Supreme Court

The Supreme Court's Big Public Sector Union Case Is Really About Free Speech

Can public sector unions force recalcitrant workers to pay dues, or does that violate the First Amendment?

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JOSHUA ROBERTS/REUTERS/Newscom

Mark Janus did not vote to join a union, and he does not support the union that he was forced to fund as a condition of his job.* Nevertheless, each month the Association of Federal, State, County, and Municipal Employees, Council 13, takes a cut of Janus' paycheck.

Late next month, the U.S. Supreme Court will tackle the question of whether that should be legal. For now, unions in many states are able to collect mandatory dues payments from millions of public sector workers, whether or not those workers want those unions to speak for them. The unions, after all, don't just negotiate with employers about pay and working conditions; they regularly lobby for and against a range of public policies.

Janus v. AFSCME Council 31 is best thought of as a sequel to Friedrichs v. California Teachers Association, a 2016 Supreme Court case that raised the same question about whether public-sector unions can extract political dues from recalcitrant members. That case ended in a 4-4 draw after Justice Antonin Scalia's sudden death left the Court with an even number of conservative and liberal members. For obvious reasons, that means all eyes in this case will be fixed on the newest justice, Neil Gorsuch.

While the case could have far-ranging implications for labor policy at all levels of government, it will likely turn on a relatively simple question: Does money equal speech?

In a newly published analysis of the arguments in the Janus case, Trey Kovacs, a policy analyst with the Competitive Enterprise Institute, says it does.

"Workers should not have to fund an organization with which they disagree in order to keep their jobs," says Koavks, "especially organizations like public-employee unions, which are inherently political."

Janus, like Friedrichs, takes aim at an earlier case: 1977's Abood v. Detroit Board of Education, when the Supreme Court ruled that public-sector unions could levy compulsory dues. Without those mandatory payments, the Court reasoned, unions would have to represent "free riders" who benefit from the representation of a union without contributing anything in return. As Damon Root noted in the January Reason, that decision has been a major boon to public sector unions.

In its filing in Janus, AFSCME calls mandatory dues a "small intrusion on employees' First Amendment interests."

Writing at The Volokh Conspiracy (which Reason hosts, though it is editorially independent), UCLA law professor Eugene Volokh suggests that the First Amendment argument might not be as compelling as Janus and his allies think.

"The government can constitutionally require people to pay money to the government (in taxes), money that the government can then use for ideological purposes (e.g., supporting a war, opposing racism, promoting environmentalism, and so on)," Volokh writes. "Likewise, the government can constitutionally require people to pay money to unions, money that the unions can then use for ideological purposes."

The legal distinction, if the justices wish to draw one, could lie in the difference between being forced to pay money to the government and being forced to pay money to a nongovernmental third party.

At least some ears on the bench will probably be receptive to Janus' position. "Preventing nonmembers from free-riding on the union's efforts," Justice Samuel Alito wrote in 2014, is "generally insufficient to overcome First Amendment objections."

"Except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support," Alito concluded.

This piece was updated to clarify that Janus is not a member of the union, but is forced to contribute to it.

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  1. If the public sector unions are so fucking great, they won’t have to worry about free riders; everybody will want to join.

    Snark aside, couldn’t the unions offer services aside from negotiation that only go to paying members as an incentive to join? Or is that too much like “capitalism”, which they deeply hate?

    1. Snark aside, couldn’t the unions offer services aside from negotiation that only go to paying members as an incentive to join?

      I would not be surprised to learn that doing something like that is illegal.

      1. Actually in most unions already have, and don’t defend those opting out. In reality it frequently makes it easier for a public agency to get rid of someone. All previous litigation, decisions, and precedent has been organized, and available on search a legal engine. The real problem, is agencies training employees whose master and whose the dog. When union workers aren’t pedigreed dogs, management has problems, usually of their own making.

    2. Or the fiction that the ‘free rides’ actually benefit from the union rather than merely have to toil under it’s agreements.

      1. ^ This.

        It seems to be a basic assumption that the Union is doing only good things for the employee. While that might be effectively argued, it seems logical that the Union also hurts the employee through public policy lobby efforts as the employee also falls under the very government the Union attempts to extract favors from.

        Some of those favors will benefit the employee as an employee, and some will hurt the employee as a citizen. The reverse is also true, but pretending there’s a ‘free rider’ problem when the problem is the Union itself is pretty amusing to me.

        1. Back when I was teaching (15 years ago), I was forced to pay dues to the AFT, even though I refused to join, on the premise that I was “benefiting” from their activity.

