Freedom Foundation

Janus ruling rights a 41-year-old wrong

Abood was wrongly decided and is now overruled.”

And with that, Justice Samuel Alito and the Roberts Court finally purged the constitutional anomaly that forced subsidization of speech to public-sector unions.

On Wednesday, the U.S. Supreme Court, in a 5-4 decision, finally issued a ruling validating what the Freedom Foundation has been preaching for over 25 years: Compelling individuals to support views with which they disagree violates the core tenets of the First Amendment.

The primary question in Janus v. AFSCME was the use of the agency-fees in the public employment sector. Prior to the holding in Janus, an outdated and legally inconsistent case, Abood v. Detroit Board of Education, had controlled public-sector employment.

Under Abood, an individual who disagreed with their union could “opt out” of membership and pay a reduced fee to cover the union’s statutory privilege of representing them in collective bargaining negotiations. In theory, this so called “agency fee” was charged only to pay for actual bargaining activities and to ensure the individual was not forced to subsidize speech he or she did not agree with.

The only problem is that unions routinely used these fees to support their political activity, which include lobbying government for increases in wages and pensions.

Over the past 40-plus years, the decision in Abood has slowly been eroding, as the court actively moved to rein in the decision’s expansive and questionable validity, particularly in the recent cases of Harris v. Quinn and Knox v. SEIU.

Janus is simply the next logical and conclusive step.

Despite what pro-union critics of the decision have claimed, this is not about corporate interests. Nor is it anti-worker. It’s about nothing more or less than protecting the First Amendment rights of public employees.

Janus affirms the obviously logical premise that states should not be able to presume workers want to financially support a labor union or its actions.

In short, the decision protects and solidifies the constitutional rights of public employees. And it does so in two ways.

First, it does away with the concept of agency or “fair-share” fees for workers who choose not to join a union. No longer are employees punished for simply exercising their constitutionally protected rights.

Second, it held that public employees must affirmatively choose to join a union.

Prior to Janus, a public employee whose job was subject to a collective bargaining agreement was required, as a condition of employment, to join the union the government had designated as the employees’ “exclusive representative.”

It was simply presumed the employee would join the union and would want to do so. Imagine if it were presumed we all wanted to join the local gym and suddenly membership fees started to be taken out of your paycheck – whether you wanted to join or ever went to the gym at all.

Once an employee was enrolled, if he or she wanted to leave the union and was brave enough to try, they would have to go through a deliberately tedious opt-out process.

“Opting out” typically required the person to submit a written request only during a certain period of the year – usually based on the date the CBA went into effect or when the employee first went through the enrollment process.

As Justice Alito originally noted in Knox, the opt-out requirement created a financial “boon for unions,” because once a public employee made the choice not to belong to the union, it could take months to successfully “opt out” and stop the fees from being deducted from their paychecks.

During that time, the unions were still allowed to line their coffers with that money.

The Janus decision properly held that requiring public employees to go through a burdensome opt-out scheme is not only unwarranted but also unconstitutional.

Now, unless employees clearly state that they want to be in the union, no individual will automatically be enrolled and no money can be deducted from a non-union member’s wages without first obtaining the employees’ permission.

Janus does not, however, restrict individuals from joining a union or paying full union dues. If workers choose to support or join a union, they remain free to do so.

In fact, contrary to much of the union rhetoric, Janus is distinctly pro-worker, since it guarantees employees’ constitutional rights are protected when they choose a career of public service.

In Roman mythology, Janus is the god of beginnings and transitions. By the same token, after nearly a half-century of wrongful analysis, the decision in Janus marks a new beginning for employee freedom.