First Amendment requires that workers have a choice on union membership

On Wednesday, the Supreme Court finally announced a decision on the much anticipated Janus v. American Federation of State, County and Municipal Employees (AFSCME) case. It will prove, I suspect, to be one of the most consequential Supreme Court decisions in a generation, given the impact it will have on American society.

And make no mistake, that impact will be a good one.

Mark Janus, the plaintiff, is employed in state government in the state of Illinois, specifically at the Illinois Department of Healthcare and Family Services. Like all public employees, he was given the option of either joining the public employee union, or not joining and instead paying an “agency fee” of $45 per month to that union.

At the heart of the concept of agency fees is, supposedly, the unfairness of “free riders,” which would be employees who benefit from the union’s negotiations, but do not have to pay for them like union members do.

That is an excuse, however, meant to increase funding to unions. The reality is, if free riders threatened unions, unions would become less effective, membership would decline, and with that membership decline would be a decline in wages and benefits for everyone.

Ask yourself, though, what would happen if that was the case. Would not workers then see the value of unionization, and begin to view union dues as a worthwhile investment? Would there not then be a resurgence of union membership from a worker base that sees that value?

This has always been the core of the problem with forced unionization, and the forced payment of agency fees. If unions had value, than demonstrating that value should be of relative ease. If free riders destroyed the system, workers would suffer and unionization would reconstitute and grow again. The result would be a natural and healthy equilibrium.

In other words, the key here is choice, and that choice was at the heart of this decision. Does a person have the ability to choose to fund or not fund an enterprise that engages in political advocacy that person disagrees with?

Janus argued that he did have that right, under the First Amendment. To him, the fees infringed on that fundamental right, because his money was going to a public employee union that engaged in contract negotiations with the government, which was by its very nature a type of political advocacy.

And make no mistake, it absolutely is. Funding a union that engages in political lobbying is no different than funding a political party or political action committee.

The counter argument contained in the dissent penned by Justice Elena Kagan was, frankly, bizarre.

“And maybe most alarming,” she began, “the majority has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy. Today is not the first time the Court has wielded the First Amendment in such an aggressive way … And it threatens not to be the last.”

She continued: “Speech is everywhere — a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices.”

It seems not to have occurred to Kagan that defense of “citizens’ choices” means more First Amendment, not less. Nothing about this decision precludes choice by any worker. In fact it only increases them.

Ironically, it was those very same “black robed rulers” who shared Kagan’s philosophy who denied workers the choice to not pay agency fees in the 1977 case Abood v. Detroit Board of Education.
Fortunately, Kagan was writing in dissent rather than the majority. The decision affirmed what should have been apparent to any rational thinking person before: You should never be compelled to facilitate speech you do not wish to facilitate.

Forcing, as a condition of employment, a person to hand over the fruits of their labor to an organization that they do not desire to join, which will be used to speak and advocate for causes and candidates that that employee does not wish to speak or advocate for, is an abhorrent violation of that person’s First Amendment rights.

The liberal justices of the Supreme Court may not like it, but the result of the Janus decision will be felt for decades and will have a transformative impact on human liberty in America. That is a decidedly good thing for the republic.

Matthew Gagnon of Yarmouth is the chief executive officer of the Maine Heritage Policy Center, a free market policy think tank based in Portland. A Hampden native, he previously served as a senior strategist for the Republican Governors Association in Washington, D.C.