More than 40 years ago, in Abood v. Detroit Board of Education, the Supreme Court held that fair-share fee requirements for public employees did not violate the First Amendment as long as those fees were used only to cover costs associated with collective bargaining and not for political campaigns or partisan activities. But by a narrow 5–4 margin on Wednesday, the court sent Abood to the dustbin, relying on the same “money is speech” logic that animated the controversial Citizens United decision. Fair-share fee arrangements violate the First Amendment, Justice Samuel Alito wrote for the majority, because they “requir[e] that all employees subsidize speech with which they may not agree.” This means state and local governments no longer can compel their employees to pay fair-share fees out of their own pockets.

The ramifications for public sector unions could be devastating. As Justice Elena Kagan said in a stinging dissent joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, Janus “wreaks havoc on entrenched legislative and contractual arrangements” in the 22 states, plus the District of Columbia and Puerto Rico, where fair-share fee arrangements are now in place. The decision, in her words, “creates a collective action problem of nightmarish proportions”: Because unions must represent nonmembers and members alike, many employees will decide that they don’t want to contribute to the cost of collective bargaining. The nation’s top economists agree: As three Nobel laureates explained in an amicus brief, the end of fair-share fee laws will allow for rampant “free-riding” in unionized workplaces. Indeed, we already see this very phenomenon in the states that don’t allow for fair-share fees: Free-rider rates are higher than 70 percent in some workplaces, and unions on the whole are much weaker as a result.

Yet the end of fair-share fee laws need not mean the demise of public sector unions in the states where those unions have so far stayed strong. As Justice Kagan notes, “State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces.” One such solution is at the ready: States can replace their fair-share fee laws with provisions that require or allow public sector employers to subsidize unions directly. While Wednesday’s ruling stops state and local governments from requiring their employees to make payments to unions out of those workers’ own pockets, it does not prevent state and local governments from supporting unions themselves. By supporting public sector unions directly, state and local governments can address the free-rider problem just as effectively as they could pre-Janus—and at no additional cost to their taxpayers—all while adhering to the Supreme Court’s constitutional pronouncements.

Read more at Slate