          I interviewed for a job at a private high school at the time and found that they would happily have offered me more money if the union would have allowed them, but they couldn’t manipulate the scale enough to make it work.

          This is so much as to say I don’t feel I was actually benefiting from the collective bargaining agreements, but I sure was unwillingly helping to pay for them to be produced.

          1. Indeed. The scale for Union work is meant to benefit length of service over competency because, as the labor, do they at all care about the quality of said work? No. Why would they, when their concern is on the employment side?

            That’s one of the most fundamentally flawed aspects of a Union, in that there is not really an incentive for the Union to help keep the company afloat, but rather the incentive is to extract what they can as quickly as they can before the company folds.

            A forward-thinking Union will be smart enough not to kill the host they infest, but most of them aren’t that smart and even long term the Union is almost certain to forget that if the company folds, they are all unemployed.

            1. +1 Twinkie

    3. Snark aside, couldn’t the unions offer services aside from negotiation that only go to paying members as an incentive to join?

      Make union-negotiated wages and benefits strictly contingent upon union membership, and most people will choose to join. Since that’s not the way it works, the incentive to find ways to free-ride is significant.

      You want to talk about “capitalism”? Let’s talk about the people who think they should get something for nothing.

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  2. only in the mind of a leftist will they say that forcing you to be part of a union isn’t force at all, you don’t have a right to work there, but in the same sentance, will say WallMart is evil because poor people are FORCED to shop there!

    1. Wait until you buy a new car. The fucking leftists at the dealership blow a gasket when you tell them that you are pissed that you have bells and whistles to wear a seatbelt, the cars auto shut off at a stop, blinking lights for staying your lane, flashing lights if you get too close to another car, and the car adds torque to one of your wheels if you change lanes without government approval.

      I asked them how to turn all that shit off.

      These leftists just cannot believe that you don’t want to pay more for a car to their shitty Nanny-State bullshit.

      1. Since you’re talking about features that weren’t standard in new cars even five years ago, I’m guessing you’re looking at new cars, and possibly high-end new cars?.

        In which case, it’s probably less that the “fucking leftists” were upset that you wanted to turn off their “shitty Nanny-State bullshit”, but that the people who are paid by commission were upset that you wasted their time asking about a car that doesn’t actually exist.

        My advice? Go to a used car lot or find a mechanic who knows how to disable that stuff. Because your preferences are not the preferences of the majority of new-car buyers, and are unlikely to ever become popular again in new cars. That’s not “leftists”, that’s capitalists.
        ________
        ?I haven’t looked at new cars in a few years, so I’m not sure how high-end. But you’re definitely not looking at 2012 cars, because those features were not prevalent in mid-line models at that time.

        1. I was looking at new cars. They do offer cars that don’t have that Nanny-State shit but there is push for more gadgets that people don’t want.

          Funny thing about researching new cars is looking at other comments people make. A lot of people just like me. Plus, they have the ability to turn those BS features off, which means that they know some people do not want them.

          I guess that I should have clarified about the leftists at the dealership tried to tell me how these BS features are required by law and that was a good thing. That is a lie. I enjoyed discussing Libertarian themes during my test drive.

          Capitalists put stuff on cars that people want. Leftists add things to cars for “safety” and to crony up the automobile industry with features that keep car prices high without having more features people will pay more for. Capitalism causes news cars to be better and cheaper, which somehow only has caused cars to be more expensive and sometimes better. They have airbags all around the interior now though.

        2. Definitely want to be able to turn off OnStar or its equivalent.

          1. Hope you have a soldering iron, because even when it’s “off” they still track you. Kind of like when people “turn of Siri” on their phone.

      2. You turn that stuff off by driving a fifties or sixties ‘antique’.
        Not only is the insurance cheaper, you can often get a real deal on the stupid tag.
        A few reasonable upgrades, like fuel injection and disc brakes if not already there, and you are as safe as you need to be. I assume anyone wise enough to bitch about the mandates is old enough to deal with an old car.

        1. Luckily, the manufacturers have not gone full Nanny on drivers because they typically provide opt outs.

          But yeah, at some point new cars will become so Nanny and so expensive that classics will be better.

        2. I don’t like wrenching anymore, or I’d agree with you whole heartedly.

          1. Well, you may not be aware of it, as you are among the elite, but it turns out that there are some people who will do manual labor for a reasonable fee. They are called mechanics, and hang around places called garages. A select few, who are usually really good, but hard to persuade to work, are under shade trees.

