5 Ways Courts Can Build on Janus’s Free Speech Freedoms

June 30, 2020
By Jacob Huebert

Two years ago, the Supreme Court issued its landmark Janus v. AFSCME decision, in which the Court ruled that governments can’t force their employees to pay union fees as a condition of their employment. In other words, the Court declared that government employees have the same First Amendment right as everyone else to choose which organizations—and whose political speech—they will and won’t support with their money.

That decision delivered an immediate benefit to many thousands of government employees across the country who weren’t union members, who stopped having union fees taken out of their paychecks. That was big, but it should only be the beginning, as courts and state governments may soon build on Janus to deliver more First Amendment freedom to more people.Here are five ways they could do so.

1. The Supreme Court should make unions give up their ill-gotten gains.

One question Janus didn’t answer was whether public-sector unions must give back the fees they wrongfully took from workers before Janus was decided. Of course they should have to do that: Even if it might strike some people as unfair that unions should have to repay money they took at a time when that appeared to be legal, it would be even less fair to deny any redress to workers who were forced to subsidize unions’ political speech in violation of their fundamental First Amendment rights.

Mark Janus, the plaintiff from the original case, is now asking the Supreme Court to take up the refund issue. The Goldwater Institute has filed an amicus brief, together with the Cato Institute and Mackinac Center, urging the Court to take his case. The Court has repeatedly rescheduled its consideration of Janus’s new petition—which might suggest that one or more of the justices is seriously considering it—and could issue an order granting review when it returns from its summer break in September.

2. Governments should get genuine consent before taking union dues from workers.

Janus said that governments couldn’t take union dues or fees from a worker without “clear and compelling” evidence that the worker “affirmatively consented” to pay and knowingly waived his or her First Amendment right not to pay.

One problem that remains after Janus is that governments commonly lack that kind of evidence for the people listed on their books as union members. Often, a union just gives a government employer a list of the people it claims are members, and the government takes the union’s word for it and deducts union dues from those workers’ paychecks.

That’s not good enough. After Janus, these governments should have stopped taking union dues or fees from all workers until workers gave the affirmative consent to pay dues that Janus requires. But few, if any, government employers did this.

Recently, however, states have started taking notice of what Janus requires. Last year, Alaska Governor Mike Dunleavy issued an administrative order directing the state to ask workers directly—immediately and annually—whether they wish to waive their First Amendment rights and have union dues deducted from their checks. Unfortunately, unions sued and obtained an injunction against the order, so the issue will now go to the Alaska Supreme Court.

Fortunately, the Alaska court case hasn’t stopped other states from moving to protect workers’ rights in the same way. In June, the Michigan Civil Service Commission proposed similar reforms. Shortly afterward, Texas’s Attorney General and Indiana’s Attorney General issued opinions declaring that governments in their states must have proof of employee consent before taking union dues from a worker.

3. Unions should stop representing workers who don’t want a union to speak for them.

Although Janus ended forced public-sector union fees, it didn’t stop public-sector unions from “representing” workers who aren’t members and don’t want a union to speak for them. But the Court did note that a union’s power of “exclusive representation”—which allows it to speak for all workers in a given group, whether they’re union members or not—is “a significant impingement on associational freedoms that would not be tolerated in other contexts.”

Numerous lawsuits since Janus have asked the court to expand on that idea and declare that, with or without mandatory fees, exclusive representation violates workers’ First Amendment right to freedom of association. The Supreme Court has passed on some opportunities to take up the issue, but now it has an ideal opportunity in Reisman v. Associated Faculties of the University of Maine, in which the Goldwater Institute and many other groups have filed amicus briefs asking the Court to grant the plaintiff’s petition.

As the Goldwater Institute’s brief explains, when our country’s founders designed the Constitution, they sought to limit the influence of “factions”—that is, of interest groups that would use the government to serve their own interests rather than the public interest. Today, public-sector unions have all the characteristics of a faction—and their special legal privileges, including their power of exclusive representation, makes them especially dangerous and undermines our republican system of government. Eliminating public-sector unions’ power of exclusive representation would reduce government unions to the kinds of factions the Founders anticipated in designing the Constitution—still dangerous, but limited by the political process.

4. Governments should stop forcing workers to pay for union release time.

Governments also give unions an unfair advantage through “release time” provisions in union contracts, under which government employees are “released” from the jobs they were hired to perform to work exclusively for government unions—funded by other government employees, including those who don’t belong to the union.

Before Janus, governments and unions attempted to justify this gift to unions by arguing that it was simply part of the “total compensation” that the government pays to all workers covered by a union’s agreement with the government. But if release time is part of the compensation paid to all workers, that means non-union members—who presumably don’t benefit from the release time activities and don’t want to pay for them—are being forced to fund the salaries of release-time employees.

In Gilmore v. Gallego, the Goldwater Institute represents two City of Phoenix employees who object to having part of their salaries directed toward union activities, arguing that forcing them to fund a government union’s speech violates the First Amendment as well as several state constitutional provisions and Arizona’s Right to Work laws.

5. Mandatory bar associations should stop violating attorneys’ First Amendment rights.

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.

Mandatory bar associations therefore violate attorneys’ First Amendment rights in the same way that mandatory public-sector union fees violate government employees’ rights. That’s why the Goldwater Institute has brought First Amendment lawsuits on behalf of attorneys against their mandatory bar associations in North Dakota, Oregon, Oklahoma, and Louisiana who have seen their bar dues used to pay for political speech. The ultimate goal: a Supreme Court decision declaring that attorneys everywhere—like government employees everywhere, under Janus—shouldn’t have to give up their First Amendment freedoms just to be allowed to do their jobs.

Jacob Huebert is a Senior Attorney at the Goldwater Institute.