As Dan DiSalvo notes below, the Supreme Court heard arguments in Harris v. Quinn, in which several home health care workers in Illinois who have refused to join the Service Employees International Union object to being forced to pay a so-called “agency fee” to the union for representation. As Dan’s analysis and this one on Scotusblog make clear, the case raises some important constitutional issues.

But what also interests me and, I think, has political implications for the future of these arrangements, is a significant  issue not being argued as central in this case. Even when governments allow a union to collect fees from non-members for representation, who gets to decide just how much that fee should be? Unions often claim they are spending far more on core representation issues than some members and many non-members believe, and therefore unions often argue they are entitled to substantial fees.

This is an issue which is the heart of another case working its way through U.S. district court in California, where a handful of educators are suing the California Teachers Association (CTA) and teacher union locals throughout the state.

Like Harris v. Quinn, the plaintiffs claim that the state’s agency-shop arrangement, which forces them to pay fees to the union representing their local bargaining unit, violates their First Amendment rights by requiring them to pay up and then declare that they are opting out of the union in order to receive a rebate on the portion of dues that the union doesn’t spend on representing workers.

But there is something greater at stake, too. California, the plaintiffs argue, has stacked the deck against non-members by allowing the unions to determine how much they are spending on representing workers.

The suit argues that the agency fees set by unions based on their own accounting  are far greater than actual union spending on member representation. As the suit describes the process:

For each school district in which plaintiffs are employed, the“chargeable” and “non chargeable” portions of the agency fees are calculated based on an audit of the union expenditures in a recent year. The auditors confirm that the union expenditures were made as indicated, but do not confirm that the union has properly classified the expenditures…[unions often classify] expenditures as being “chargeable” and thus germane to collective bargaining—even when those expenditures appear to have little to do with collective bargaining.

What are some activities that teachers’ unions in California, including the CTA, or the national teachers’ union, the NEA (to which agency shop fees also flow), consider as representing teachers on workplace issues, and therefore supported by agency fees?

  1. CTA classified its expenditures on “Human Rights Programs” as being 100% chargeable.
  2. CTA classified a “GLBT Conference” as being 71.3% chargeable.
  3. CTA also deems publication and dissemination of its internal magazine, The California Educator, to be 78.4% chargeable.
  4. Conferences for NEA staff [are deemed] to be 100% chargeable.

One result of this accounting is that agency fees in California for teachers amount to 65 percent of union dues, roughly about $650 a year.

This is a significant issue because even union members have begun to wonder whether they are getting their money’s worth from dues, especially as the range of activities that government unions support with members money drifts further and further from simple worker representation.

A Harris Interactive poll in 2011, for instance, found that 47 percent of respondents from union households now question whether members are getting value for their dues, and 62 percent of Americans generally feel the same way.

Exacerbating this are some startling revelations about how unions spend members’ money. In particular it seems as if government unions are devoting more dollars to bolster allies in their left-leaning coalition rather than on worker issues. As I wrote back in 2011:

When the administration of George W. Bush began requiring unions to file more extensive disclosure forms detailing how they spent dues, the documents revealed, for instance, that the NEA was using dues money to fund groups like the Gay and Lesbian Alliance Against Defamation, Jesse Jackson’s Rainbow Push Coalition, and Amnesty International.

As union spending branches out in support of a broader left-leaning Democratic coalition, the whole issue of agency fees becomes more politically explosive. While some of those who opt out of union dues simply don’t want to pay the hefty cost of membership, (teacher union dues in California average about $1,000 annually), others object to union leader political leanings and to the way union leadership spends members’ money on issues that members themselves may object to.

This makes it likely that unless the Supreme Court in Harris v. Quinn issues a broad, precedent-setting ruling that completely sets aside the justification for agency fees in the public sector, these fees will generate more lawsuits and more political controversy.

Back in Illinois the agency-fee issue seems especially crucial to the survival of the SEIU local at the heart of Harris v. Quinn. According to an examination of union filings, of the more than 93,000 health care employees working in jobs covered by the union’s collective bargaining agreements, more than 37,000 have chosen to opt out of the union and pay the agency fee. Clearly there’s a lot of discontent there.

Cross-posted at Public Sector Inc.