by Timothy Sandefur
June 27, 2018
Today’s long-anticipated decision in the Janus case vindicates a principle that’s long been spoken of in First Amendment law, although not always consistently applied: when free speech rights are at stake, the thumb needs to be on the scale of freedom, not government restrictions. Although the Janus case will likely be labeled as an attack on unions, the decision is actually a reminder that freedom of speech belongs to individuals, not to groups, and that each person should have the right to decide for himself or herself whether to support political activism—instead of being forced to do so.
The issue involves laws that let unions deduct money directly from workers’ paychecks to support union activities. The Court has ruled that such laws are constitutional—but also that workers can’t be forced to subsidize political activities they disagree with. That ruling—from a case called Abood—led to regulations saying that employees must be given an opportunity to demand a refund of the money unions spend on political activities. Yet that’s never been a satisfactory outcome, because it presumes that workers are willing to subsidize union politicking unless they say they aren’t. The Abood decision specifically said that the law should not presume dissent. But that contradicted the usual First Amendment rule that says that we don’t presume people are willing to give up their free speech rights unless they clearly say so. Unions have exploited Abood’s no-presumption-of-dissent rule, in fact, by making refund procedures so complicated that people just let unions keep the money rather than go through the trouble. And the Court has recognized that this results in a “remarkable boon” to unions.
The better result would be an “opt-in” requirement that says workers are presumed not to want to subsidize union political activism unless they say they are. In simpler terms: unions should ask first.
Janus involves public employee unions, and that makes a difference because while private sector unions spend only some of their time and money on political issues, public employee unions are always involved in political activism. Everything they do involves spending tax dollars and expanding or diminishing government programs. Thus even their collective bargaining activities are public, political affairs. So the rule that applies to other unions—that they can’t take people’s earnings to subsidize political lobbying—applies even more strongly. Nearly everything public employee unions do is lobbying.
Today’s decision eliminated the Abood ruling, and makes clear that public sector union activities are public, political matters, and not the sort of private contractual matters that take place between private sector unions and employers. “Even union speech in the handling of grievances may be of substantial public importance and may be directed at the ‘public square.’” That means it’s crucial to secure the rights of workers who don’t want to subsidize political activities by unions. “Compelling individuals to mouth support for views they find objectionable violates [the First Amendment’s] cardinal constitutional command, and in most contexts, any such effort would be universally condemned. Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues—say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this.”
The Court concludes that the opt-out rule in Abood—which has resulted in “a considerable windfall” for public-sector unions—must be abolished. “States and public-sector unions may no longer extract agency fees from nonconsenting employees,” the Court declares. A rule that doesn’t ask workers before taking their money “violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed.”
This is a major victory, not just for the free speech rights of government employees who disagree with the political activities of public-sector unions—and not just for taxpayers, who face an unfair disadvantage when lobbying the government on the opposite side of these powerful unions—but also for others who are often forced to subsidize organizations they disagree with. In our ongoing lawsuit, Fleck v. Wetch, we’re challenging the constitutionality of North Dakota rules that require attorneys to join a bar association (and not just to pass the bar) in order to practice law. As we explained in a brief filed just days ago, the principle in the Fleck case is the same as that at issue in Janus: people should not be presumed to be willing to subsidize political organizations unless they say that they are. Ask-first, not opt-out, is the rule that freedom of speech requires.
Timothy Sandefur is Vice President for Litigation at the Goldwater Institute and holds the Duncan Chair in Constitutional Government.