Public Unions Are Violating Workers' Constitutional Rights

Can the government force its employees to pay money to a union just to keep their jobs? That’s the question the Supreme Court will consider when it hears arguments in Janus v. AFSCME on February 26.  

The plaintiff in the case is Mark Janus, a child-support specialist who works for the State of Illinois. He’s one of some 5 million government workers in 22 states who are forced to give part of every paycheck to a union as a condition of their employment. His argument? Making workers like him pay these fees violates their First Amendment rights to free speech and association. 

Opposing Mr. Janus are Illinois officials and the union he’s forced to pay, the American Federation of State, County, and Municipal Employees (AFSCME). They argue that the Court should continue to follow a 1977 decision, Abood v. Detroit Board of Education, which deemed forced fees acceptable as long they don’t fund union political activities unrelated to collective bargaining on workers’ behalf.  

But the Abood decision has a fundamental flaw: It hasn’t actually protected Mr. Janus and other public-sector workers like him from being forced to pay for unions’ political speech.  

One problem with Abood is that it left unions free to decide for themselves which activities non-members can and can’t be charged for — unless and until someone holds them accountable. In practice, that means that non-members often pay for unions’ advocacy on policy issues far removed from workplace concerns. Unions can get away with this because a worker who suspects a union is misusing his or her fees must go through costly arbitration or even litigation to challenge it — a heavy burden few are willing to bear to save a few dollars.   

A recent Washington Post editorial suggested the Court could fix this problem without overruling Abood simply by imposing stricter rules on unions to better ensure that non-members only pay for union bargaining on their behalf and nothing more. (The Post’s editorial board declined to meet with Mr. Janus or his attorneys, or to publish an opposing point of view.) But that won’t suffice. 

Why? Because Abood has a deeper defect that no mere tweaking can fix: Public-sector unions’ core activity — representing workers in collective bargaining — is itself inherently political. When a union bargains with the government, it tells the government how much it should spend on workers’ salaries, what kind of benefits it should provide, and how it should run its programs. When anyone else does that, it is considered political speech — we call it lobbying. 

So when a worker is forced to give money to a public-sector union to pay for collective bargaining, he or she is being made to pay for someone else’s political speech — something the First Amendment virtually never allows. That means the only way to protect workers’ First Amendment rights is to allow them to choose whether to pay union fees at all. 

The Post editorial also argued that the Court should leave this issue to state and local governments because debates over the role and influence of public-sector unions are too partisan and political in nature. But that, too, misses the point. 

The Janus case isn’t about whether unions and the policies they support are good or bad; it’s about whether forcing someone in a government job to give money to a union violates that individual’s constitutional rights. And it’s the Supreme Court’s responsibility to strike down state and local laws when they violate First Amendment rights — regardless of the politics of the parties involved. So asking the Court to leave this issue to others in the name of “staying out of politics” are really asking the justices to abdicate their duty. 

What about the Post’s argument that the Court should follow Abood because following precedents promotes “legal stability”? In fact, the Court often overturns past decisions when it determines that they’ve resulted in wide-scale violations of constitutional rights. A recent example is Obergefell v. Hodges, in which the Court overturned a 1972 precedent to strike down state bans on same-sex marriage, even though the case involved a controversial issue that had always been left up to state governments. As in many other cases, the Court concluded that constitutional rights must take priority.

The First Amendment is not and should not be a partisan issue; nor should a citizen’s First Amendment rights be nullified simply to follow precedent for precedent’s sake. The Supreme Court should overrule Abood and restore workers’ right to choose which political advocacy groups they will and won’t support with their money. 

Jacob Huebert is Director of Litigation at the Liberty Justice Center and co-counsel for plaintiff Mark Janus in the Supreme Court case Janus v. AFSCME.