More states are taking the necessary steps to protect the First Amendment rights of public employees. On April 22, Indiana Gov. Eric Holcomb signed a bill that makes Indiana the first state to take legislative action to bring itself into compliance with the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME. The question now is whether other states will take similar steps to ensure that the First Amendment rights of public employees are protected.
Indiana SB 251 is designed to give workers an informed choice about whether to support a union. It requires that, before joining and paying a union, school employees are given notice of their First Amendment rights to either join or refuse to join a union. Employees are still free to join the union, but those who do will need to directly inform their employer, thereby removing schools from the troubling position of having to take a union’s word that school employees want to pay them. Employees also are not obligated to pay a union if they withdraw membership, putting an end to schemes designed to trap school employees into paying dues even after they leave.
In short, SB 251 ensures that no money is taken from a school employee’s paycheck without their knowing, voluntary and affirmative consent.
These principles were established by the Supreme Court in Janus, which held that forcing public employees to financially support a union violates their First Amendment rights. The court said that before dues can be taken from a public employee’s paycheck, that person must give “clear and compelling evidence” of consenting to waive this constitutional right.
Other states have taken steps to protect Janus rights through administrative action, but Indiana was the first to do so through legislation. In Alaska, Gov. Michael Dunleavy issued an executive order requiring the state to implement these rights after an attorney general’s opinion determined the state was not offering adequate protections. Texas Attorney General Ken Paxton has issued a similar opinion, and Michigan enacted Janus protections for its state employees through an administrative rule change. Now, Indiana joins those states that have recognized the importance of protecting public employees’ First Amendment rights.
These are positive developments, but too few states are acting quickly on this issue of fundamental fairness. The result is money coming out of the paychecks of teachers, police officers, firefighters and other public employees to pay dues to organizations that may not support their views.
Take teachers, for example. In 2020, the National Education Association (NEA) spent $3.3 million on political activity. Of that amount, $3.22 million was spent to support Democrats, while a meager $122,550 was spent to support Republicans. Put another way, that’s 96.39 percent in favor of Democrats. And the NEA isn’t alone in engaging in lopsided political spending. The American Federation of Teachers (AFT) spent $3.9 million on politics in 2020, but only $14,110 of that total was spent to support Republicans. That means that 99.64 percent of the AFT’s political spending went to Democrats. It strains credulity to believe that only 0.36 percent of teachers, or even AFT members, are Republicans. And those teachers who are Republican may not want to continue to fund an organization that is one of the most significant donors to the causes they personally oppose.
No employee should be forced to fund the political speech of another, particularly if that speech is contrary to the employee’s beliefs. This is precisely why bills protecting Janus rights are so important. Public-sector workers have a choice about whether to support a union (and its political spending), and they deserve to be able to make that choice on a fully informed basis. Too often, workers end up funding causes they oppose simply because they are not aware that they have the right to refuse to do so. States that enact Janus legislation avoid this pitfall by plainly telling their workers about their First Amendment rights and then letting them choose whether to support a union financially.
There is no reason that workers should not be trusted to make this choice on a fully informed and voluntary basis. For this reason, other states should look to Indiana’s example and work to support and protect workers through similar legislation.
Steve Delie is the director of labor policy and Workers for Opportunity at the Mackinac Center for Public Policy in Midland, Mich.