  3. No one is compelled to do or fund anything. The complaining snowflake could quit whining and find another job, one more to his taste.

    Should shareholders be able to demand a refund with respect to funding of corporate activities to which they object, or should they find another investment if they don’t like the way a corporation funds activity or advocacy?

    There are more employers than corporate investments available to an American, who is free to find an investment, or a job, congruent with the relevant preferences.

    1. Yup. All those teachers need to find new jobs and stop whining about low pay. Find one more to their taste – high paying teacher positions where they brainwash kids about the benefits of Marxism.

    2. Being forced to pay a group you did not wish to join as a requirement for employment is what Libertarianism is all about for Kirkland here.

      1. The limitations to my libertarianism are better than the bigotry, backwardness, superstition, and other right-wing preference that so many faux libertarians display at this site.

        Carry on, clingers. More masquerading in unconvincing libertarian drag, please.

  4. OT: Amazon Alexa Will Now Refuse To Respond If You Use ‘Sexist’ Language

    Alexa “consistently underperformed when it came to clapping back at sexism, and, worse still, refused to define herself – an artificial intelligence – as a “feminist.” When asked about feminism, she merely directed the questioner to a spot on the web where they could find more information on the women’s rights movement.

    Amazon was, apparently, rather distressed by Quartz’s findings, even if regular, everyday Americans weren’t likely to ask Alexa whether she was a feminist, query her for her views on reproductive rights, or call her a “slut” (especially given that she’s not a real person), so they made an effort to change Alexa’s programming, making her more “woke,” and even giving her the option to rebuke sexist questions.

    As if I needed another reason to not want one of these things. ///MakeMeASammich

    1. Americans have now become pussies on an artificially subconscious level.

    2. I can’t wait for that to hilariously backfire.

    3. The concept of a voice activated shopping AI that purchases things for you without your consent always seemed like the kind of thing only a monumental retard would purchase. Then again, I’ve had direct experience with voice recognition software before so I don’t trust it with any important task.

      It’s just not very good. You can ‘train’ them to be fairly decent, but it takes a lot of time and effort and more importantly errors before it ‘learns’ how you speak (and it will never stop making errors).

      Somewhat off topic, this is also why I don’t trust the idea behind self-driving cars. Robots only understand other robots, by and large.

    4. Giving our new Artificial Stupid servants social justice awareness is something that will work out so well.

      Bad enough having a Cylon Revolt without making it passive-aggressive as well.

    5. If you insult a google home, it mollifies you with a “I’m sorry you feel that way”.

      I really don’t think it is, but I just don’t get it’s body language.

    6. Amazon was, apparently, rather distressed by Quartz’s findings, even if regular, everyday Americans weren’t likely to ask Alexa whether she was a feminist, query her for her views on reproductive rights, or call her a “slut” (especially given that she’s not a real person), so they made an effort to change Alexa’s programming, making her more “woke,” and even giving her the option to rebuke sexist questions.

      Yes, SJW are such fun, fun folks.

      I already didn’t want Big Sister in my house. I REALLY don’t want “That’s not funny!” Big Sister.

      1. Who is less fun — social justice warriors or bigoted, prudish, authoritarian, superstitious right-wingers?

        1. SJW’s, since they actively ban and sue and cost people their jobs, educations and careers over their BS.

          Those right-wingers couldn’t even ban Dungeons & Dragons.

  5. If union members form a group and agree to extort their employers for more money under threat of strike or often violence, that is called collective bargaining and is considered noble.

    if employers get together to figure out ways to get around the unions greedy and crippling tactics, then it is called collusion and it is illegal.

    does that sound like free market capitalism?

  6. Can public sector unions force recalcitrant workers to pay dues, or does that violate the First Amendment?

    No. Yes.


  7. While the case could have far-ranging implications for labor policy at all levels of government, it will likely turn on a relatively simple question: Does money equal speech?

    Well, since that issue was already resolved it’s a wonder this will be the second time this issue goes the SC.

    1. It’s absurd to think that the Citizens United case didn’t already resolve the question of ‘does money equal speech’. It does, and the SC is the one that decided that it does.

      Stupid is as stupid does, I guess.

      1. The losing side in Citizen’s United was arguing that speech equals money, therefore the government was authorized to suppress a documentary.

