Janus v. AFSCME: Stopping a 'Corrupt Cycle of Political Dependency' That Silences Free Speech

On Monday, the U.S. Supreme Court hears oral arguments in the case Janus v. American Federation of State, County, and Municipal Employees (AFSCME). The case examines whether or not AFSCME or any other union can force public employees to pay a portion of union dues — called “agency fees” — even if they refuse to join the union. The case centers on employees’ free speech and free association rights to refuse to support organizations with which they disagree.

Perhaps as importantly, the issue also involves the ability of these unions — which are also political activist groups — to become corrupt and enrich themselves at the expense of taxpayers and employees. Public employee unions are arguably inherently political since they are not just bargaining with any private employer, but with the government.

“Telling somebody to pay the union is compelled speech, compelled political speech, which is absolutely prohibited by the First Amendment,” David Dewhirst, chief litigation counsel for the Freedom Foundation, told PJ Media. He argued that public employee unions are inherently political, so forcing any worker to pay agency fees constitutes compelled political speech.

In 1977, the Supreme Court made a distinction between union dues and non-negotiable agency fees, which supposedly cover the cost of collective bargaining and prevent workers from becoming “free riders” — getting the benefits of a union without paying for its bargaining. The Court ruled that agency fees could be separated from the political aspects of a union, but Dewhirst claimed that this distinction has become unworkable.

“We’ve had case after case where the Court’s trying to make sense of this standard, trying to draw the line between the political and the non-political,” the Freedom Foundation lawyer said. “We don’t think it’s a workable line.”

“The problem is, even though that fee is not supposed to allow the union to spend political dollars in their names, everything a public sector union does is political, because they bargain with the government over employee wages and working conditions,” Dewhirst argued. “At their core, public sector unions are strange, because you don’t have an employee representative bargaining against an employer, a business owner. You’re bargaining against the people.”

The Freedom Foundation counsel echoed the concerns of President Franklin Delano Roosevelt, who warned against the very idea of public sector unions. “You’ve created a negative dimension to this relationship, where public servants are trying to stick it to the public,” he said.

“It’s spawned all types of corrupt problems like the undue influence unions are able to wield in states and indeed across the nation, because of the largesse they procure from these people, unwittingly,” Dewhirst explained.

The Freedom Foundation lawyer referenced Washington Governor Jay Inslee, whose 2016 re-election campaign benefitted from more than $700,000 from unions at a time when Inslee himself was negotiating with those very unions.

“It creates this corrupt cycle of political dependency, where government continues to grow because more pay leads to more public employees, which produces more money in union coffers, and at the same time politicians who encourage that type of government growth are thrust into office again and again because of the power wielded by these unions,” Dewhirst told PJ Media.

In other words, workers like Illinois child support specialist Mark Janus are forced to pay to support unions that entrench Democrats who prop up unions, and on and on the corrupt cycle goes. For this reason, Janus took over the lawsuit against AFSCME.

Two years ago, a similar case reached the Supreme Court, but the death of Justice Antonin Scalia led to a 4-4 deadlock. The current challenge began with a lawsuit filed against a state union by Illinois Republican Gov. Bruce Rauner. Janus is carrying on the fight after Rauner removed himself from the case.

“Nobody asked me if I wanted to pay these dues. I never got the opportunity to say no,” Janus told NBC News.

Dewhirst insisted that this case is not about destroying corrupt unions or weakening Democrats, but holding unions them accountable and protecting workers’ First Amendment rights.

“If you have a service that members or employees want to pay for, then employees will pay for it,” the Freedom Foundation lawyer said. “It’s accountability day — time for them to stop being able to take advantage of thousands and thousands of public employees who want no part of them, in order to advance the union and union bosses and their political agendas.”

He made the issue concrete, comparing forced contributions to unions with forced payments to the National Rifle Association. “Can you imagine the public outcry if people were forced to fund the NRA until they went through an opt-out process?” Dewhirst asked.

The Freedom Foundation has helped empower employees to opt out of funding unions. Last year, the nonprofit released data about its work in Oregon. A full 11,399 of the 28,667 homecare and personal support workers who had been forced into the SEIU union 503 have decided to leave the union, costing the organization $10 million. Many workers had no idea they had the freedom to leave the union, until the Freedom Foundation told them.

No one should be forced to support an organization with which he or she disagrees. The First Amendment prevents this compelled speech, and it is particularly important for the Supreme Court to strike it down given the cycle of corruption it enables.

Watch Dewhirst’s interview with PJ Media’s Tyler O’Neil below.