What Are the Effects of Janus v. AFSCME So Far?

by Jacob Huebert
October 11, 2018

On June 27, the Supreme Court ruled in Janus v. AFSCME that the First Amendment protects government employees from being forced to pay fees to a union. For the five million government workers across 22 states who were being forced to give part of every paycheck to a union, that was great news.

But three months later, what effects has the decision actually had? As one of the attorneys who represented plaintiff Mark Janus in the case, I was recently invited to discuss this question in two events hosted by the Grassroot Institute of Hawaii. Here’s what’s happened in the wake of Janus so far:

1.) Millions of workers are free to choose—but some still aren’t.

After Janus, most, if not all, state and local governments that previously forced their employees to pay union fees stopped taking fees from people who weren’t union members. So those individuals got more money in their pockets and the satisfaction of knowing they were no longer paying for union political advocacy they might not agree with.

But the bad news is that few, if any, governments have gone far enough in respecting workers’ freedom to choose.

In Janus, the Court said that the government can only give an employee’s money to a union if there’s “clear and convincing evidence” that the employee “affirmatively consented” to pay. The unions and their allies in government say this means they can keep taking dues from workers who signed up to be union members before the Janus decision. And, they say, if a worker previously agreed to have dues deducted every month for a year, the worker is still on the hook for all of it, even if he or she wants to stop paying now.

That’s wrong. In fact, union membership cards or dues authorizations signed before Janus are not evidence of employees’ consent. That’s because before Janus, workers were forced to choose between paying full union dues or paying an agency fee that was typically slightly less than full dues. They didn’t get the third option the First Amendment requires: to pay nothing.

Therefore, workers who signed a union membership agreement before Janus did not necessarily freely consent. To have evidence of genuine consent, governments would have to obtain new authorizations now that workers have the option to not pay a union at all. Unfortunately, it will likely take litigation to make governments respect workers’ rights in this way. For example, the Mackinac Center recently filed a lawsuit against New Jersey on behalf of union members who wish to leave their union immediately but have been told they can’t. The Freedom Foundation has filed a similar suit against the state of Washington.

2.) Unions are keeping members—by legitimate and illegitimate means.

Unions have responded to Janus by increasing their efforts to recruit members and encourage current members to stay. And they seem to be having some success. Before Janus, public-sector unions warned that a ruling against them would devastate their membership numbers and finances—and cited this as a reason why the Supreme Court should uphold its precedent allowing mandatory fees. But as Steven Greenhut has written, unions have changed their tune and now boast that Janus has not significantly harmed their membership numbers or their finances. At our Honolulu event, union lawyer Tony Gill reported that, so far at least, Hawaii’s public-sector unions have not seen a significant change in membership.

Unfortunately, the unions might not have accomplished this entirely through peaceful, honest persuasion. Again, governments are still taking union dues from workers who became members pre-Janus, even though many workers might no longer wish to be members after Janus. And when workers ask to resign and stop paying, they are often told they cannot do so until the end of their current membership year. Also, according to the Liberty Justice Center’s Diana Rickert, some unions have been “trying to scare and intimidate people into maintaining membership by making threats—they say [false] things like, ‘Your salary will go down if you leave the union’ or ‘You’ll lose your benefits.’”

Unions have also sought new legislation to put barriers in the way of workers who want to leave their unions. For example, Hawaii and New Jersey have enacted laws giving workers only a narrow window of time each year in which they can leave their unions.

Such laws impose an unreasonable burden on workers’ ability to exercise their First Amendment rights and, if challenged in court, will likely be struck down. At the Honolulu event, even Mr. Gill acknowledged that the statute was “probably not” constitutional.

New York and a few other states have also enacted laws that require a newly hired worker to attend a one-on-one meeting with a union representative soon after being hired, presumably so the representative can pitch union membership. It’s safe to assume that these workers will not be presented with any reasons why they might not want to be a union member—if they’re told about their right not to join at all. Indeed, privately some government officials admit that they are not telling workers about their rights under Janus for fear of being sued by unions.

An executive order New York Governor Andrew Cuomo signed on the day of the Janus decision actively seeks to prevent workers from hearing alternative viewpoints by prohibiting disclosure of workers’ contact information—for the specific purpose of preventing groups other than unions from communicating with them. Of course, workers’ privacy is important, but it’s inappropriate for governments to deliberately limit the information to which employees have access, especially for the purpose of benefiting a private advocacy group such as a union.

3.) Janus should also free lawyers forced to pay bar fees.

In the years ahead, Janus should provide benefits to more than just unionized government employees. For example, it should also benefit lawyers who have been forced to pay bar fees.

In most states, lawyers are forced to be members of, and pay fees to, a state bar association, which is a private organization charged with regulating the legal profession. But these organizations don’t just regulate the legal profession and promote ethical behavior by lawyers; they also lobby state legislatures and support and oppose ballot measures.

The Goldwater Institute is currently asking the Supreme Court to hear Fleck v. Wetch, which challenges North Dakota’s bar association fees. In that case, the bar association used $50,000 of member dues to advocate against a ballot measure that would have changed state family law “to create a presumption that each parent is a fit parent and entitled to be awarded equal parental rights.” Our client was forced to support the bar association’s advocacy against this ballot measure with his dues—even though he personally contributed $1,000 to a campaign to support the measure and spoke out on its behalf in the media.

We’re hopeful that the Supreme Court will ultimately agree to hear the case so that lawyers nationwide can enjoy the freedom that Janus has already given, or at least promised, to millions of government workers.

Jacob Huebert is a senior attorney at the Goldwater Institute. He was a member of the legal team that successfully litigated the Janus v. AFSCME case.