The U.S. Supreme Court announced Thursday it will consider Illinois’ “fair-share” case, Janus v. AFSCME. The suit, brought by state employee Mark Janus, is likely to trigger an overturn of a 40-year-old labor ruling, Abood v. Detroit Board of Education, and kneecap public sector unions–the most heavily-organized sector of the American workforce.

While the court may not rule on the case until spring, labor organizers in Illinois are already preparing for the worst. A similar case before the court, Friedrichs vs. the California Teachers Association, resulted in a 4-4 stalemate after the death of conservative Justice Antonin Scalia, but not before provoking the ire of the court’s only swing vote, Justice Anthony Kennedy. The new court includes Justice Neil Gorsuch, whose seat on the bench is even further right than Scalia’s was, and whose long background in corporate defense is punctuated by controversial cases.

The votes will ultimately decide whether union shops can continue to collect “fair-share” or agency fees from non-union members. Distinct from any union dues or political contributions, agency fees are the pro rata price every non-union worker pays to help defray the cost of the union-provided services they use and benefit from. Since unions have a legal obligation to fairly represent members and non-members alike, the union has to pay the cost to provide the service regardless. An elimination of agency fees creates a problem of “free riders” who don’t pay their fair share, which may happen nationally if Abood is overturned.

Non-union workers like Mark Janus benefit from these union-provided services when they step into jobs where unions have secured a suite of competitive insurance benefits, pension contracts, and higher than average wages for the workforce. In Janus’ case, that means making $71,000 a year as a child advocate at the Illinois Department of Healthcare and Family Services, despite the median national salary for such a position being approximately $46,000.

Janus, however, does not believe he has benefitted from these services. On Thursday he wrote, “When I was hired by the state of Illinois, no one asked if I wanted a union to represent me. I only found out the union was involved when money for the union started coming out of my paychecks. I don’t want to be associated with a union that claims to represent my interests and me when it really doesn’t.”

Janus’ case started life as Governor Bruce Rauner’s case. Rauner sued AFSCME in an attempt to enforce Executive Order 2015-13, which would have cut the union’s ability to collect agency fees. On March 1 of this year the U.S. 7th Circuit Court of Appeals cited Abood when it kicked Rauner out of the case for having no standing, paving the way for the Janus to take the role of plaintiff and for a U.S. Supreme Court appeal. Rauner is still stuck in a court battle with AFSCME on a separate case, by which he seeks to freeze all state worker pay for four years and start outsourcing government jobs.

[7th Circuit Court of Appeals ruling]

Facing the Supreme Court’s 5-4 balance and four prior decisions indicating the court’s sentiment against fair-share fees, many union leaders now believe it is no longer a matter of whether Abood will be overruled, but when.

In his oral arguments at the appellate court, AFSCME President Lee Saunders said, “It is clear that the corporate CEOs and wealthy special interests behind this case will stop at nothing to make it harder for public service workers to speak up together for better public services, stronger communities, and wages and protections that benefit all Americans.”

Janus’ attorneys filed a Supreme Court petition in June under the patronage of the Koch-funded Right to Work Foundation and Liberty Justice Center. The latter is the legal arm of the Illinois Policy Institute, which provided the Rauner administration a pool of workers shortly after the lower court’s decision.

While the administration is no longer party to the litigation, Rauner commented Thursday on
Janus’ advancement. In a release he said: “No person should be forced to give up a portion of their pay each month to fund public sector union activity against their will…It’s a fundamental violation of their First Amendment right to free speech and association. I am hopeful the Court will see it that way in the end.”

Jacob Huebert, director of litigation at the Liberty Justice Center, followed suit shortly after, releasing a statement echoing Rauner’s First Amendment rhetoric.  

“Right now, public sector employees in Illinois and many other states aren’t given a choice: They’re automatically forced to give their money to a union. Every public sector employee in the U.S. should be free to choose whether to pay money to the union at his or her workplace,” he wrote. “Janus v. AFSCME presents an opportunity to restore fairness and First Amendment rights to millions of American workers by giving them the right to choose whether to support a union with their money.”

