Key win for workplace free speech prompts troubling dissent

For Thomas Jefferson, to “compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.” Fortunately, a majority on the Supreme Court agrees.  

In a long-anticipated decision, Janus v. American Federation of State, County and Municipal Employees (AFSCME), the Court held, 5 to 4, that an Illinois law exacting so-called “agency fees” from non-union member public-sector workers to pay for the union’s collective bargaining is a violation of the First Amendment.

{mosads}In an opinion that could have been written by FDR, who opposed public-sector unionization as incompatible with the “nature and purpose of the government,” the court held that public-sector collective bargaining is inherently political — the very speech the Founding Founders sought to protect — and that forcing public-sector workers to subsidize it is a violation of free speech. 

The Supreme Court reversed its 1977 decision in Abood v. Detroit Board of Education that upheld agency fees on the ground that you can separate a public sector union’s bargaining functions from its political and ideological activities. 

The reality, perhaps not as apparent in 1977, is glaringly obvious today with states in debt for hundreds of millions of dollars in unfunded pension liabilities, the result of unions bargaining with politicians they helped elect.   

In Janus itself, AFSCME sought wage increases the state could ill afford and changes in the state’s sales and income tax policies to pay for them.  And since 1977, cases have come before the court in which public-sector unions made bargaining proposals on subjects ranging from climate change and the Confederacy to sexual orientation and evolution. Not exactly non-ideological.

Janus will result in union membership losses similar to those experienced in right-to-work states — predictions run from 10 to 30 percent — as well as the loss of  agency fees. While not insignificant, it will not be the death knell for organized labor. Unions will adjust.  

The real benefit of Janus will be in the workplace. Freed from being forced to support union orthodoxy on issues such as seniority, tenure for teachers and merit pay, to name a few, non-member workers will be motivated either individually or as a group to propose innovative solutions that previously would have been stifled in the union’s bargaining.    

The remarkable skill of the media to completely miss what is important was evident in its Janus coverage. The reason for the split on the court between the “conservatives” and “liberals” was described simply as being “along partisan lines.”  It was far more significant than that. 

The conservative majority hewed to historic Supreme Court precedent that requires the state to have, at a minimum, “a compelling state interest that cannot be achieved through less restrictive means.” 

The four liberals or progressives in dissent devised their own test, foreign to Supreme Court case law on free speech: The government need only have a “reasonabl[e] . . . need[]” for the infringement. 

For the dissent, the court’s enforcement of a state worker’s right not to take positions he disagrees with in collective bargaining was “weaponizing the First Amendment,” “using it as a sword to undermine Democrat governance.”  

But constitutional rights were not intended to be put up to a vote of the general public or its elected representatives.  “[T]he very purpose of the [First Amendment]was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”

The Janus decision has an important lesson in workplace freedom for the National Labor Relations Board (NLRB). To protect public-sector workers from the extraction of dues and fees against their will, the Supreme Court required that no agency fee or other payment to the union be deducted from an employee’s wages “unless the employee affirmatively consents.”  

The NLRB has no such protection for the private-sector unionized workers. Workers must formally object to prevent fees for the union’s political expenses being deducted from their wages.

To protect the unions’ coffers, during the Obama years, the NLRB Democrat majority purposely manipulated a case decision to prevent this unauthorized deduction of union fees from reaching the Supreme Court. It is time for the NLRB to provide that protection by rule. 

Ronald Reagan warned that the loss of liberty “is only one generation away.” Janus is a chilling reminder that it can also be only one Supreme Court justice away.  

Whatever concerns one may have with Donald Trump’s leadership style, had the president not nominated and the Republican Senate (with a few votes from across the aisle) not confirmed Neil Gorsuch to the Supreme Court, the dissent’s restrictions on our First Amendment freedoms would be the law of the land.

Peter Schaumber is a former chairman and member of the National Labor Relations Board appointed by President George W. Bush.