We are about to be reminded that the First Amendment to the United States Constitution protects the individual even at the expense of large institutions – particularly political institutions, like the Democrat Party and its financial arm, the public employees unions. The United States Supreme Court announced last week that it would hear Janus vs. AFSCME – a case arising out of Illinois which contests the mandatory payment of fees by public employees to public employee unions (AFSCME, AFT, SEIU, teachers unions, etc.) as a condition of employment by state and local governmental entities.
The First Amendment reads as follows:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The courts have uniformly interpreted the First Amendment’s “free speech” article to include not only the right to speak but also the right to refrain from speech. That includes the right to associate with others in the collective exercise of free speech AND to decline to associate with others in their collective exercise of free speech.
In the simplest terms, the imposition of mandatory payments to public employee unions as a condition of employment forces employees to fund (participate) in the union’s political activities. There is little the public employees’ unions do that is not directly or indirectly linked to political activities. They don’t spend money organizing because you have to join the union to retain your government job. They don’t spend money in collective bargaining because, at least in Oregon, they are negotiating with the very people that their political activities helped elect and who are dependent on the unions help for the next election. They DO however spend money – vast amounts of money – on political campaigns and lobbying. Their expenditures include political contributions that must be reported as well as a whole host of political activities that do not have to be reported:
Get out the vote activities – including collection of ballots.
Internal advocacy on behalf of candidates
Opposition research on other candidates and ballot measures
Volunteers for political events
In Oregon the public employees unions expend over $150 Million each biennium; the vast majority of which is used for political activities. It is a BIG deal. In large part it is their raison d’être. And almost exclusively the money and the activities are for the benefit of the Democrat Party. So closely bound are the public employees unions and the Democrat Party that it is difficult to tell where one ends and the other begins.
In addition there are a whole host of issues that the public employee unions tend to support or oppose that are diametrically opposed to the beliefs of individual members of the union. For instance the teachers unions (with support from the other public employees unions) oppose virtually every educational reform – particularly those providing for accountability. The public employees have supported legalization of marijuana, decriminalization of drug use, tax increases and closing of public lands – all of which may be at odds with individual member’s beliefs. But dissident members are required to fund this advocacy anyway.
And it goes beyond political activities. Individual members may oppose abortion but the unions insist on abortion coverage under their healthcare agreements. Single male members may find coverage of genealogical exams and pregnancy pointless and yet they are required to fund the unions demand that such items be included in the healthcare plan. Likewise, single women may find prostate exams and erectile dysfunction pointless but are forced to fund the unions demand for their inclusion. There are workplace rules and pension requirements to which individuals may also object but they are forced to not only accept them but to pay for the unions advocacy to include them.
This is the essence of the objections to mandatory contributions to the public employee unions that violate the First Amendment rights of dissident employees and yet they are forced to fund them and accept their outcome as a condition of employment. Private sector unions are hard pressed to raise similar issues because they are private contracts. But in the case of public employees, it is the government that cooperates in burdening the individual’s right of Free Speech – and that is the fact that makes the Janus case (and the Friedrichs case before it) actionable.
[For a more complete explanation of the argument outlined previously by Justice Samuel Alito in the Knox case please go to my July 5, 2014 column entitled The End of the Agency Shop. https://oregoncatalyst.com/27908-agency-shop-public-employees.html
But a synopsis of Justice Alito’s view (and presumably the view of the majority of the Supreme Court) can be found in the following quote from Knox:
“By authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate.”
And all of this is particularly true with regard to public employee unions that have opted to focus more on the participation in (and in Oregon’s case, the domination of) politics than on the traditional roles of unions in organizing and collective bargaining. The public employees unions realize that government, unlike private sector management, need not be the balancing force in traditional labor-management relations if they (the unions) elect the “management team.” The public employee unions extract over $150 Million each election cycle from public employees – all of it dutifully collected and remitted by the organs of state and local government. In Oregon the public employee unions are, in fact, the financial arm of the Democrat party – a party that now controls all but one statewide elected office and both house of the legislature. As the unions sit down to bargain with government “management” they are negotiating with the very people to whom they contributed substantially for their elections.
It is that relationship that the Supreme Court has recognized as “suspect” and for which it has expressed its concern over the impingement of Free Speech and Right of Association. And it is that relationship which the Supreme Court has suggested that an “opt-out” provision is insufficient.
For those of you forced to fund the Oregon Democrat Party through compulsory union membership and/or financial support, have faith – hope and change are on the way. Hopefully the next decision of the United States Supreme Court will end the compulsory membership requirements of the agency shop for public employees. The original case raising these issues was entitled Friedrich v. California Teachers Association was left at a draw because of the death of Justice Joseph Scalia who was expected to vote with the majority to overturn compulsory payments to public employees unions. The Janus case is virtually identical and with the addition of Justice Neil Gorsuch to the court, the long anticipated end to mandatory union participation is just about over for public employees.
In the end Free Speech is free. It cannot be compromised by the acts of third parties. Even if those third parties are the financial arm of the Democrat party – the public employee unions.