February 8, 2020
By Jacob Huebert

The Supreme Court’s ruling in Janus v. AFSCME is clear: A government employer can’t take union dues out of an employee’s paycheck unless it has “clear and compelling” evidence that the worker freely has his or her “affirmative consent” to pay them.

A bill just passed by the Virginia House of Delegates, however, defies that rule. It would put the responsibility for receiving and maintaining local government employees’ agreements to pay union dues—as well as workers’ requests to cancel their dues payments—entirely in the unions’ hands. The unions would then tell local governments which workers should and shouldn’t have dues taken from their paychecks. A union normally wouldn’t even have to provide any evidence that a worker agreed to pay—the government would just to take the union’s word for it. A union would only have to come forward with evidence if the worker claimed he or she hadn’t actually authorized a deduction the state was making.

That means unions would be in a position to treat any worker as a member until the worker objected. The law doesn’t specify to whom this objection would be directed, or how or even whether workers would be advised of their ability to object. And the law lacks any apparent penalty for falsely claiming that a worker agreed to pay dues; it only says that the union would have to give the money back.

This scheme is the opposite of what Janus calls for. The whole points of its “affirmative consent” rule is that a government employee shouldn’t face any burden—shouldn’t have to take any affirmative steps—to protect his or her First Amendment right not to join or pay a union. Under the First Amendment, people should never be in a position where they have to fight their way out of a group they never agreed to join or support. That’s why under Janus, the government must not give any of a worker’s money to a union unless and until it has clear and compelling evidence that the employee freely agreed to pay. A union’s mere say-so is hardly that kind of evidence.

The Goldwater Institute has sent a letter to the bill’s sponsor and to the Speaker of the Virginia House of Delegates warning them of this constitutional problem. Although the bill has now passed the House, it’s not too late for Virginia legislators to correct this error. If they won’t, the courts will have to do it for them.

Jacob Huebert is a Senior Attorney at the Goldwater Institute.

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