Consent matters. But you don’t have to take my word for it — just ask the Supreme Court of the United States. In Janus v. AFSCME, the Court’s five-member majority held that the First Amendment protects public-sector employees — including petitioner Mark Janus — from being compelled “to subsidize private speech on matters of substantial public concern” without prior affirmative consent.
In so ruling, the majority upended its own “poorly reasoned” 41-year-old precedent in Abood v. Detroit Board of Education, a Carter-era decision that the Janus Court rightly recognized “has led to practical problems and abuse.”
{mosads}Under the “consent-free-zone” blessed by Abood, Illinois law required all of its public employees to pay an “agency fee” to the union whether they joined the union or not. That agency fee ostensibly could not pay for expenses related to political candidates or elections, but could be used to subsidize the union’s lobbying efforts, advertising, and even its litigation costs.
Mr. Janus objected. He refused to join the union because he opposed many of its public policy positions that were advanced by those same fees — his money — and he did not believe that the union represented his interests or served his needs.
Nevertheless, state law required Mr. Janus to either pay his monthly agency fee to fund policy positions he did not support, services he did not use, and lawyers that were actively fighting him in federal court, or else he could be fired.
Such a “choice” has always been at odds with the freedoms guaranteed by our Constitution. In the spirit of better late than never, Justice Alito’s opinion says as much: “Compelling individuals to mouth support for views they find objectionable,” writes Alito, “violates [a] cardinal constitutional command, and in most contexts, any such effort would be universally condemned.”
The significance of the Janus decision in securing First Amendment rights is hard to overstate. At issue was whether the First Amendment “permit[s] the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.”
The Janus decision answered that question with a resounding “no.” Accordingly, American workers — union and non-union — should stand and cheer. For the Court to have answered otherwise would have permitted governments across the country to continue to compel “free and independent individuals to endorse ideas they find objectionable.” It is this same sort of compulsion that Thomas Jefferson famously called “sinful and tyrannical.”
After Janus, non-union public-sector employees will be free from such tyrannies and will no longer have an agency fee deducted from their paychecks without their express consent.
Those who would oppose the freedoms extolled in Janus will undoubtedly continue like the boy who cried “wolf!” to warn us of the imminent dangers lurking in a post-Janus world. Unions, they will prophesy, will fold, employees will be powerless, “labor peace” will turn to bloody “labor war.”
The Supreme Court rejected these unfounded fears, observing that whatever the labor market conditions may have been before Abood, experience now tells us that labor peace can be maintained without trampling on the First Amendment rights of public servants.
Rather than killing public unions or ending labor peace in our time, the Janus decision offers public unions the chance to be more responsive and competitive to attract and retain truly voluntary members. Doing so will strengthen their memberships, improve the quality of their representation, and refocus their efforts on bolstering job satisfaction and working conditions for their members.
More responsive unions funded by members who affirmatively consent and an abiding respect for First Amendment rights are principles that all Americans can applaud regardless of where they fall on the political spectrum. We are a nation founded upon the principle of the consent of the governed.
In Janus, the Supreme Court declared that denying public employees the ability to consent for the past 41 years was unjust, unconstitutional, and — therefore — could no longer stand.
Robert Alt is the president and CEO of The Buckeye Institute in Columbus, Ohio.