Mackinac Center Files Amicus in Pivotal Right-to-Work Case

Janus v. AFSCME could extend freedom of association to all public workers

Thursday, December 7, 2017

Patrick Wright
Vice President for Legal Affairs
(989) 698-1933

MIDLAND — The Mackinac Center Legal Foundation has submitted an amicus curiae, or friend of the court, brief in the U.S. Supreme Court case Janus v. AFSCME. It urges the court to extend right-to-work freedoms to all public employees in the country.

The major issue in the case is free speech. The Supreme Court decided in 1977 that public sector unions in non-right-to-work states could have nonmembers fired if they failed to pay an “agency fee” to the union. At that time, the Supreme Court believed that union spending on politics could be bifurcated from spending on representational activity. Government unions were required to indicate what portion of their spending went to representation expenses, and they were allowed to charge nonmembers an agency fee equal to that proportional amount of full dues.

“The problem is when a union is bargaining with the government, everything it does is political,” said Patrick Wright, vice president for legal affairs at the Mackinac Center. “So even requiring a worker to pay for collective bargaining is really a form of forced political speech.”

The Mackinac Center’s amicus brief focuses on another issue surrounding agency fees. In previous decisions, justices have argued that eliminating agency fees would leave unions without enough money to effectively represent workers at the bargaining table.

“Right-to-work functionally stopped agency fee payments in Michigan, but we haven’t seen a large-scale collapse of unions due to a lack of funds,” Wright said. “We were curious to see whether this would hold true in other states, and it does.”

The amicus brief includes extensive research into the membership and activities of public sector unions across all 50 states. Even in cases where a very small portion of workers in a bargaining unit pay dues, unions have survived and bargained with government employers — some for decades.

“We found several cases across the country where unions continue to bargain despite fewer than 10 percent of covered workers paying dues,” Wright said. “If it is truly impossible to bargain without a contribution from all represented workers, these arrangements would not exist.”

“Based on results from Michigan, we generally expect around 20 to 25 percent of workers to resign from union membership if the Supreme Court decides in favor of Janus,” said Wright. “But the numbers show that unions should still have plenty of money to bargain even if workers resign at higher rates.”

The amicus brief also discusses Michigan’s recent experience becoming a right-to-work state. This will help inform the court about the appropriate scope of a ruling necessary to protect workers who wish to exercise the First Amendment rights the Janus decision could establish.

In Michigan, lack of clarity about implementation of the new right-to-work law led to the state’s largest government union — the Michigan Education Association — sending thousands of school employees to collection agencies, damaging these individuals’ credit. A clear decision is needed from the Supreme Court to prevent this type of thing happening to the 4.8 million public employees who would be affected by the Janus ruling.

The Janus case will be argued at the Supreme Court in February and a decision is expected in June 2018.

Visit for more information on Janus v. AFSCME. Click here to read the Mackinac Center’s amicus brief and click here to read the appendix.

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