Public employee unions differ from those representing private sector employees due to constitutional protections afforded to their members and potential members. For example, the U.S. Supreme Court held in 1977 that the First Amendment prohibits public sector unions from requiring non-member employees to pay dues used for political contribution purposes. On Wednesday, the court significantly expanded this concept, holding 5-4 that public employees’ freedom of association prohibits unions from exacting “fair share” payments from non-union members for other purposes.

In 23 states, public sector unions can charge “agency” fees to non-members in return for services such as negotiating collective bargaining agreements that apply to both union members and non-members. In Janus v. American Federation of State, County, and Municipal Employees, Council 31, the Supreme Court majority concluded that First Amendment protections extend to unions’ ability to charge fees to non-members for any purposes. The benefits provided to non-members from the union’s agency activities do not outweigh these constitutional protections. This decision overruled the portion of the 1977 case that drew a distinction between mandated contributions for political and non-political purposes.

This decision will likely exact a heavy cost from public unions. Without financial support from non-members, many unions in these states will have significantly fewer resources with which to operate. As a result, these unions may be considerably less effective when bargaining with state and municipal governments.