1851 to Supreme Court: Forced Funding of Unions Violates Free Speech

1851 Center Amicus Brief argues that government employees who aren’t union members can’t be forced to pay hundreds of dollars per year to unions

Columbus, OH – The 1851 Center for Constitutional Law yesterday petitioned the United States Supreme Court to rule in favor of the Petitioner in a case challenging the constitutionality of public sector unions’ power to force public employees to pay union “agency fees.”

In Janus v. AFSCME, the Petitioner argues that government employees who opt not to be union members cannot be forced to pay fees in lieu of membership dues, to the union. Petitioner Mark Janus argues that nonmember employees cannot be forced to pay such fees because unions use the fees to fund their collective bargaining advocacy, union collective bargaining advocacy is inherently political, and the First Amendment prohibits enactments forcing American to subsidize the private political speech of others.

This case is of particular importance in Ohio, where 1,062 separate public employers maintain collective bargaining agreements requiring public employees who are not union members to pay agency fees to unions or be fired. These agreements affect 312,506 Ohio public employees who are forced to pay fees that average $700 per year.

The 1851 Center Brief explains and argues as follows:

  • Just as the First Amendment prevents government from prohibiting speech, it prevents government from compelling individuals to express certain views or pay subsidies for speech to which they object.
  • Forcing public employees to subsidize unions’ collective bargaining advocacy is no different than forcing such employees to fund the lobbying of public officials, since unions advocate for highly ideological outcomes through collective bargaining that raise taxes and spending while protecting poor performance and blocking reforms.
  • Collective bargaining advocacy can often be injurious to nonmembers’ self interests whether through raising their taxes, ensuring their own layoffs, or supporting political views they oppose.
  • The exception to the freedom from forced political speech the Supreme Court previously created for unions overlooked the highly political, ideological, and controversial nature of the policies public sector unions advocate for through collective bargaining.

“Just as no public employee may be forced to fund a political party, no public employee should be forced to fund objectionable union advocacy that has an even greater impact on our everyday lives,” explained 1851 Center Executive Director Maurice Thompson. “A complete victory in Janus will protect dissenting employees’ freedom of speech. Equally important, it will end forced funding of government unions in Ohio and restore to its proper place the artificially-inflated political power unions have used to raise government spending and taxes while blocking important reforms.”

“Government unions’ legal fight to deny employees the right to choose displays that their acknowledgment that they offer too little value at too high of a price,” continued Thompson, “Other non-profit organizations operate on voluntary contributions, and so should unions.”

Janus v. AFSCME only affects the rights of public sector workers as against public sector unions. It does not address private sector agency fees, which would remain intact. Nor would a victory in Janus prevent labor unions from collecting voluntary contributions.

The 1851 Center’s amicus brief in Janus v. AFSCME was coauthored by labor policy analysis Jason A. Hart.

Read the 1851 Center’s Amicus Brief HERE

Read the 1851 Center’s Columbus Dispatch editorial supporting Right to Work HERE