Now that the new state legislative session has begun, unfinished business and old battles become new again. While for most residents unfinished business means reforms to allow more housing to be built or action to fix the MBTA, for public unions it is an opportunity relitigate the US. Supreme Court’s 2018 decision in Janus v. American Federation of State, County and Municipal Employees (AFSCME).
For its part AFSCME had sought to perpetuate the practice of requiring non-union public employees to pay agency fees, based on the fiction that the cost of collective bargaining and workplace activities such as grievance procedures, could be clearly distinguished from political activity. Plaintiff Mark Janus objected to being compelled to support what he did not believe. The Court held that such a compulsion violated the First Amendment.
Having lost in the Supreme Court, local public unions are poised to pressure legislators to essentially undo the decision here in Massachusetts. Any who doubt their strength need only look at an amendment that nearly passed in July during the waning days of the last session.
Among other things, it would have given unions the sole right to negotiate lesser pay and reduced benefits on behalf of non-members, represent non-members in administrative appeals and bill them for it even if non-members do not want their participation or have hired their own representation, and give unions veto power over any employer-employee settlement.
Just in case any public employees weren’t already feeling sufficiently intimidated, the amendments would have even given unions access to the home address, personal email address and home or mobile telephone number of any employee or family member.
Janus dealt with fundamental rights, most importantly, the First Amendment right to free speech. Our First Amendment rights were first for a reason: Whether calling for the abolition of slavery or putting up billboards outside Ebbing, Missouri, the exercise of free speech has been essential to our democracy.
The First Amendment holds that each of us is sovereign; none may be compelled to go along with what others say or believe. In Janus, the Supreme Court affirmed that fundamental principle, quoting Thomas Jefferson’s dictum that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.”
The union tried to get around the “compelled speech” issue by advancing a troubling argument: that public employees do not have First Amendment rights.
The argument was understandable as a means to advance its short-term litigation objectives, but it is difficult to imagine how such a view serves the interest of its members. Fortunately, the Court rejected the argument and made clear that free speech protections apply to all Americans, not just private-sector employees. Eschewing arguments based on partial short-term legal or political interests, the Supreme Court recognized that, while freedom of speech requires a civil tolerance of opposing views, we should never require that others believe as we do, or vice versa.
By affirming that principle in Janus, the Court acted to preserve the most fundamental of our rights. Now the question is whether state legislators will do the same.
Jim McKenna is Senior Fellow in Law and Policy at Pioneer Institute, a Boston-based think tank.
