Agency Fees in the Mirror of Liberalism's Contradictions

Although rights of expression, undergirded by freedoms of thought and conscience, neither entirely exclude nor inviolably privilege arguments against compelled subsidies, it appears that the constitutionality of the use of agency-shop fees for union political activities is an issue of particular sensitivity. The Supreme Court, in reliance on its decision in Abood v. Detroit Board of Education, has maintained that agency fee regimes are constitutionally permissible. The Court’s more than forty-year-old conviction regarding the legitimacy of agency fees in the public sector, in combination with applicable state law, has permitted labor unions to serve as the exclusive bargaining representative; therefore, labor organizations could demand that nonmembers pay fees to public sector labor unions. That is, until, the Court’s recent Janus v. AFSCME decision, holding that forced subsidization — regardless of the public sector union’s purpose — violates the free speech rights of employees who choose not to join a union. Whether the underlying logic of its decision is electrifying or inconsequential, the Court allowed the axe to fall on the practice of using other people’s money to advance the ideological interests of groups or individuals, whose preferences are at variance with the preferences of union dues objectors. Showing that the Supreme Court’s public sector analysis cannot be fully separated from its private sector origins, this article examines the defensibility of agency fees and answers four questions. First, I consider whether the Janus case was correctly decided. The answer to this question depends on the defensibility and scope of Abood. Second, I ask this question: can compulsory union dues regimes be justified within liberalism’s, often contradictory framework, irrespective of the merits or demerits of Janus? Third, answers to the first and second questions have implications for whether doubts regarding the legitimacy of agency fee/union security regimes in the public sector can be extended to private sector agency fee cases. Fourth, given the authoritarianism embedded in liberalism, and given modern liberalism’s contradictions, can Janus survive the state’s thirst for control? This installment offers a comprehensive answer to the first question only while supplying speculative answers to the last three questions. While it may be increasingly doubtful that any form of compulsory unionism can be justified inside of a liberal society that is currently unraveling, it is equally true that moves by nonmembers to disaffiliate will provoke a conservative reaction. Understanding this response provides a basis for a broader discussion because this conservative reaction is tied to the authority issuing forth from America’s new aristocracy (liberalocracy) comprised of globalized elites. These elites, decry tradition, custom and genuinely shared values sufficient to sustain the republic and who simultaneously support an expanding framework for control by experts. While confusion reigns regarding how to properly define liberalism, it is possible that the move toward a liberal consensus supporting unconstrained autonomy has paradoxically released conservative/reactionary forces; this signifies that liberalism and its gifts have been transmuted into a profoundly illiberal, repressive force — even though or precisely because it grants the autonomous individual wide berth to define what is good and true. This liberal/conservative move poses a risk to a principled understanding of the First Amendment, which does not necessarily command respect from our incipient liberalocracy. Liberalocrats are instead drawn to the exercise of power to limit disaffiliation. Liberalocracy’s pursuit of heteronomy, places the permanence of the Janus decision in doubt.