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Janus: We Must Respect Workers' Free Speech Rights – Including the Right NOT to Speak

March 12, 2018

by Jon Riches
March 12, 2018

From education philosophy that determines our students’ curriculum to criminal justice reform, government unions play an unmatched role in impacting public policy. For example, in California, there were 12 total prisons in the state prior to 1980. But between 1980 and 2000, 22 new prisons were built. What changed? The California Correctional Peace Officers Associations (CCPOA) lobbied for them, and the union then lobbied for three-strikes laws to fill those prisons.

The repercussions of public unionization go far beyond the private interests of a government union. They affect many other areas of public policy. And when government unions engage in collective bargaining, they ultimately take decision-making authority over government functions and transfer it to unelected union officials. Perhaps this is why one of America’s most venerated political leaders once observed, “All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service.” That was not Ronald Reagan, not Newt Gingrich, not Scott Walker. That was President Franklin Delano Roosevelt, a friend of organized labor and a major proponent of private sector unions. FDR said this around the same time that George Meany, the first president of the AFL-CIO, said “It is impossible to bargain collectively with the government.”

Both men understood what Mark Janus understands in a consequential case, Janus v. AFSCME, currently before the U.S. Supreme Court: Public sector collective bargaining is incompatible with the proper functioning of our democratic republic. And when the law mandates that employees who disagree with that process must finance it, a fundamental First Amendment violation occurs.

Mark Janus, a child-welfare worker for the state of Illinois, is not a union member and does not want to be. Yet when he received his first paycheck, he noticed that a portion of it had been withheld for “union dues.” Mark was troubled to learn that these union “agency fees” went to directly support union activity—namely, union collective bargaining with the state. Mark brought suit, claiming that being forced to finance union activity, including collective bargaining, is compelled speech, and it therefore violates the First Amendment to the U.S. Constitution.

Mark is right. The reason for this is that all public employee negotiations are political.  Unlike the private sector, in the public sector, wages, benefits and working conditions are paid by the government and through tax dollars. Each of these issues involve the size, scope, and proper functions of government – all political questions.

Under existing Illinois law, the state in this case can use money obtained from people like Mark to expand government in a process over which Mark has no say and no control. That is the definition of compelled speech.

And because money is fungible, Mark is supporting lobbying activities and other political activities—even if he fundamentally disagrees with them.

Public service is public trust. All public employees owe a fiduciary responsibility to the citizens and to taxpayers. When public employees collectively bargain, their representatives also owe a duty to their members’ private interests, which creates an inherent tension with their responsibilities to the public.

That tension is magnified—and rises to the level of constitutional infringement—when those same unions compel those who choose not to be union members to finance the political process of collective bargaining.

It is high time that government unions join the great de Tocqueville tradition of voluntary associations, where participants willingly contribute their time and treasure to common goals without relying on force or compulsion. In Janus, the U.S. Supreme Court can finally hold that workers do not have to pay for political activity with which they disagree in order to work in the job of their choice.

Jon Riches is the Director of National Litigation at the Goldwater Institute.

Cross-posted from The Federalist Society.



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