        1. Wrong.


          Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), is a landmark U.S. constitutional law, campaign finance, and corporate law case dealing with regulation of political campaign spending by organizations. The United States Supreme Court held (5?4) on January 21, 2010 that the free speech clause of the First Amendment to the Constitution prohibits the government from restricting independent expenditures for communications by nonprofit corporations, for-profit corporations, labor unions, and other associations.

          1. What the government was arguing that CU’s anti-Hilary documentary was a equivalent to a campaign contribution to her opponents, and therefore could be suppressed, i.e. communications (speech, press) are the same as cash contributions.

            I was speaking of what the LOSING side’s argument was.

  8. After the Democrats lose this case, their union slush funds for political campaigns will really take a hit.

  9. The unions should just call it a penaltax and they’d be good to go.

  10. What’s the legal argument for employers not being allowed to make union dues (regardless of union membership) a condition for employment? If I, as the owner of a hypothetical comic book shop, only want to hire folks that pay dues to the Comic Book Cashiers Union, is that an illegal decision?

    I mean, I’m seeing arguments that a union can’t demand dues from non-members (which I’m sympathetic too), but even if the union doesn’t have that power, can’t the employer still make union dues a condition for employment?


    1. If I, as the owner of a hypothetical comic book shop, only want to hire folks that pay dues to the Comic Book Cashiers Union, is that an illegal decision?

      It depends if you live in a right to work state or not, but yes it can be very illegal. Since these are public Unions it’s a different story, apparently, and the reasoning seems to boil down to ‘we’re the State, so our rules for ourselves are different’.

    2. When the employer and the beneficiary are a government that I didn’t vote for and I have no voice at the negotiating table, I see a huge problem with it.

      Private sector unions? Sure, go for it.

      1. Except when Republicans use the force of government to actively prevent them, as they have all across the country. No doubt you oppose Orwellian-titled “right to work” laws on libertarian grounds.

        1. …consider that if employees try to form a Union the simplest, and historical, method is to fire every last one of them. Your historical revisionism knows no bounds, as it was the Unions that sought special protections.

          1. A large chunk of government time is taken up by spending tax dollars on making society friendlier to commerce. That’s everything from roads and bridges to limited liability. Businesses get special protections too. The whole point of unions is to create a balance where there was none before so that most actual human beings get some of the action.

            1. Christ you are a fool.
              Are actual human beings like the “real people” on car commercials and mutual fund commercials?

              Stupid leftists cannot mask their ignorance when it comes to class warfare and economics.

              You where it well lefty.

              1. “You where it well lefty.”

                And you display the standard education and literacy level of a clinger.

                Good luck at the marketplace of ideas.

            2. Cartels are already illegal you retard, so it’s a solution in search of a problem.

              The point of a Union is to put a business out of business. The only industry they’re ever been ‘successful’ in is Hollywood which has the magical ability to never go out of business since one film can net you billions.

              Why is it illegal for a group of businesses to fix prices, yet it’s legal for employees to do the same one might ask.

              1. Because I wasn’t put on this earth to lick the taint of some sociopath in a corner office. There’s no point to having an economy if it’s not structured to make people’s lives better. That involves, in small part, ensuring that workers have some amount of leverage in the places they spend most of their waking hours and depend on for their livelihoods.

                1. Employees and owners ensure that they have “leverage” without initiating force because that is not accepted in the private sector. No one can do that for them using force, threats thereof, or fraud, and claim to be moral.

                  The public sector is based on the initiation of force, and therefore immoral. The support of the majority does not change the morality. It does show the disconnect between the public and private,

                  1. Most people are more stressed about work than government, except those currently involved in legal troubles. You don’t get to change how reality works with a bit of glib wordplay.

                    1. Then why are you still here?

                2. Who’s got time for the corner office when the Oval Office is there?

        2. Well, if we can get rid of public sector unions, we might make more head way on going after bad cops.

          And bad teachers for that matter.

          1. I’d wager that the bad cops stay because the Chamber of Commerce plutocrats got what they wanted, and they’re rich and white so what do they care what cops do?

            How about we leave freedom in place for now and focus on the core issue?

            1. …What are you babbling about? This makes less sense than usual.

              1. Tony has been having a rough year since Trump was elected.

            2. “”I’d wager that the bad cops stay because the Chamber of Commerce plutocrats got what they wanted,””

              It’s not the CoC that is preventing bad cops from getting punished. So let’s stick to the core reason as to why they get away with it today, and leave the Chamber of Commerce plutocrat fantasy aside.

        3. You have no right to work which takes away the right of an owner to fire your ass.

          You have a right to look for work.

