Most of the coverage of Janus v. AFSCME, like this recent piece in USA Today, simply (and perhaps correctly) assumes that the five Republican appointees on the Supreme Court will use the case to overturn Abood v. Detroit Board of Education, the 1977 case upholding fair share fees for public sector workers. But, now that the briefs have been filed, it is more clear than ever that those five Justices will have to put their thumbs heavily on the scale for the petitioner, Mark Janus, to prevail.
At least three doctrines that would ordinarily garner the support of some or all of the five Republican appointees weigh in favor of reaffirming Abood: originalism, deference to governmental employers, and federalism. Let’s start with originalism. As AFSCME points out in its brief, the framers did not recognize any right of public employees to object to conditions placed upon their employment, even conditions that restricted the exercise of constitutional rights. Next, Janus is arguing that all bargaining with a public employer, and even all resolution of individual grievances, is the equivalent of lobbying, and therefore compelled subsidization of that speech raises a serious First Amendment issue. But, in order to avoid having courts second-guess managerial decisions, the conservative Justices (except for Gorsuch, who wasn’t on the Court yet) have all endorsed the idea that the grievances of public employees are not entitled to First Amendment protection. Then, there is federalism. Almost half the States authorize agency fees for public sector workers covered by collective bargaining agreements. As a brief filed on behalf of twenty states and the District of Columbia pointed out, the decision to authorize agency fees represents a judgment by those States that allowing for agency fees serves the State’s managerial interests. The brief argues that authorizing agency fees helps develop “a collaborative labor-management relationship that promotes labor peace and ensures the delivery of high-quality services.” Just recently, Justices Gorsuch, Kennedy, Thomas, and Alito filed a dissent in a case involving the tolling of statutes of limitations, in which they criticized the majority for failing to acknowledge that State governments “would seem better positioned than we to know their own interests.” Again, ordinarily, the conservative Justices would be exceedingly deferential to arguments regarding the rights of States to manage their own affairs.
There are other reasons why Janus’s claims should fail. One of the most interesting amicus briefs was filed by two law professors, Eugene Volokh and William Baude. Volokh and Baude challenge the entire premise underlying Janus’s case. They assert that there is simply no First Amendment right not subsidize speech that you disagree with. They start with the obvious point that there is no First Amendment objection to taxation that is used to fund objectionable speech. Then, they turn to the argument that compelled support of a private association is somehow different from compelled support of the government. In response, they point out that in other circumstances, the Court has allowed the government to selectively fund private programs – for instance, some states fund private pregnancy centers that advocate for women to bring unwanted pregnancies to term. Next, they address the argument that the analysis should be different where the government compels individuals to hand over money directly to a private party. They offer several examples where the government does exactly this: state governments require lawyers to purchase continuing education programs covering specific issues, states require recipients of occupational licensing to purchase hundreds of hours of instruction (speech), and most states require drivers to purchase car insurance even though insurance companies spend some of that money on speech.
If Janus can manage to overcome the arguments put forth by Professors Baude and Volokh, he then has address the argument in the AFL-CIO’s brief that compelled subsidization is not the same as compelled speech or compelled association. The AFL-CIO shows how the compelled subsidization that Janus complains about is the same as two other forms of compelled subsidization that the Court has upheld: funding for mandatory State bar associations, and agricultural marketing orders that require all growers to contribute to marketing campaigns as part of a comprehensive regulatory scheme. As the AFL-CIO explained, “the government may … seek advice on its program from the affected group of individuals and may require the group to share the cost of giving that advice.” Under existing case law, compelled subsidization is only problematic if it is unconnected to a legitimate government purpose.
On the question of whether fair share fees serve a legitimate government purpose, there was a compelling brief filed on behalf of thirty-six economists and law professors, including three Nobel laureates. This brief addressed the free-rider problem observed by Mancur Olson in The Logic of Collective Action, although as they point the phenomenon was observed long before Olson’s book was published. The brief notes that “free riding has been observed and analyzed in all sorts of situations, by all sorts of economists – left, right, and center.” Abood was based in large part on recognition that in the absence of fair share fees, employees could act as free riders, retaining all the benefits of union representation while shouldering none of the costs. Janus insists that instead of acting as free riders, he and other non-members receive no benefit from union representation. Of course, not only is there no factual record in this case, but the complaint that started this litigation contains no factual allegations to support this conclusion. On the other hand, the economists’ brief provides a current example of free riding by public employees. Iowa recently passed a law requiring public employees to face recertification elections every two to three years. For workers represented by AFSCME Iowa Council 61, 83% voted to recertify the union, and only 2% voted against the union, with the remaining 15% failing to vote. Yet, 71% of the employees are not members of the union and do not pay fair share fees. In other words, the workers have clearly demonstrated their support for continued union representation, yet a large majority have taken advantage of the opportunity to get the benefits of that representation without paying for it.
This case, which seeks to upend public sector labor relations affecting millions of workers across the country, rests on Janus’s belief that “AFSCME’s behavior in bargaining does not appreciate the current fiscal crises in Illinois and does not reflect his best interests or the interests of Illinois citizens.” As AFSCME points out in its brief, there is no record of Janus ever disclaiming any raise or economic benefit that the Union has obtained for employees. Nor is there any evidence that Janus had ever asked AFSCME to change any of its bargaining positions. Furthermore, many of the issues that arise in bargaining do not necessarily involve efforts by a union to impose higher costs on the employer. AFSCME explains in its brief that bargaining concerns matters such as the procedure for requesting vacations, and the scheduling of lunch breaks. Janus is also trying to avoid paying AFSCME for the cost of representing workers in grievance proceedings without any factual basis for his assertion that all grievance proceedings are “political.”
The Trump Administration and a lot of powerful interest groups have lined up behind Janus. But, they can only do so much to dress up his flimsy claims. If the Justices adhere to principles they have previously espoused, and pay attention to the facts (or lack thereof), this should be an easy case.