June 27, 2019
by Jacob Huebert
One year ago today, the Supreme Court restored the First Amendment rights of millions of public-sector workers, ruling in Janus v. AFSCME that governments can’t force their employees to pay fees to a union just to keep their jobs.
That decision has already had a big impact: a lot of money that otherwise would have gone toward unions’ political advocacy—perhaps hundreds of millions of dollars in the past year alone—is instead going into the pockets of workers who are free to spend it as they see fit.
But Janus could have even greater effects in the years ahead, as litigators for liberty at the Goldwater Institute and like-minded organizations across the country work to build on the Supreme Court’s ruling and bring more First Amendment freedom to more people.
Challenging mandatory bar associations
The Goldwater Institute won one of the first major victories building on Janus when the Supreme Court overturned a lower court ruling that approved of laws that force lawyers to join and pay dues to a state bar association in Fleck v. Wetch.
In most states, lawyers are required to join and pay dues to a state bar association as a condition of practicing law. These mandatory bar associations are supposed to help the state regulate the practice of law, but they also often engage in political activities, such as lobbying for or against proposed legislation and publishing articles that take positions on controversial issues.
In North Dakota, for example, attorney Arnold Fleck gave his time and money to support a ballot initiative to reform child-custody law—and then discovered that the bar association he was forced to pay used $50,000 of mandatory member dues to oppose the measure. The Goldwater Institute filed a lawsuit on his behalf in 2015, arguing that making him join a bar association and pay for its political speech violates his First Amendment rights.
The U.S. Court of Appeals for the Eighth Circuit ruled against Mr. Fleck in 2017, but in December 2018 the Supreme Court ordered the lower court to reconsider its decision in light of Janus. The Eighth Circuit reheard the case in June and will issue a new decision soon. That will set the stage for the Supreme Court to potentially take the case up again and declare that attorneys, like government workers and everyone else, have the right to choose what organizations they’ll join and what political speech they will and won’t support with their money.
Meanwhile, the Goldwater Institute has also brought cases on behalf of attorneys in Oklahoma and Oregon who have seen their bar dues used to pay for political speech they disagreed with and has filed an amicus brief supporting lawyers challenging Texas’s mandatory bar.
Challenging exclusive representation
Although Janus ended mandatory union fees, some 22 states still authorize unions to act as workers’ “exclusive representative” in collective bargaining. In other words, public-sector unions in these states still get to speak for all unionized government employees—even if some employees who aren’t union members would rather speak for themselves.
As Justice Alito’s opinion in Janus recognized, foisting an “exclusive representative” on government workers to speak on their behalf is “a significant impingement on associational freedoms that would not be tolerated in other contexts.” Therefore, since Janus, numerous lawsuits across the country have been asking federal courts to end unions’ power of exclusive representation for violating workers’ First Amendment right to freedom of association.
Two of those cases—Bierman v. Walzand Uradnik v. Inter Faculty Organization—recently arrived at the Supreme Court, supported by amicus briefs from the Goldwater Institute. The Goldwater Institute’s briefs explained how public-sector unions are like the “factions” the founders sought to constrain when they designed the Constitution—and how unions’ special legal privileges, including their power of exclusive representation, make them especially dangerous and undermine our republican system of government.
The Court declined to hear Bierman and Uradnik, but that doesn’t necessarily mean that the justices aren’t interested in the issue; Justice Alito’s statements on the issue in Janus suggest they are. More cases on this issue are working their way through the courts, and as the workers who brought them seek Supreme Court review, the Goldwater Institute will continue to remind the justices and the public that ending exclusive representation is important, not only to protect workers’ First Amendment rights, but also to ensure that special privileges don’t give unions undue power and influence.
Jacob Huebert is a Senior Attorney at the Goldwater Institute. He previously served as Director of Litigation for the Liberty Justice Center in Chicago, where he successfully litigated the landmark Janus v. AFSCME case.