In his Thursday statement President of the National Right to Work Legal Defense Foundation, Mark Mix, further attempted to intertwine free speech arguments with the plaintiff’s cause, adding “As the court noted in the National Right to Work Foundation’s landmark Knox v. SEIU victory, compelled speech under the guise of forced union dues is an ‘anomaly’ under the First Amendment. We are hopeful that by the end of this Supreme Court term, the high court will finally end this anomaly and fully protect the First Amendment rights of public sector workers against an injustice that has existed for over half a century.”

The word choice is no coincidence. The Koch-funded State Policy Network–of which the Illinois Policy Institute is a funded member–was exposed by the Guardian last month for coordinating with the case’s patrons to intentionally bust public sector unions. Part of their strategy includes conflating agency fees with forced union dues in public discourse. The tactic has been fairly successful.

The second part of the strategy boils down to a novel First Amendment argument: Because Citizens United established a precedent that money is speech, and because the First Amendment forbids the government to compel speech, the government cannot compel its employees to pay their share of the bills for union-provided services. In Janus’ instance, roughly $500 a year.

The crux of the argument is not that union agency fees are being used to fund political candidates or causes–a practice that Abood did much to end and which a separate 1988 ruling ultimately killed–but that any worker wages paid with government money should be inherently classified as political speech.

The Current Landscape

Why are public workers such a target for Koch-funded organizations, and what puts Illinois in the center of that target?

While national private sector unionization has dropped to about 6%, public sector workers are still unionized at a rate of 34%. In Illinois, those number are even higher: Half of all public sector workers are unionized and that number has grown 5.5% over the last decade. Even as the combined public-private national unionization rates have fallen, Illinois maintained a 15.6% unionization rate, 4% higher than the national 11.6%. Local government workers go even further, with nearly 6-in-10 Illinois local government workers in unions. Likewise, 28.3% of federal workers in Illinois are unionized.

Worth noting also are the demographics of Illinois unions. Military veterans make up the largest portion. African American workers are statistically the most likely racial or ethnic group to be union members, both nationally and in Illinois.

When it comes to political donations, only 2% of all membership dues and fees collected by labor organizations in Illinois are spent on political activities and lobbying, or about $6.62 annually per member. Meanwhile, labor unions in Illinois spend 77 percent of dues and fees on bargaining and representation for workers. AFSCME Council 31 goes even further: about 87% of their funds are spent on representing workers. AFSCME’s political donations, which come from a separate political PAC, work out to about $25 per member annually. And those $25 don’t come from non-union workers like Janus.  

After the University of Illinois and the Illinois Economic Policy Institute analyzed of 744,439 Form LM-2 reports, required for all labor unions that represent private sector employees, filed in FY2014 they found the average union member contributes $663 in annual dues, fees, and other membership payments in Illinois to labor union locals– about $55 per month.

Against the backdrop of this economic output, AFSCME Council 31 Executive Director Roberta Lynch says anti-union organizations are out to tilt the field. In a Thursday release she said, “The forces behind this case know that by joining together in strong unions, working people have the voice they need to level the economic and political playing field.”

The same message came from AFSCME President Lee Saunders who seemed optimistic about Janus’ outcome, and called the case, “yet another example of corporate interests using their power and influence to launch a political attack on working people and rig the rules of the economy in their own favor.”

“When working people are able to join strong unions, they have the strength in numbers they need to fight for the freedoms they deserve, like access to quality health care, retirement security and time off work to care for a loved one. The merits of the case, and 40 years of Supreme Court precedent and sound law, are on our side. We look forward to the Supreme Court honoring its earlier rulings,” said Saunders.

The Look Ahead

If Saunders is wrong and agency fees are removed from their revenues, public unions may soon find themselves without the dollars necessary to fulfill their legal duty to fair representation, and unable to afford costly litigation to secure better working conditions for their shops. With the likelihood of Abood’s overturn hanging above AFSCME’s head, what can the group do to recover from such a blow?  

