Mark Janus’s lawyers are desperate to have the Court decide Janus v. AFSCME without considering any facts.  Janus is an Illinois state employee, who is represented by AFSCME Council 31.  Like all other employees in his bargaining unit, he is required to pay fair share fees to the union to cover the costs of providing representation.  Janus wants to Court to rule that these fees are unconstitutional without even considering how AFSCME spends these fees.  Janus also thinks that somehow the Court can decide that his refusal to fund union speech on workplace issues is protected by the First Amendment without overturning a series of cases holding that the grievances of public employees are not a form of speech protected by the First Amendment.  In addition, Janus thinks that merely by saying so, the Court can decide that states have a compelling interest in requiring lawyers to pay bar dues to mandatory bar associations, but no similar compelling interest in requiring public employees to pay fair share fees.  Janus’s lawyers realize that the more the Court considers actual facts, the harder it is for them to win their case, so their approach has been to insist that the case can be decided without any factual record.  But, the oral argument made clear that if the Court is not prepared to simply reaffirm its forty-year old precedent in Abood v. Detroit Board of Education, the only responsible move is to remand the case to develop a factual record.

Much of the oral argument focused on whether the Court can rule in Janus’s favor without overturning the line of cases holding that the grievances of public employees are not a form of constitutionally protected speech.  Janus’s lawyer tried to argue that the difference was the scale – a single employee’s grievance isn’t a matter of public policy, but when taken in the aggregate, they affect matters of public policy.  There are several flaws with this argument.  First, and perhaps most importantly, the implication would be that the constitutionality of fair share fees would depend upon the size of the bargaining unit.  For instance, in a state as large as Illinois, with a population of 12.8 million, even expenditures of millions of dollars may not have real public policy significance.  Janus’s lawyer relied on a single outlier $75 million arbitration case to argue that grievances are matters of public concern.  But even that case is less significant than it appears.  Between its operating and capital budgets, Illinois spent a total of over $68 billion in Fiscal Year 2017.  So, the $75 million (six dollars per resident) is not even a rounding error.  In addition, if grievances must be considered in their aggregate to determine the applicability of the First Amendment, that principle would have to run both ways.  For instance, an employee who filed a grievance seeking an additional $100 would have a First Amendment claim because if the State owed all of its employees $100, then millions of dollars would be at stake.

The Solicitor General asked the Court to entirely ignore the question of whether compelled funding of speech regarding grievances raises a First Amendment issue.  Instead, he insisted that the Court could strike down fair share fees simply by focusing on the cost of collective bargaining.  But, here’s where facts matter.  The lawyer representing Illinois pointed out that the majority of fair share fees often go not to negotiating collective bargaining agreements, but to providing day-to-day representation and settling individual grievances.  Yet, here not only is there no record, but there aren’t even any factual allegations about how AFSCME Council 31 spends its fair share fees.  Even Justice Kennedy, who seemed clearly in Janus’s corner, suggested that the outcome might change depending upon the percentage of fees that go toward matters that he referred to as “highly political.”

The Court also doesn’t have before it any facts about how public employee bargaining actually works.  I know from personal experience that bargaining over non-economic issues is often far more time-consuming than bargaining about economic issues. AFSCME explained in its brief that it bargains over such mundane matters as parking, lunch break schedules, promotions, safety equipment, grooming standards, and vacation scheduling.  There are no facts in the record about the relative costs of bargaining over these types of issues versus bargaining over wages and benefits.  And, even when unions bargain about wages and benefits, AFSCME’s lawyer pointed out at the oral argument that sometimes states set their budgets before bargaining happens, and other times states refuse to ratify contracts that don’t fit within the budget, so bargaining doesn’t necessarily have a direct impact on the state’s budget.  Again, it seems like the Court ought to find out how bargaining works in real life before overturning forty years of settled law.

Another set of facts that Janus’s lawyers want to Court to ignore is the basis for Janus’s policy disagreements with AFSCME.  For instance, it might matter if the public policy that Janus objects to is the idea that any contract governing the employment terms of public employees is enforceable.  That type of objection might reasonably be entitled to little weight.  It also might matter if Janus only objects to a handful of provisions in the collective bargaining agreement.  As the Supreme Court once said in a case involving a union’s duty of fair representation, “[t]he complete satisfaction of all who are represented is hardly to be expected.”  Janus’s complaint states that he believes that AFSCME’s behavior in bargaining “does not appreciate the current fiscal crises in Illinois,” but there is no evidence that he has ever refused any wage increase or benefit, or donated any portion of his salary to the State.  I sure wish that I could say that because I have some public policy disagreements with every car insurance company, I am entitled to receive my state-mandated car insurance for free.

The final set of facts that Janus’s lawyers want to ignore are the similarities between state-mandated bar associations and public employee unions.  For sixty years, the Court has treated integrated bar associations and unions as equivalents for First Amendment purposes.  When asked how he would distinguish this case from the bar association cases, Janus’s lawyer said that “state bar associations are justified by the state’s compelling government interest in regulating the practice of law before its courts.”  But, this is nonsense.  States can regulate the practice of law without requiring lawyers to pay fees to a mandatory bar association.  In fact, many states do not have mandatory bar associations.  In Harris v. Quinn, the Supreme Court explained that mandatory bar fees are justified because states “have a strong interest in allocating to the members of the bar, rather than the general public, the expense of ensuring that attorneys adhere to ethical practices.”  But, Illinois has argued that fair share fees promote a similar interest in helping the government manage its workforce.  And, while Janus argues that fair share fees aren’t necessary because state and local governments can offer union agents paid time off to perform union business, the State has a strong interest in allocating that cost to public employees rather than the general public.

As usually happens at oral arguments, the Justices threw a series of hypothetical questions at the lawyers.  These hypotheticals can be useful in testing the limits of arguments, but ultimately the Court ought to decide this case based on actual facts.