Janus vs. AFSCME: The Aftermath


Last week the United States Supreme Court handed down its decision in Janus v. AFSCME ruling that mandatory contributions to public employee unions by dissident public employees violated the Free Speech Clause of the First Amendment to the United States Constitution. It is a ruling that I have expected ever since Justice Samuel Alito issued his opinion in Harris v. Quinn ((June 30, 2014) and in that opinion laid the groundwork for a challenge to “agency shops” in federal, state and local governments.

I have written several columns on this subject over the last four years and a fairly thorough discussion about it can be found in my 2014 columns titled The End of the Agency Shop for Public Employees (https://oregoncatalyst.com/27908-agency-shop-public-employees.html) and Free Speech vs. Collective Bargaining (https://oregoncatalyst.com/27948-free-speech-collective-bargaining-nonlegalese.html). Suffice it to say that the First Amendment prohibits the government from interfering with the right to Free Speech – including the right to disassociate yourself from speech with which you disagree. When state governments enter into collective bargaining agreements with public employee unions they agree to force public employees into providing financial support for candidates and issues with whom they might disagree.

While the principle of maintaining Free Speech under the First Amendment is the most important element of the SCOTUS decision, the ancillary impacts in its aftermath are far more important in the political world. First, the pubic employee unions (Service Employees International Union (SEIU), the American Federation of State, County and Municipal Employees (AFSCME), the National Education Association (NEA) and its state affiliates, and the American Federation of Teachers, (AFT) are likely to see a dramatic drop in enrollment now that membership/financial participation is no longer a condition of employment. How quickly that occurs will be wholly dependent on how the Republican Party and right-to-work advocates act. The Republicans have a long history of sitting on their duffs assuming that such things are self-actuating – they are not, particularly against a well organized and well funded union apparatus.

On the other hand, local and national right-to-work organizations, anticipating a victory in the Supreme Court, have already been hard at work gathering data on public employees to alert them to their new found freedoms. An advertising campaign and personal contacts have been planned. A recent article in The News Tribune noted:

“Following a U.S. Supreme Court decision that millions of public sector workers can stop paying union fees, a group tied to Republican billionaires long opposed to organized labor and its support of the Democratic Party has pledged to build on the landmark ruling to further marginalize employee representation.

“The conservative nonprofit Freedom Foundation said that starting Wednesday, it will deploy 80 people to a trio of West Coast union bastions: California, Oregon and its home state of Washington. The canvassers were hired in March and trained this month, according to internal documents reviewed by Bloomberg News. The goal of the multi-pronged campaign is to shrink union ranks in the three states by 127,000 members — and to offer an example for similar efforts targeting unions around the country.

* * * *

“The Freedom Foundation has been waiting for this moment. In February, it began acquiring lists of workers and identifying public employees to feature in anti-union videos. This month, it has been assembling materials to provide to sympathetic local-government human resources departments and readying a toll-free call center.

“Now that the ruling has come to pass, the group plans a flood of social media, mail, email, cable television ads, op-eds and phone calls to spread the news about employees’ opportunity to cease paying union fees. Along with going door-to-door, the anti-union activists plan to visit government buildings at which public employees work.”

Which brings us to the second point. The public employee unions are anticipating a relatively substantial impact with losses of membership ranging between 15% to 50% initially. SEIU announced a thirty-percent reduction in their budget in anticipation of a negative decision by SCOTUS in Janus. Similar budgetary reductions are anticipated by the other major public employee unions. The question will be whether those reductions are taken primarily in the form of reductions in staff or in reductions in political support. Significant reductions in staff will belie their public statements about protecting working class people. Reductions in political support will adversely effect their only effective claim to power – Democrat Party power.

The public employees unions are the principle funding source for the Democrat Party and most liberal/progressive political causes – mandatory dues required dissident employees to finance a party and political causes with which they disagreed. Because the agency shop required public employees to belong to or finance the unions, the unions had very little to do other than engage in political activities including the election of officials with whom they would bargain for wages, benefits and work rules. In the process the union leadership became political power brokers by spending or withholding money for politicians and political causes – not their own money but the money of their members whether they agreed with the union bosses or not. (The concept of spending someone else’s money on their great ideas is a hallmark of the liberal/progressive movement – it is little wonder that the unions almost exclusively support Democrats.)

As previously noted the public employee unions are a major part of the liberal/progressive coalition – they can be counted on to provide financial and organizational support for liberal/progressive causes even when they have no direct benefit for public employees. That is precisely the means by which the leadership of the public employees unions maintain their individual political power. Absent the union money, other liberal/progressive members have little reason to listen to the unions. My bet is that the unions will come down heavy on staff reductions in order to preserve their financial support – and thus the leadership’s individual political power – for the Democrats and other liberal/progressive causes.

Third, the decision in Janus was 5-4 with three of the four Democrat appointed dissenters (Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan) more than willing to toe the line on a familiar axiom of current liberal/progressive thought – free speech only applies to Democrat approved speech. In this case these justices echoed the public employee unions argument that collective bargaining contracts superceded the constitutional guarantees of dissident union members – the so-called “free ride” argument. These justices – liberal/progressives before anything else – chose to ignore that Free Speech is an individual right that the government cannot waive – even when the government is run by Democrats. They should be impeached for such a blatant trashing to the Constitution. As I noted in a column written previously:

“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.”

And finally, what will the impact of Janus be on individual public employees? Well, there will be a large bloc of employees who will get an automatic raise because federal, state, and local governments will no longer deduct union dues from their paychecks. Over the long run there may be opportunities for merit based raises and promotions that are now denied to them. And they won’t have three hundred pound, hairy beasts (and that just the women) berating them for failing to adhere to union orthodoxy.

But most of all they will have the clarity of knowing that they won’t have to pay to support candidates and causes that they actually oppose. God Bless the First Amendment and its Freedom of Speech.

What better gift is there with which to celebrate the Fourth of July.