why they believed these were not the right cases at the right time. For example, Uradnik was an appeal from a denial of a preliminary injunction, which is not ideal for Supreme Court review. After the lower courts issue their final decisions in the case, the Supreme Court could still take it up. Or it could take up one of the many others that are on the way.

As those cases arrive at the Supreme Court, the Goldwater Institute will continue to remind the justices and the public that ending exclusive representation is important, both to protect workers’ First Amendment rights and to ensure that special privileges don’t give unions undue power and influence over the government.

Jacob Huebert is a Senior Attorney at the Goldwater Institute. He was part of the team that litigated Janus v. AFSCME.

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