The sword hanging over the American labor movement has finally fallen. After years of near misses, the Supreme Court issued an opinion in Janus v. AFSCME that ruled it unconstitutional for public sector unions to agree with employers to collect agency fees from workers they represent but who refuse to join the union. This ruling overturned a forty-year-old precedent, Abood v. Detroit Board of Education, breaching the core legal principle that courts should be hesitant to reverse prior decisions.
While Justice Alito’s opinion for the Court is deeply flawed, and ignores the many ways the collection of agency fees could be squared with the First Amendment, it does get at a legitimate problem with one of the main conclusions of Abood: that a union’s collective bargaining and contract enforcement is somehow nonideological and distinct from a union’s “ideological” activity, such as involvement in elections. This line-drawing between a union’s “political” activity outside the workplace and “nonpolitical” activity within the workplace — a distinction that has been vociferously reinforced by Abood’s backers in both the labor movement and the judiciary — fundamentally undermines unions’ efficacy.
The labor movement’s insistence on upholding this distinction between “ideological” and “nonideological” union activities has dampened the development of class consciousness — and with it, the development of working-class power — in America’s unions. Ironically, this has created a labor movement that, when the knives came out, was too weak to stop Janus.
Justice Kagan rests her dissent in Janus, and with it her defense of Abood, on this distinction. She notes that the core of Abood was the holding that “[o]n the one hand, employees could be required to pay fees to support the union in collective bargaining, contract administration, and grievance adjustment … [b]ut on the other hand, employees could not be compelled to fund the union’s political and ideological activities.” Kagan insists that the division is clear: “everyone knows the difference between politicking and collective bargaining.”
Justice Alito vehemently disagrees. Noting that determining the wages, benefits, and conditions for public sector workers are a crucial part of what state and municipal governments do, Alito accuses Kagan of denying “reality” and “the obvious”: no such distinction between unions’ “political” and “nonpolitical” activity is tenable.
He drives home the point, arguing that, while a single worker asking for a 5 percent raise would simply be a private matter, “a public-sector union’s demand for a 5% raise for the many thousands of employees it represents would be another matter entirely … [w]hen a large number of employees speak through their union, the category of speech that is of public concern is greatly enlarged.” Such a line could have come from the mouth of a union organizer.
Awful as Alito is, he’s not wrong here.
The Abood court’s insistence on a vast divide between a union’s ideological, “political” work outside bargaining and its “nonpolitical” work of bargaining and enforcing contracts has made little sense from the beginning. Even the Abood court grudgingly admitted that the work of public sector unions is political, dismissing it as a “truism” that didn’t fully capture the nuances of the work of public sector unionism.
But the Janus majority, whose analysis distinguishes between public and private sector workers, doesn’t go far enough: when functioning properly, unions are ideological entities, and all of their work is ideological work. The act of workers asserting control over their own workplaces has more ideological valence than do most electoral campaigns that unions back.
This is not the only place in labor law where the distinction between ideological and nonideological activity is drawn. The Taft–Hartley Act’s ban on calling for a boycott of a secondary employer has been held constitutional, despite clear Supreme Court precedent saying that boycotts are a form of constitutionally protected speech, based on a similar distinction between the political and the economic. But the reality of their inseparability, of the nonsensical line drawn by the Abood Court, has only been whispered by many in the labor left up to this point, for fear of endangering agency-fee arrangements.
While the ideological distinction seems alien to many in the labor left, many in the upper echelons of union leadership were comfortable with the division and its reinforcement of a depoliticized workplace. This separation between “political” activity and the work of collective bargaining did not begin with Abood. It can be traced back to the Treaty of Detroit, when the UAW agreed to abandon militant shop-floor action in exchange for substantial, regular increases in wages and benefits. Unions contented themselves with bargaining “bread and butter” issues in relative isolation from the broader political context, and limited their “ideological” activity to playing a major role in the workings of the Democratic Party.
By the time the Court issued Abood in 1977, many union leaders were happy to simply enshrine in law the hard distinction between their ideological work outside the shop and their nonideological work inside the shop in exchange for the security of agency-fee agreements. In the years since, and particularly the six years since Alito invited challenges to Abood, most unions have readily reinforced this distinction through their own work within and beyond the workplace. Unions have, by and large, downplayed any political or ideological aspect to their organizing in workplaces while leaning into a political project focused on getting Democrats, any Democrats, elected to office.
For those in charge of unions, Abood’s enforced depoliticization of the workplace was a welcome edict that fit into their preexisting notion of what their work as labor leaders should look like.
The irony of unions’ efforts to depoliticize the workplace, in line with Abood’s vision but alien to the experiences of most workers, is that they have hamstrung unions from building the power necessary both to resist Janus and to thrive in its aftermath. Downplaying the political aspects of workplace struggle detaches workers’ lived experience from any structural analysis of class relationships between workers and bosses.
Unions’ insistence that workplace organizing is not political bleaches any class content from their campaigns and inhibits the growth of class consciousness among their members. It instead instills in union members a sense that their relationship with their union is simply economic and transactional.
Divorced of political content, what’s left of a union but to provide services to members? Workers who see their union the way they see their insurance are unlikely be organized around its protection or preservation.
If workers instead see their union as a political entity, advancing an ideological project of worker power and working-class control of the economy, they will be much more likely to identify with and invest their time in advancing that project, both within and beyond their workplace. They will be able to connect the daily frustrations of work to a broader structural analysis and combat those frustrations, recognizing them as one front in a larger conflict.
Despite many unions’ implicit acceptance of Abood’s depoliticized vision of the workplace, despite their efforts to limit militant workplace actions, despite dutifully working to elect Democrats, Janus has arrived. The American labor movement has been dealt a punishing blow, but not a fatal one. Unions must take Justice Alito at his word: unions are political entities. They must bring a political analysis to organizing and bargaining — an analysis that heightens class consciousness among members and helps the working class become a class for itself.