For almost two centuries, Thomas Jefferson has been rolling in his grave. Jefferson, in the Virginia Statute of Religious Freedom, wrote that, “To compel a man to furnish contributions of funds for the propagation of opinions which he disbelieves and abhors is sinful and tyrannical.” He knew that the right to speak freely includes the right to support speech by others, and the right to support speech by others includes, by definition, the right not to support speech by others.
Sadly, labor unions compel citizens to furnish funds for the propagation of opinions they disbelieve and abhor every day, by using the dues collected from members and “agency fees” collected from non-members to engage in political activity many of their members and non-members oppose.
{mosads}That’s what’s at stake in Janus v. AFSCME, a case heard Monday by the Supreme Court. Mark Janus is an Illinois child support specialist who’s suing the union over “agency fees” collected from non-members to cover their share of collective bargaining costs. Those “agency fees” typically run around 80 percent as much as union dues in total. Janus argues that the payments he is compelled to make are a violation of his First Amendment right not to be compelled to pay for speech he opposes.
The case is very similar to Friedrichs v. California Teachers Association, which was heard by the Supreme Court in 2016. In that case, the Supreme Court deadlocked at 4-4 after the death of Justice Antonin Scalia. Though Justice Neil Gorsuch, who replaced Scalia, was surprisingly circumspect in Monday’s argument, where he asked no questions, he is expected to tip the balance to 5-4 against the forced payment of union collective bargaining fees for non-members.
If that happens, union members and non-members alike could be freed from their current obligation to pay for political speech they oppose, and political activity by public sector unions could be severely restricted. Meanwhile, there’s also activity on the legislative front. Supporters of the right of employees to speak freely — and to withhold payment for speech they oppose — have introduced into the Employee Rights Act.
The bill has eight core provisions. It would mandate secret ballot elections to determine union representation, create union recertification elections when at least half of the originally unionized employees have left their workplace, require opt-in instead of opt-out systems for voluntary contributions to support union political operations, and change the victory threshold for a union certification election so the electoral universe is all the affected employees, rather than just those who vote in the election, and require that a union win a majority vote of the entire electoral universe, rather than just a majority of those who vote.
It would also allow employees not to provide personal information to union organizers, provide more protections from union coercion blocking decertification of an already existing union, require secret ballots for strike votes, thereby eliminating the option to vote at union meetings, where pressure is most easily brought to bear against those who are opposed, and criminalize union threats and violence.
The bill has 151 cosponsors in the House, including two members of Republican leadership, Conference Chairman Cathy McMorris Rodgers and Chief Deputy Whip Patrick McHenry. In the Senate, it has 29 cosponsors, including Majority Leader Mitch McConnell and Majority Whip John Cornyn.
Just as importantly, the House version of the bill is cosponsored by roughly 80 percent of the Republicans on the Education and Workforce Committee, the committee of jurisdiction. Further, Committee Chairwoman Virginia Foxx and Subcommittee Chairman Tim Walberg are known to support the legislation, even though following longstanding tradition, they will not add their names as cosponsors until they get ready to move the bill through committee.
Moreover, House supporters indicate that there are dozens of members who, for their own political reasons, will not add their names to the list of cosponsors, but will vote for the measure if and when it’s brought to the floor. The House GOP leadership should bring this bill to the floor, and the Senate GOP leadership should prepare to attach it to an upcoming must-pass bill, such as the anticipated omnibus spending bill that will be on the floor later in March.
Doing so would be both good policy, by freeing employees from being compelled to pay for political speech they oppose, and good politics, by reducing big labor’s political spending. The odds are that the Supreme Court will weigh in with a favorable ruling, to boot. Perhaps, finally, Jefferson will be allowed to rest quietly.
Jenny Beth Martin is chairman of Tea Party Patriots Citizens Fund.