Supreme Court Rules in Favor of Freedom of Speech in Union Decision

In blow to organized labor, ruling ends compulsory union dues for public employees
June 28, 2018 Last Updated: June 28, 2018

WASHINGTON—The Supreme Court ruled on June 27 in favor of Illinois education employee Mark Janus, affirming his right not to be forced to pay union dues.

The case addressed a constitutional issue—the protection of freedom of speech in a government workplace—and also has significant implications for public employee unions and the role they play in funding the Democratic Party and advancing liberal policy positions.

President Donald Trump said in a tweet celebrating the decision: “Supreme Court rules in favor of non-union workers who are now, as an example, able to support a candidate of his or her choice without having those who control the Union deciding for them. Big loss for the coffers of the Democrats!”

Janus is an employee of the Illinois Department of Healthcare and Family Services, where he assists children affected by divorce. He filed the suit against the American Federation of State, County and Municipal Employees (AFSCME), the union that represents his workplace in collective bargaining.

Janus had chosen not to join the union, objecting to its role of representing him in collective bargaining and to the political and policy positions the union supported.

Those electing not to join the union were required by the state to pay what is called an “agency fee.”

As Justice Samuel Alito explains in his opinion for the majority, according to the controlling precedent in this case, Abood v. Detroit Board of Education, “nonmembers may be charged for the portion of union dues attributable to activities that are ‘germane to [the union’s] duties as collective bargaining representative,’ but nonmembers may not be required to fund the union’s political and ideological projects.”

Janus had objected to the agency fees and argued that by being forced to pay them, he was being forced to support political speech that he did not agree with. There was no way to separate supporting the union in collective bargaining and supporting its political activities.

The U.S. District Court of the Northern District of Illinois found for the union, and the Seventh Circuit Appeals Court affirmed the district court’s decision, relying on the decision in the Abood case from 1977.

Alito noted that the Supreme Court has “held time and again that freedom of speech ‘includes both the right to speak freely and the right to refrain from speaking at all.’” The court ruled that Janus could not be coerced into “speaking”—paying dues that supported positions that he disagreed with.

Regarding the preeminence of freedom of speech in our system of government, Alito quoted Justice Robert H. Jackson, who said in a 1943 opinion, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Alito argued under several heads for overturning the Abood precedent: “that Abood’s proponents have abandoned its reasoning, that the precedent has proved unworkable, that it conflicts with other First Amendment decisions, and that subsequent developments have eroded its underpinnings.”

Justice Elena Kagan, writing for the minority, complained that the court’s opinion overthrew a precedent that had been entrenched in the nation’s law for 40 years. In doing so, Kagan argued the ruling prepared for inappropriate activism “by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”

Twenty-four other states have laws similar to that overturned in Illinois, and so the decision in Janus v. AFSCME will have a wide impact.

Wisconsin offers a clear example of the effect the Janus ruling may have on public employee unions. In 2011, Gov. Scott Walker passed Act 10, which, among other provisions, no longer required members of collective bargaining units for public employees to pay union dues.

According to the Competitive Enterprise Institute, by the end of 2012, an AFSCME chapter in Milwaukee “went from 9,000 members and an income of more than $7 million per year in 2010 to 3,500 members and a deep deficit.” Other chapters around the state also saw deep reductions in membership.

A report by the Manhattan Institute explains how “a large and secure revenue stream turns public-employee unions into potent political organizations … that make direct donations to candidates and parties, fund issue ads in parallel campaigns, provide get-out-the-vote ground operations, run campaigns for and against ballot measures, and engage in extensive lobbying efforts.” These efforts overwhelmingly favor the Democratic Party.

Janus, who attended the Supreme Court session, said in a statement after the decision: “I’m thrilled that the Supreme Court has restored not only my First Amendment rights, but the rights of millions of other government workers across the country. So many of us have been forced to pay for political speech and policy positions with which we disagree, just so we can keep our jobs. This is a victory for all of us.”