“I certainly don’t think you can wait and look at it as recovery,” said Anders Lindall, communications director for Illinois’ AFSCME Council 31. Lindall has been marching in front of cameras and fielding calls about the case since its first rumblings. The preparation, he said, has been ongoing.  

“I think every public service union–not only AFSCME in Illinois and other states but every union in the public service–is talking to their members, educating folks, making sure they understand what this case is really all about. Who is behind it. Who is pulling the strings here. Who will benefit, and who will be hammered. So that if the Trump court does gut the Abood precedent folks in our membership are prepared and know what’s coming at them,” he said.

Some may find it difficult to share Lindall and Saunders’ optimism. The spread of Right to Work states, which have barred the collection of agency fees, now seems inevitable to many. What advantages do Illinois unions have in the post-Abood labor landscape?

“One advantage that we have has been a double edged sword. It has been our great challenge of the last couple of years, but in this case it’s an advantage. It’s that I think every AFSCME member in Illinois knows better than anybody else in America what Bruce Rauner is really all about. And that Bruce Rauner really doesn’t have their best interests in mind, that Rauner is about creating chaos, silencing workers, wiping out the labor movement, and gaining more power and influence for himself and his corporate cronies,” said Lindall.

From an election standpoint, it appears labor is starting to realize it does a better job if it runs its own people for elections and talks to its own people on the campaign trail. It allows them to bridge the partisan divide among working class and rural voters which has recently been used to the advantage of anti-union groups.

Lindall sees advantages as well among public sentiment, he said. “When you break it down by age the younger folks are, the stronger their approval of unions will be.”

A recent Gallup poll stands behind his theory. It measured U.S. approval of unions at a 14-year high, with 61% of Americans surveyed saying they support unions. The sharp increase was most notable among Republicans, whose favorable opinion of unions increased 10% over a single year to 42%, thought to be spurred by President Donald Trump’s election.

Further Gallup measurements indicate 39% of Americans want unions have more influence, which Gallup says is the highest recorded figure in the 18 years it has asked this question. Meanwhile, the number of people who want unions to have less power is at an all-time low, 28%.  

Despite criticism from Koch groups that labor unions in Illinois have too much political influence, the non-agency dollars that unions spend on political campaigns amounted to only about 10%, or $30.7 million dollars, of the overall $309.6 million spent during Illinois 2014 state and local elections. According to a 2016 study from the University of Illinois at Urbana-Champaign, more spending came from large individual donors and self-financed candidates who contributed 18%, or $54.4 million.   

But AFSCME surplus political coffers have extended a recent push. Candidate endorsements are beginning to emerge and overall more union-affiliated candidates are running. Building trades have done well getting their own members elected. Rep. Lawrence Walsh (D-Joliet) is a member of the International Machinist and Aerospace Workers Union. Rep. Bob Rita (D-Blue Island) is an operating engineer and a member of Local #150. Rep. Anthony Deluca (D-Chicago Heights) is a dues paying member of the International Brotherhood of Teamsters Local 731. Even Sen. Neil Anderson, a Republican, is a firefighter. The argument for the return of labor in elected office is, at its core, an argument for the return of the citizen legislature.

There are other unique approaches being developed. In Illinois and elsewhere, the Service Employees International Union has begun making inroads into hospitals and private education institutions. At Northeastern Illinois University and the University of Chicago the group has been helping to organize adjuncts’ or doctors’ councils. All the while, SEIU Local 1 is leading one of the largest organizing campaigns in the country at O’Hare Airport.

The group is also a driving force for minimum wage increases in the Fight for 15 campaign, a tactic which further questions whether service sector economics in Illinois might not look wholly different through the lens of labor.

Is this growth spurt an opportunity for a short-term fix? Or do these agitations and public support numbers signal the development of a long-awaited return to labor power?

“The upside is that people are increasingly coming to see that there is another vision for America in that the chief proponents of fairer systems are the working people in their unions,” said Lindall.

“Although the threats are real and they are grave, the time is also ripe for resurgence.”