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Acton Commentary

Janus v. AFSCME: Political freedom for public employees

If most Americans were told they were required to contribute to a political organization to keep their job they would be astonished and probably outraged.  Yet for more than 40 years that has been the law for public employees in 22 states and several territories.  That requirement ended when the Supreme Court issued its 5-4 decision in Janus v. American Federation of State, County and Municipal Employees on June 27. Janus was one of the most watched decisions of the Supreme Court term although the result had been foreshadowed for at least a decade.

The plaintiff, Mark Janus, a public employee in Illinois, argued that agency fees, which unions charge nonmembers, ostensibly for representing them in collective bargaining, essentially forced him to support the union’s political advocacy.  He said such a compulsion violated his First Amendment rights.  The Supreme Court agreed and reversed its earlier decision in Abood v.  Detroit Board of Education.

Decided in 1977 when public employee unions were relatively new, the Abood decision, citing no actual evidence and relying on an untested assumption, justified forcing nonmember employees to subsidize objectionable political activity with a two-pronged rationale.  First, the court surmised exclusive representation and agency fees must rise or fall together.  Without these fair share fees, labor peace would be disrupted.  Second, since unions must represent all members of the bargaining unit, agency fees were needed to avoid the risk of free riders.    

More than 40 years later, in Janus, the Court acknowledged both factual and legal developments had eroded Abood’s analysis.  Exclusive representation and agency fees are not inextricably linked.  Even if labor peace amounts to a compelling state interest, fears of conflict and disruption were unfounded as the experience of 28 other jurisdictions and the federal government amply demonstrates.  Labor peace can readily be achieved through less restrictive means.

Moreover, avoiding free riders is not a compelling state interest and free rider arguments are generally insufficient to overcome First Amendment objections.  “[T]he first Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.”  In short, “[c]ompelled subsidization of private speech” impinges so seriously on First Amendment rights, “it cannot be casually allowed.”  According to Justice Alito, the collection of agency fees “violates the free speech rights of non-members by forcing them to subsidize private speech on matters of substantial public concern.”  

Because the budget determines all governmental priorities and implicates future burdens on taxpayers, a public union’s collective bargaining activity is inherently political.  Negotiations about public employee pay, benefits, and pensions are political questions about how to spend tax dollars and provide services.  Thus, collective bargaining in the public sector is indistinguishable from lobbying by any other special interest group.

Unions ostensibly offered dissenting workers a process for opting-out and recovering the portion of agency fees devoted to objectionable political activity.  However, as the majority opinion conceded, the solution was “daunting,” and “expensive,” and has proved practically “unworkable.”  It not only put the onus on dissenting workers to protect their constitutional rights; it left the classification of chargeable and non-chargeable expenses entirely to the union.  The line between political and nonpolitical expenses proved impossible to draw with any precision and, as both sides acknowledge, in public sector bargaining the line is virtually nonexistent.    

Under the new rules articulated in Janus, employees will have to opt-in.  “Neither an agency fee nor any other payment may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee consents to pay.”    

The decision in Janus is obviously a victory for public employees who have complained for years about the unfairness of agency fees.  It may be a boon to beleaguered taxpayers. It could be a win for unions too -- if it forces unions to focus on providing excellent service to members instead of trying to extract maximum tribute for political patronage.  Mark Janus objected to being called a free-rider.  He was not refusing to pay for hitching a ride to a place he wanted to go; instead, he said, he was “more like a person shanghaied for an unwanted voyage.”

Unions still have options.  One of them might be to pay closer attention to the desired destinations of nonmembers; another would be to create members-only unions.  All Janus does is require incentives rather than force.


The Honorable Janice Rogers Brown is a former United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit. She spoke at Acton University in June.