Janus v. AFSCME: Union Fees & the First Amendment [SCOTUSbrief]
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Janus v. AFSCME: Union Fees & the First Amendment [SCOTUSbrief]


The issue in this case are whether public
sector union fees are constitutional. The parties to this case are Mark Janus,
Child Support Specialist Employed by the State of Illinois, and the American Federation of
State County and Municipal Employees Council 31, otherwise known as AFSCME Council 31,
as well as various departments of the state of Illinois. AFSCME, it’s function is to bargain with the
state of Illinois over Illinois’s policies that affect employees. And the theory of the case basically stated
is that it offends the First Amendment to force an employee to support union speech
that he or she does not support. To understand the case in Janus, you really
have to go through the chronology of the case law dealing with public sector union fees. And that story begins with Abood versus Detroit
Board of Education in 1976. The issue in Abood was, could public school
teachers be forced to pay union dues as a condition of keeping their jobs? And what the Supreme Court said is, “Partially
yes, and partially no.” The Court said that, “Public employees can
be forced to pay for the union’s cost of collectively bargaining with the government
and for enforcing the resulting contract.” However, the Court held it as unconstitutional
to force employees to pay for what it called “political and ideological expenses.” Now the dissenting justices at the time criticized
that distinction by saying, “It doesn’t exist because collective bargaining in the public
sector is political. You’re bargaining with the government to adopt
a policy. That’s a political activity and, therefore,
should be just as non-chargeable to non-members as other political activities.” However, the Abood dichotomy was the law and
remains the law to this day. Then in 2014, another case came to the Supreme
Court called Harris v. Quinn. Harris versus Quinn concerned whether, under
Abood, individuals who are not public employees could be forced to pay compulsory union fees. The question in Harris was is that constitutional? The Court held that it wasn’t, and that Abood
did not extend outside of the employment context. But for our purposes, for this conversation,
more importantly, the Harris Court strongly criticized Abood. The following year the Supreme Court took
another case that directly challenged Abood. This case was called Friedrichs versus California
Teachers Association. And the issue in Friedrichs was the exact
same issue as in Abood, “Could you force public school teachers to pay compulsory union dues
to keep their jobs?” However, one month after an argument, Justice
Scalia unexpectedly passed away, deadlocking the Court at four to four. Uh, as a result of that, the Court split four
to four on Friedrichs, and dismissed the case on the grounds that it couldn’t reach a decision,
leaving the issue unresolved. The primary arguments that Mr. Janus is making
in this case is that there is no distinction between a political activity and collective
bargaining in the public sector. And in the case of the public sector, you’re
talking about speech directed to the government, to impact governmental policies. And so that brings up speech at the core of
the First Amendment, namely speech to influence public affairs. Ah-, and the meaning of the First Amendment
that’s called petitioning. Another word more commonly used is lobbying. In other words, bargaining with the government
is political. And if bargaining with the government is,
in fact, a political activity, indistinguishable from lobbying, it should be unconstitutional
under the First Amendment to force Mr. Janus and other employees to pay for that activity. So the union’s principle argument in this
case is that because all employees receive the union’s services, and benefit from the
union’s representation, all employees should have to pay for that service. Another argument that AFSCME makes in this
case, is that the government has greater leeway in dealing with employees than it does with
citizens. So even if a Government could not enforce
a citizen, for example, a man on the street, to support union advocacy, when the government
is acting as an employer, it’s power over the employee is greater in a constitutional
sense. So if the unions prevail in Janus, uh, the
law will stay as it has been since 1977. Public employees will continue to be forced
to pay compulsory union fees in all non-right to work states, which can range anywhere from
60 to 90 percent full union dues. If the Court holds in Mr. Janus’s favor, public
sector union fees will become unconstitutional, which means that under the First Amendment,
no public employee can be forced to pay dues to a union advocate against their will.

