April 9, 2020
By Jacob Huebert

In Janus v. AFSCME, the U.S. Supreme Court ruled that the First Amendment forbids governments from forcing their employees to pay fees to a union because unions inevitably used workers’ fees for political speech. But it didn’t say whether government unions could keep the fees they’d already wrongfully taken from workers.

Now the plaintiff in that case, former Illinois state employee Mark Janus, is asking the Supreme Court to answer that question—and to order the unions to give back their ill-gotten gains. Today, the Goldwater Institute, together with the Cato Institute and the Mackinac Center for Public Policy, filed an amicus brief urging the Court to again take up Janus’s case.

Lower courts ruled against Janus on this issue, just as they ruled against him in his original challenge to mandatory union fees. According to a Chicago federal district court and the Seventh Circuit Court of Appeals, unions shouldn’t have to give Janus his money back because they (supposedly) relied in “good faith” on state law that authorized them to take the fees and Supreme Court precedent (which Janus overruled) that said the fees were constitutional.

The law and justice are on Janus’s side. Federal law says that anyone who violates a person’s constitutional rights “shall be liable” for doing so—and doesn’t include any “good faith” exception. It might strike some people as unfair that unions should have to pay back money they took at a time when that appeared to be legal. But it would be even less fair to deny any redress to workers who were forced to subsidize unions’ political speech for years. If someone is going to suffer negative consequences, shouldn’t it be unions that enjoyed an unconstitutional windfall rather than innocent workers whose fundamental First Amendment rights were violated? 

Janus isn’t the only person who wants his money back. In dozens of class-action and individual lawsuits pending across the country, government employees who were forced to subsidize unions’ political speech are asking federal courts to order unions to refund their fees. Unfortunately for those workers, courts are consistently rejecting their claims, typically citing the same “good-faith defense” the Seventh Circuit relied on in ruling against Janus.

As the Goldwater Institute’s brief explains, that trend isn’t likely to change unless the Supreme Court steps in. Courts might be especially disinclined to make a union refund workers’ fees—and suffer the potentially severe financial consequences—after many other unions have already been let off the hook. That’s why it’s important for the Supreme Court to take up this issue now. All, or nearly all, of the cases seeking fee refunds are still alive in federal district or appellate courts, so it’s not too late to ensure that unions that unjustly profited from violations of workers’ rights will be held accountable and workers will have the redress to which they’re entitled.

Jacob Huebert is a Senior Attorney at the Goldwater Institute.

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