Janus v. AFSCME: Free Speech v. Public Employee Unions

In July of 2014 as the case of Friedrichs v. California Teachers Association was wending its way to a hearing before the United States Supreme Court I wrote the column reproduced below. Friedrichs dealt with the issue of whether public employee unions could require non-members to provide financial support for those unions even when the individual disagreed with the activities of the union. With the death of Justice Anton Scalia shortly after the case was heard, the court split 4-4 as to whether to overturn the Ninth Circuit Court of Appeals’ not surprising decision favoring the public employee unions.

Last Monday, the Supreme Court heard arguments in Janus v. American Federation of State, County, and Municipal Employees (AFSCME). The issues heard were identical to those in Friedrichs. Most legal scholars acknowledge that the Supreme Court would have decided in favor of Ms. Friedrichs and against the public employee unions had Justice Scalia participated in the decision. Those same legal scholars are convinced that with Justice Neil Gorsuch replacing Justice Scalia the decision will now go against the public employee unions as well it should.

In the end, Free Speech must trump collective bargaining with governmental entities. Nothing has changed since I wrote the original column and it is as instructive today as it was then.

Free Speech vs. Collective Bargaining (Non-legalese)

Last week’s column dealt with the United States Supreme Court’s recent decision in Harris v. Quinn. This is the case in which the court ruled that the Service Employees International Union (SEIU) could not require individuals, who received public funds for providing home health care services to relatives, to join or pay dues to the public employees unions. Since that column a number of people have raised the question with me as to why there isn’t a balance between the concerns of unions that non-members should not get a free ride for the union’s bargaining efforts and individuals “free speech” and “rights of association (non-association).”

In its simplest form (non-legalese) free speech is a constitutional right while collective bargaining agreements are private contracts – even when they involve the government as one of the contracting parties. Free speech rights are a part of the Constitution’s Bill of Rights – the fundamentals of a free people – and were enumerated as a barrier to government (or others) impinging on those rights. Free speech rights include the rights of individuals to band together to promote a cause or a point of view (the right of association). Free speech rights also include the rights of individuals to decline joining in the promotion of a cause or point of view (the right of disassociation).

Free speech rights have some limitations – you cannot yell “FIRE” in a crowded theatre. Generally speaking, free speech rights can be waived by the person entitled to exercise them but they cannot be waived by another person – particularly by a person or group hostile to the views of that person.

And that brings us to collective bargaining agreements. First, the constitution can be said to guarantee the rights of people to voluntarily band together (freedom of association) in unions for purposes of advancing their common cause, including agreements relating to wages and terms of employment – a collective bargaining agreement – and even their political causes (comparable to a political party or a political action committee). But the limitation here is “voluntarily band together.” At issue in the Abood, Knox and Harris cases was whether a person could be forced to pay for the activities of union which they refused to join.

The Abood case suggested that non-members should not get a free ride on the “collective bargaining” efforts of a union. The Knox and Harris cases noted that the Abood case was not decided in the context of an asserted “free speech” or “non-association” right by the non-member and, therefore, was not dispositive of those issues. In other words, the conflict between free speech rights and mandatory financing of unions by non-members was not decided in Abood.

So what is it that is so objectionable about the conflict between collective bargaining and free speech rights? On a macro basis one only has to look at Oregon’s public employee unions. Each election cycle the public employee unions receive over $140 million which is collected by state and local governments on an “involuntary” basis from the public employees and then remitted to the unions on a quarterly basis. I use the term “involuntary” because there is no individual authorization for such withholding by the public employees; rather the presumption is that employees must “opt out” of financial participation rather than opt in. The opt out requirements are burdensome and made more so by recalcitrant unions and even when successful apply only to a very small portion of the mandatory union dues – that portion of the dues that relate to amounts unions must report as “political expenditures.” There are two problems with that.

First, the amounts reported for “political expenditures” do not include all of the amounts the public employee unions expend on political activities. For instance, they do not include the amounts that are expended for polling, political education, candidate recruitment, voter registration, voter identification, voter turnout, or voter analysis or the costs associated with the legions of “volunteers” that turn out in support of Democrat candidates and causes. Oregon’s public employee unions expend virtually all of their money and effort on Democrats – so much so that they have become the virtual financial arm of the state Democrat party. (They do this to ensure that when the time comes to negotiate or renegotiate a collective bargaining agreement, the “management” that they must bargain with are the very people that they financed for election.)

There are Republicans and independents amongst Oregon public employees and while they make get relief from financing the “reported political expenditures” they do not get similar relief from financing the remaining political activities in which the public employee unions engage. Not only do they not get relief from such expenditures they are not even asked whether they agree with activities or the purpose of the activities.

And second, the public employee unions may actually engage in other forms of advocacy that non-members and even members who have not affirmatively consented find objectionable. For instance, during collective bargaining the unions may demand that their healthcare benefits include abortion procedures and euthanasia procedures – both of which may be legal in Oregon but are still objectionable on religious grounds by many. Or the unions may favor a seniority system for job security when individual members may support a merit system. Or the unions may favor standard pay effected only by years of service, while individual members may support pay based on contribution or demonstrable skill. Or the unions may oppose individual workplace displays of religious preferences while individual members may support a display of their religious beliefs. And despite their dissent they are not only required to finance such advocacy but to be identified as part of a group supporting such advocacy. Even worse, they are not even given the opportunity to voice their dissent because such positions are determined by the union leadership without notice or approval by the members or the non-members forced to financially support such union activities.

And finally, you can always contract away your free speech rights, but you cannot contract away someone else’s rights. In other words, while it can be said that union members can compromise their individual free speech rights in favor of the collective union speech, the same cannot be said of non-members who are still forced to finance that with which they may disagree. And the recent cases of Knox and Harris have questioned whether you can contract away those rights using an “opt out” method. An “opt out” method assumes that unless you disagree you are deemed to agree. That would be fine if there was notice, opportunity to object and a timely procedure for opting out of associative or financial participation. There are no such provisions with regard to the public employee unions. The majority in the United States Supreme Court has suggested that the only means of ensuring against involuntary inclusion is the “opt-in” method – thus assuming that unless you agree you are deemed to not be included.

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.

This may be the most important decision that the United States Supreme Court renders this decade as it will effect everything from political contributions to financial responsibility (a resolution of the growing unfunded future liability for public employees’ pension which currently threaten to bankrupt states like Oregon, California, Illinois, New York and on and on where Democrat politicians and their allies in the public employees unions have spent lavishly on pension and benefits for the unions).