40 Comments

  • Jerry Lifsey

    Since federal employee unions are "negotiating" with taxpayer money, the taxpayers should decide whether or not government employees should be allowed to be in a union

  • larry hoekstre

    same anti union bull don't want to pay the dues get a rat job and get paid less.the one and only thing that a working person can do to help themselves is to join a union the only thing this crap does is degrade the power of unions period

  • Distimmer

    It's cute that they pretend this is to inform and educate, when the lawyer speaking reps the 'Right to Work' corporate front-group.

  • Susan Radosh

    "Right to Work' is a misnomer; it should read "Right to Starve".  Remember that union members sweat and died so that we could have an 8 hour day and weekends and vacations.  Ready to give up the minimum wage, 8 hour workday, 40 hour week, weekends and holidays?  Cause that is what unions still fight for.  And without them, you can rest assured You and I will work longer and harder in more unsafe conditions, for lower pay.  Beware, because the Federalist Society is a Corporate front for billionaires who just don't want any annoying  unions at their worksites looking to raise  wages and better working conditions.  If you support this position, check your pockets–are you a millionaire or a billionaire?  Cause if you're not, and you believe this tripe–you are screwed.

  • father of a stolen child

    if you don't want to be in a union, don't look for a job in a field where union membership is the norm. What is so difficult? There are private sector jobs for pretty much any within the private sector, and Janus worked in the private sector prior to the job this is concerning with the state. Its not that difficult. Everyone enjoys the fruit of the Unions (eg: safe working conditions, 40 hour work weeks, overtime being paid more, child labor no longer being legal, etc) yet fight for these "right to work" causes. Did nobody pay attention in history class when this was covered? Things were not rosy when corporations were allowed to do whatever they wished, and "right to work" was the law of the land.

  • John Daniels

    Janus is human garbage, he's got a good job because of a strong union and no other reason. Total human garbage trying to ruin other people's lives.

  • John Daniels

    It's a political organization that secures the rights and benefits of government employees. Unions fought to standardize everything we take for granted, union or nonunion, like weekends and overtime and vacation and health benefits. Dues are really a small amount to pay to secure these benefits.

  • Maria Callous

    Unions and management are supposed to work cooperatively to improve work.  Management brings to the table its observations for improvement and labor brings its observations.  They see what they have in common.  it is a quid pro quo in some cases.  Under law when they meet they are equals.  This means both sides have good ideas.  The hostile approach is very old.

  • Michael Shoots

    This is clearly designed as an anti union piece, which to be fair is targeting something that does appear to be unjust. Corporations and their stock holders benefit from the decline of unions, while worker wages and benefits have suffered. My suggestion to anyone who wants fair treatment from employers: fix the problems with unions instead of getting rid of them, because without collective bargaining you can easily be taken advantage of.

  • R Butler

    It’s an individuals choice to be with a union no one forces anyone to be union. And union dues go toward pensions health benefits without union dues your benefits go down the drain because no one is funding the programs. Unions are more American than America bottom line if people did their research instead of listening to rich people everyone would be union again. The people that fought in the hay market riot are turning over in their graves. 40 hour week and the weekend brought to you by unions because we were sick of rich owners taking advantage of hard working people. RIGHT TO WORK FOR LESS is what right to work is.

  • vashthestampede11

    I don't think it's a question of if at this point. It was 4-4 before Gorsuch got on the bench, and there is no way in hell that Gorsuch is siding with AFSME.

  • Emily Carrera

    Don’t join the union. Fine. But then you shouldn’t reap the benefits. Enjoy your shit pay. Forced OT. Lack of employee right. Benefits.

  • peteycip

    Don’t work in a union job if you don’t want to be in the union.

    Don’t be a free rider. This is another attack on the working class. The corporations, the rich, and the right wing wants to continue to destroy and divide us workers. Unfortunately, half of us will believe them and continue our own self inflicting demise.

    This is clearly an Anti-Union video and people need to understand that. People need to realize unions fought for the minimum wage, child labor laws, safety regulations, the 40 hour work week, overtime pay, the list goes on and on.

