On the third day of Senate Judiciary Committee hearings for Supreme Court nominee Brett Kavanaugh, Sen. Mazie Hirono (D-Hawaii) echoed Justice Elena Kagan in attacking Janus v. AFSCME — a key free speech case — as “weaponizing the First Amendment.” While focusing on unions, Hirono entirely overlooked the grievous injustice of forcing workers to subsidize unions they refused to join, and may vehemently disagree with. One woman was forced to pay the union that campaigned against her husband.
“With its decision in Janus v. AFSCME, in a 5-4 decision, five of the justices overturned decades-old precedent, a case called Abood [the 1977 case Abood v. Detroit Board of Educators], that workers depended on for fair salaries and basic rights,” Hirono declared.
She quoted Justice Kagan twice, first saying that “5 justices overturned Abood ‘because they wanted to,'” then arguing that the Supreme Court has been “weaponizing the First Amendment.”
“Just last year, the First Amendment was used to advance a political agenda against workers and women’s health and reproductive rights,” Hirono alleged. She then launched into a conspiracy theory suggesting conservative organizations are out to make life worse for “workers, women, and everyday Americans.”
“The Janus decision is important here because it shows how your nomination works in a larger campaign that groups like the Federalist Society and the Heritage Foundation have been waging for decades. Their goal is to undermine well-established Supreme Court precedent that protects workers, women, and everyday Americans,” the senator alleged.
All of this is utterly false fear mongering and scare tactics.
Besides Janus, Hirono attacked the ruling in NIFLA v. Becerra. This case “weaponized the First Amendment ” against “women’s health and reproductive rights” by striking down a California law that would have forced pro-life pregnancy centers to advertise for abortion clinics.
In no way did NIFLA damage “women’s health and reproductive rights.” In fact, the case enabled pregnancy centers to stay open, allowing them to continue helping women facing crisis pregnancies. The pro-life centers would have faced heavy fines and would likely have shut their doors rather than become abortion referral agencies.
Similarly, Janus involved government forcing workers to subsidize speech they disagreed with. Under the 1977 case Abood, unions could demand agency fees from workers, even if the workers refused to join the union. The Court ruled that unions provide benefits to workers, even if the workers did not join the union. To prevent the “free rider” problem, the Court ruled that unions could impose agency fees, so long as they remained separated from the political aspects of a union.
With public sector unions, however, any bargaining is inherently political. Higher wages means higher taxes, and workers are literally bargaining against the people’s elected representatives. For this reason, even notorious New Deal president Franklin Delano Roosevelt opposed public sector unions.
Janus v. AFSCME involved Illinois child support staffer Mark Janus, who refused to join the local union, AFSCME Council 31. Janus refused to join the union, but he was still forced to pay “agency fees.”
Worse, the supposedly non-political “agency fees” at AFSCME went to promoting Hillary Clinton at the union’s 2016 convention. AFSCME Council 31 spent $268,855 for “Convention expense,” taking these funds from the “non-political” agency fees, the Competitive Enterprise Institute (CEI) noted.
The 2016 AFSCME convention featured a lengthy “AFSCME FOR HILLARY” program, a speech from Clinton herself, and the union president leading attendees in booing Donald Trump. The convention even adjourned early to enable members to participate in a “TRUMP HOTEL DIRECT ACTION” protest march for which the convention chartered buses.
Janus rightly won his case, but an even more malicious case was also settled in the aftermath of Janus.
Debora Nearman, a systems analyst for the Oregon Department of Fish and Wildlife, refused to join her local union, SEIU 503, because she opposes the unions’ positions advanced in collective bargaining and she opposes the union’s political positions. Specifically, Nearman is a devout Catholic and strongly opposes SEIU’s support for abortion and funding of pro-choice political candidates.
In 2016, the situation became far worse, however. That year, the SEIU forced her to pay $1,258.91. She fought to opt out as much as possible, and received a refund of $273.68 for nonchargeable expenses. That same year, her husband, Mike Nearman, ran for State Representative. He won his election, but the union spent $53,260 to oppose him.
Yes, Debora Nearman was forced to pay nearly $1,000 to an organization that actively opposes her religious beliefs and opposed her own husband’s political campaign. But it gets worse. Nearman described the ads the SEIU funded as “disgusting,” for good reason.
She told the Associated Press (AP) that one ad showed a photo of her husband superimposed in front of a police car with flashing lights, suggesting that her husband was a criminal. Another ad hinted that he didn’t care about disabled people, even though Nearman herself suffers from a progressive neuro-muscular disease.
“I was just heartbroken to see that,” Nearman told the AP.
Nearman wrote an amicus curiae brief in Janus. In July, the SEIU settled her lawsuit against it, paying her back the nearly $3,000 she had paid in “agency fees” over the past two years.
The National Right to Work Legal Defense Foundation, which was involved in both Janus and Nearman’s case, is handling 200 other cases across the country, including a class-action lawsuit in California by some 30,000 state employees. If the 9th Circuit Court of Appeals rules in favor of the plaintiffs, they stand to be refunded more than $100 million.
By supporting unions against poor people like Debora Nearman, and by presenting a one-sided view of the issue that leaves out the plight of people forced to bankroll political organizations they disagree with, Hirono spewed the malicious lie that Janus and NIFLA involved “weaponizing the First Amendment” to victimize “everyday Americans.” In reality, these free speech decisions defended everyday Americans against overly political unions and a California law that would have turned pro-life centers into abortion referral agencies.
Hirono should apologize, not just to the five justices who decided Janus and NIFLA, but to the Federalist Society and the Heritage Foundation. Most importantly, she should apologize to Debora Nearman, who was forced to pay for an organization slandering her husband.
Follow the author of this article on Twitter at @Tyler2ONeil.
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