After Janus, What’s Next?

In one of the most important—and closely-watched—cases decided during the 2017-18 term, Janus v. AFSCME, the U.S. Supreme Court overruled Abood v. Detroit Board of Education [1] and held that requiring government employees to pay “agency fees” to labor unions as a condition of their employment violates the First Amendment. Janus was a blockbuster decision in its own right, eliminating forced assessments from public employees, but also has far-reaching potential consequences in other areas.

By recognizing the inherently political nature of public sector unions—which exist to influence government spending decisions, in addition to lobbying, political advocacy, and electing candidates sympathetic to their interests—the Court in Janus opened the door to First Amendment challenges to other common practices, such as taxpayer subsidies to public employee unions in the form of “release time” provisions.

For 41 years, Abood—by treating government employee unions as identical to their private sector counterparts, despite the presence of state action—had largely insulated public sector unions from legal challenges, even as they rose to become one of the most powerful forces in American politics.

In decisions leading up to Janus, the Court had severely criticized the reasoning of Abood, which had erroneously applied labor law precedents developed in the private sector to the wholly different context of public employment. In Harris v. Quinn, [2] for example, the Court scathingly described Abood’s analysis as “questionable,” and “troubling,” and found that the Abood Court had “seriously erred” in its interpretation of prior precedents and “fundamentally misunderstood” those precedents. Justice Alito’s opinion for the Court in Harris v. Quinn observed that

Abood failed to appreciate the difference between the core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech involuntarily funded by their counterparts in the private sector. In the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector…. Abood failed to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends. In the private sector, the line is easier to see. Collective bargaining concerns the union’s dealings with the employer; political advocacy and lobbying are directed at the government. But in the public sector, both collective-bargaining and political advocacy and lobbying are directed at the government. (Emphasis added.)

Two years earlier, in Knox v. SEIU, [3] the Court had characterized the holding of Abood as “something of an anomaly.” In truth, Abood was a travesty from the day it was decided.

The Court’s 5-4 decision in Janus, written by Justice Alito, concluded that public sector collective bargaining entails speech that is “overwhelmingly of substantial public concern,” and that compelling non-members to subsidize the union’s inherently-political activities violates their free speech rights. Citing the landmark decision in West Virginia Board of Education v. Barnette, [4] the Court in Janus stated that “Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command.” Janus drew no distinction between direct coercion of speech (such as requiring dissenters’ recitation of the Pledge of Allegiance) and compelled financial support of objectionable beliefs.

The key holding of Janus—deeming the activities of public-sector unions to be inherently political—has momentous consequences under well-established caselaw. First Amendment precedents prohibiting compelled speech are broad and may invalidate any coerced payments to public-sector unions or similar groups.

With Abood overruled as a precedent, what’s next? If the compelled payment of agency fees violates the free speech rights of government employees, taxpayer subsidies of public sector unions should likewise be unconstitutional. In Janus, the Court compared public sector unions to a political party, and indicated that the First Amendment would not permit a state law requiring all residents to sign a document expressing support for a political party’s platform. Compelled financial support is equally problematic, the Court held in Janus, echoing prior holdings in Knox and Ellis v. Railway Clerks: [5]

As Jefferson famously put it, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.” A Bill for Establishing Religious Freedom, in 2 Papers of Thomas Jefferson 545 (J. Boyd ed. 1950) …. We have therefore recognized that a “significant impingement on First Amendment rights” occurs when public employees are required to provide financial support for a union that “takes many positions during collective bargaining that have powerful political and civic consequences.” (Internal quotes and citations omitted.) [6]

Assuming that public employee unions are inherently political, that collective bargaining in the public sector entails political speech, and that compelled financial support of political speech implicates the First Amendment, the reasoning of Janus logically extends to direct payments of taxpayer funds to subsidize the operations of public sector unions. One of the biggest subsidies is the widespread but little-known practice of government employers paying the salary and benefits of union officials even though they exclusively perform union duties.  This practice, variously called “release time,” “official time,” or “association business leave,” is common at all levels of government—federal, state, and local—and is often sought by public-sector unions in collective-bargaining agreements.

This practice, sometimes described as “union time, taxpayer dime,” allows government employees who are also full-time union officials to collect their full salary without rendering any services on behalf of the public; to the contrary, union officials actively work against the interests of the taxpayers through labor negotiations, grievance adjustment, lobbying, and political advocacy. But for the hidden “release time” subsidy, unions would have to compensate their officers using union dues. Instead, taxpayers are forced to fund the unions’ inherently-political operations.

Estimates of the economic magnitude of “release time” vary, and exact calculations are difficult due to its decentralized nature and limited public disclosure, but some experts believe it may amount to as much as $1 billion annually, nationwide. Under the Abood regime, the only legal challenge available to release time was piecemeal litigation under state constitutions objecting to the payments as a “gift of taxpayer funds.”  (Forty seven of the 50 state constitutions forbid gifts of taxpayer funds.)  Disclosure: I am a plaintiff in a pending lawsuit in Austin challenging release time in the city’s contract with the firefighters’ union, represented by the Goldwater Institute. I have written about the case for City Journal here and here.

In light of Janus, release time should be vulnerable to challenges as compelled speech. Imagine that governmental entities at the local, state, or federal levels were using taxpayer funds directly to pay the salaries of the top officials of the Democratic (or Republican) Party, or some other partisan group—not grants, but actual payments to party officials, personally. There is no conceivable public benefit for such subsidies, and release time amounts to the same thing because they convert full-time public employees into political advocates working at taxpayer expense. Being forced to subsidize public sector unions is different than a taxpayer objecting to the government’s internal use of tax revenue because, as the Court found in Janus, the union is an independent political actor. The government is the representative of the polity; a labor union is not.

A certain matter of coercion is implicit in the notion of government, and the obligation to pay taxes is, as Justice Oliver Wendell Holmes pithily noted, the cost of civilized society. [7] Citizens enjoy a reciprocal voice in governmental decision-making: the right to vote. Release time provisions, like compelled agency fees, are a naked transfer of funds for illicit purposes—to subsidize political speech and activism. They should be challenged as such.

An upcoming post will discuss the application of Janus to compelled financial support of bar associations engaged in political activities, the subject of Fleck v. Wetch, an Eighth Circuit decision [8] which the Supreme Court recently overturned “for reconsideration in light of Janus.”

[1] 431 U.S. 209 (1977).

[2] 573 U.S. ___, 134 S. Ct. 2618 (2014).

[3] 567 U. S. 298, 311 (2012).

[4] 319 U.S. 624, 642 (1943) (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”).

[5] 466 U. S. 435, 455 (1984).

[6] Janus, slip opinion at page 9.

[7] Compañía General de Tabacos de Filipinas v. Collector of Internal Revenue, 275 U.S. 87, 100 (1927) (Holmes, J., dissenting).

[8] 868 F.3d 652 (8th Cir. 2017).