Janus v. Democracy

The Janus decision is a significant setback for democracy. What should public-sector workers do now?

Recent teachers’ uprisings—which took place in states like Arizona that already banned union fees—show workers take action whether their unions are well-funded or not (Gage Skidmore/Flickr)

Draining union finances will not be the most significant outcome of the Supreme Court’s decision in Janus v. AFSCME. It poses a serious threat to our democracy, which Trump and his right-wing enablers have already put in peril.

To be sure, Janus will hurt unions, as the anti-union Liberty Justice Center and the others who funded the plaintiff’s case intended. Today, nearly half of all union members work for a government, and the vast majority live in states where, prior to the Court’s decision, unions were able to collect representation fees from all those for whom they bargained. Anti-unionists are already encouraging those workers to opt out of paying fees. Worried unions with large public-sector memberships began cutting staff and budgets months ago, putting efforts like the fast food workers’ Fight for $15 on life support. As these cutbacks suggest, public-sector unions are not the only victims of Janus. It will further erode worker bargaining power in an economy where more than half the national income already goes to the top 10 percent of earners.

Yet Janus constitutes an even more significant setback—for democracy.

For most of the twentieth century, the advance of political democracy went hand in hand with efforts to make the workplace more democratic. Progressive Era reformers predicted that democracy would die in a world dominated by corporate behemoths unless workers secured industrial democracy in the workplace. In 1915, the chairman of the U.S. Commission on Industrial Relations warned that “Political freedom can exist only where there is industrial freedom; political democracy only where there is industrial democracy.”

New Dealers embraced that logic. When Senator Robert Wagner drafted the National Labor Relations Act in 1935, he believed collective bargaining was “at the heart of the struggle for the preservation of political as well as economic democracy in America.” That wisdom also guided those who extended union rights to government workers in the 1960s. Denying civil servants the right to bargain collectively was “more fitting to a benevolent despot than to the world’s greatest democracy,” as one reformer, Wilson R. Hart, put it.

The reasoning of these reformers was sound. As workplace democracy expanded, so did political democracy. Racial, age, gender, and income restrictions on the electorate all fell as collective bargaining spread.

Yet in the middle of the last century, the tide began turning against the mutually reinforcing expansion of the two forms of democracy. In 1947, the Taft-Hartley Act empowered states to forbid union contracts whose beneficiaries bore the costs of representation equally. Today twenty-eight states have these misnamed “right-to-work” laws.

With Janus, the 5-4 right-wing majority on the Court has sought to turn that long war into a rout. As Justice Elena Kagan put it in her dissent, with Janus “that healthy—that democratic—debate” over the wisdom and justice of “right-to-work” laws “ends.” The court has ended it not by making all government workplaces “right-to-work”—even before Janus no government workers were required to join a union or pay dues. What it did was to turn the interdependent relationship between workplace and political democracy on its head. According to Justice Samuel Alito’s majority opinion, “public-sector agency-shop arrangements violate the First Amendment” because bargaining by government unions addresses “matters of public concern,” and is therefore political. He argues that majorities of government employees, no matter how lopsided, may not secure contracts whose beneficiaries share their costs, lest some workers’ free speech rights be infringed. It matters not to Alito and his colleagues that the “First Amendment was meant . . . not to undermine but to protect democratic governance,” as Kagan eloquently put it, and it matters even less that healthy democratic governance—in work relations no less than government—depends on systems of fair taxation.

Not coincidently, the same one-vote majority on the Court that just stripped workplace majorities of their rights recently approved assaults on democracy in the polling place. Earlier this month, in Husted v. A. Philip Randolph Institute, the right-wing justices green-lighted the tactics of Republican secretaries of state who have been purging registration rolls of qualified voters. Fittingly, the deciding vote in both of these anti-democratic decisions was cast by Justice Neil Gorsuch. He took a seat kept open by the Senate’s refusal to vote on an Obama nominee, and was appointed by a president who lost the popular vote in an election which he won with the help of a foreign power and a wayward FBI.

By squelching democracy both at the polls and in the workplace, the Court has sown a bitter wind. Recent uprisings by teachers in states like Oklahoma and West Virginia, which already banned union fees, suggest that it might one day reap a whirlwind.

As those inspiring walkouts showed, rampant injustice can rouse even formerly quiescent people to action—whether their unions are well-funded or not. If public-sector bargaining is simply a form of politics, as this court holds, teachers and other government workers should use their free speech rights to challenge any legal restrictions on what demands are legally permissible to make at the bargaining table. They should join with community allies and begin to use collective bargaining wherever it still exists to confront government policies that are privatizing and beggaring public services and further concentrating wealth at the top. Some unions have already begun doing this in an effort they call Bargaining for the Common Good. The Janus decision should give their initiative an urgent new impetus.

Their fight is the same one waged by our forebears who believed democracy in the workplace and in politics must either stand or fall together. As we come to grips with Janus, and the news that Justice Anthony Kennedy’s retirement will gift Donald Trump with the chance to cement this court’s anti-democratic majority in place for many years more, it is clear that the fight for democracy in the twenty-first century has suddenly become both more perilous and more necessary than ever.

Joseph A. McCartin (@josephmccartin) is a Professor of History at Georgetown University, where he directs the Kalmanovitz Initiative for Labor & the Working Poor.