What’s the Compromise?

The editors of the Washington Post call for a compromise in Janus v. AFSCME:

THE SUPREME COURT heard arguments Monday in Janus v. American Federation of State, County and Municipal Employees, which presents the justices with two questions. The first is the legal issue in the case: whether governments may require public-sector workers to pay a fee to unions that represent them in collective bargaining, even if they disagree with the union on politics and other matters. The second, and broader, question is the implicit one of how the court should conduct judicial review in a deeply polarized society.

Few matters are more consequential, in partisan terms, than the flow of funds to public-sector unions, a key constituency of the Democratic Party. There are good-faith reasons to be concerned about the power of these unions; one of those reasons is whether compulsory collective-bargaining fees amount to compelled speech by employees in favor of unions, contrary to the First Amendment. Yet the fact is that the court decided those issues in a similar case 41 years ago, ruling that there was no constitutional violation given governments’ compelling interest in stable labor relations. Opponents of mandatory fees are asking the justices to overrule that long-established precedent, something they are usually loath to do, for good reason.

While I agree with those who point out that public employees’ unions are different from private sector unions, a distinction the editors don’t seem to recognize, but I agree with the editors that a compromise solution is available. Justice Breyer’s suggestion probably shows the general contours of the compromise:

Perhaps sensitive to that reality, Justice Stephen G. Breyer repeatedly suggested at oral argument that the court adopt a compromise — one that would not upset precedent but would update it, to take account of genuine First Amendment concerns related to public-sector collective bargaining. Specifically, Mr. Breyer asked attorneys for the contending parties for their views on a solution under which employees could be required to pay, but only for a narrow range of collective-bargaining duties as defined in state law, rather than for tangentially related matters, such as union conventions, for which unions have heretofore been permitted to charge.

It’s not completely unreasonable for the unions to collect representation and related fees but not nearly as reasonable to demand money to be paid out as political contributions. The unions should also be required to maintain books that maintain that distinction.