    Stop listening to anti-union propaganda. Stop voting against your own self interest!

  • Corlis Taylor

    Employees who are reluctant to paying Union dues have always had the option to divert their funds to other charitable organizations

  • Oly Yooper

    i’d heard they were worthless at work. went in for hr meetings and the worthless afscme didn’t even want to show up for the meeting, rather represent by phone, cluelessly saying to just sign off on mgmt counseling. got counseling lessened on my own. taxation without representation, afscme. too late to light a fire under your lazy butts. unions should represent, instead they just get fat. heck yeah i’ll opt out. why pay for protection when there is none.

  • Thomas Welsh

    Compelled speech is the correct way to view this case. The problem with compelled speech is evident in the unbalanced force unions project. Force that has ruined the marketability of US made products. And profitablillity that has been used to fund a political point of view not shared by the majority of the people it hopes to rule over.

  • LeeRoy Dundlehay

    I'm a public sector non union member, and I was being forced to pay fair share fees. Now I received a letter from them saying they will no longer be taking the fees. Well thank you Janus and scotus, I appreciate having more money in my pocket.

    Now I think I'm going to take it a step further and try and attempt to bargain my own compensation package. Im not a union member, I dont pay dues, so what ever contract the union negotiates is of no concern to me.

    If my employer doesnt want to deal with me one on one, and forces me to fall into the union contracted pay package, I wonder if that's a further example of them suppressing my free speech? Maybe I need a consult with Janus's attorneys.

  • JonathanDGrim

    When unions negotiate higher pay and better benefits then non-paying members shouldn't be privy to those benefits.

  • Professor Liberal Avenger

    It boils down to this: Radical right wing extremists want to limit unions because they don't vote for radical right wing extremists. Unions can stand up to the big money the rectumlickums suck up to.

  • 4

    I'm union and I feel they negotiate my salary pretty. I never thought about the polotics. I stay out of trouble but wonder if I will make less money now.

  • Chad Bailey

    In Iowa, you can either be a Union member or not, you either pay the Union dues or you don't, end of story, so why are they still trying to attack the workers of Iowa, for making their own decision as to what they want to do with their money.

  • Is that a thing?

    I agree he shouldn't have to pay the union dues.. I also think they should do away with the me too clause for labor… that would result and non-union members not getting a raise for benefits when union members get their raise or benefits…. Unions hire attorneys to fight for these raises that cost money union dues money, so if they get rid of the me too clause I'm totally for it.. because non-members are freeloaders. We need legislation to do away with the Union weakening me too clause…

  • Joanne Mercader

    Before unions for public employees the private employees were paid more AS IT SHOULD!
    Tax payer funded public employees by virtue of the position of tax payer funded employee need to understand exactly
    WHAT IT MEANS

  • srboydesq

    Public Sector unions should never have been allowed to exist. The fallacy that public employees need collective bargaining is ludicrous. The Pensions these employees have amassed through bribes and donations to elected officials has gone unchecked and unfunded pensions exceed 14 trillion dollars. In California, wages and pensions now exceed 48 cents of every dollar of the 2018 State Budget. These unions are no longer entitled to lobby bribe and compel the workers to pay the amount they deem as dues. Opt out NOW! If you don’t, the guarantees unions promise will not be available when Bankruptcy Courts strike them down as excessive.

  • Elena Gomez

    Thank you for this ruling. I disagree with where the union puts my hard earned money to, including to leftist policies and candidates. I opted out and will pass the word on to all my coworkers who feel the same about our Left-leaning pro-Democratic unions. Yes, I am working class and I work my &^% off and I wish to do what I please with my money.

  • Ryan Wheeler

    Now if you opt out you basically need to wait for what is essentially the "enrollment period" before they stop talking your money. This way they can about people leaving and joining as it suits them.

  • Cathy Edwards

    Still happily paying my CSEA dues! I enjoy collective bargaining and due process. No union member was ever forced to accept the job.

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