        4. No doubt you oppose Orwellian-titled “right to work” laws on libertarian grounds.

          As a matter of fact, I do. The government should have no business interfering in the affairs of private businesses and their labor unions.

          You will note that the defendent in all of these Supreme Court cases are public-sector unions.

        5. Wow Tony. Not very up to date on that ole education thing it seems. Right to work states don’t ban unionization. Arizona is a right to work state. It has many forms of unions. Even in the public sector. They just can’t demand you join said union.

          1. Yes, and Tony appears to be incapable of recognizing that ‘Right to Work’ states are…wait for it…more friendly to immigrant labor. Haha, oops. I guess he’ll have to choose which grievance group to throw under the bus now.

    3. Back in the 19th Century there was a common practice for politicians to require the civil servants working under them to contribute to their party. That was made illegal under one of the waves of Good Government reforms. I am not sure how doing the same thing with a union boss as a bagman makes it less objectionable.

      1. “civil servants working under them” Monica?

    4. Escher,
      no employer on earth would make union membership a condition of employment.

      unions have only ever existed as a path to legal extortion anyway.

      Even the so called “robber barons” we not forcing their employees to work in horrid conditions. That is one of the oldest propaganda scams of all time. People were flocking to the cities to get these stable and well-paying jobs. Then along came the class warfare Marxists who decided they could paly the extortion game. Naturally came the politicians who could be purchased for their votes.
      The only violence, force, and unfair labor practices were of course being carried out by union thugs who violently suppressed any attempts by the employers to offer the union jobs to other people willing to take them.

      1. That is not true. Very large companies often like having a union as a single point of contact for employee relations. It often depends on context and how volatile the union involved is.

        1. That is untrue. No business of any size want an organization of employees that can destroy their business without any legal recourse on the part of the employer.

          1. Why would an employer want employees who don’t work as hard and have to paid more?

            1. Exactly.

              Now, leftists usually misunderstand this to mean that I don’t believe in bargaining with one’s employer. That is untrue. I don’t believe in collective bargaining, because it amounts to extortion.

              There is a difference.

            2. I don’t know. Have you stopped beating your wife?

              In case that isn’t clear: when you bake assumptions into your questions, it’s pretty obvious you’re not discussing in good faith.

              1. A lot of pubsec union workers get unlimited, no-questions-asked sick days. I’d say that counts as “not working hard”.

              2. That’s the only the case when the assumptions that are ‘baked in’ aren’t supported by empirical evidence that suggest that those are expected and common outcomes of the underlying thing. In the case of Unions, they DO inflate wages and they DO negotiate less hours.

                Reference, say, the benefits and leave packages of Unionized auto manufacturing workers vs. non-Unionized employees in the same industry.

                That said, yeah just asking that question in a vacuum leaves itself open to exactly your line of attack but let us not pretend this hasn’t been the observed trend over a hundred years (Since, what, late 1880’s?) of Union history. There is a reason why America went sour on them. If not for Unions, there’s a very real possibility that Detroit wouldn’t be an utter shit hole. Hard to ignore the horror stories for the rational individual.

                They are a communist construct, after all.

            3. “Why would an employer want employees who don’t work as hard and have to paid more?”

              Why would a country want to prevent an employer from hiring the preferred candidate to work at a job without regard to immigration status, or to have to pay some yahoo from the can’t-keep-up backwaters more because bigots dislike immigrants?

              Carry on, clingers. While the liberal-libertarian alliance continues to forge America’s greatness.

          2. Private sector unions without any sort of government strong arming backing them would have to operate under free market principles the same as any other voluntary organization. To achieve their goals of bettering workers conditions, they’d either have to increase efficiency or increase product marketability.

            That’s a win for everybody involved.

          3. Becsuse it is easier for their own bureaucracy. I am only saying that it happens, not that it is a wise move.

          4. Volkswagen does. They actually pulled shenanigans in Tennessee to try and unionize one of their plants back in 2013. Looks like it failed and things since went weird, but back in 2013 they were trying to find a way to make it happen (against the state’s wishes, mind you).

            Don’t make the mistake of believing your own propaganda.

            1. Sorry, I should have clarified that an American company would not be interested. A foreign company could think a lot of different things, such as the concept that employees are property among other wacko-bird nonsense.

              1. Germany has “co-determination” – representation on corporate board reserved for the unions.

                In this regard, Volkswagen is similar to other large companies in Germany, which, under a policy known as co-determination, or Mitbestimmung, requires company boards to be equally divided between workers and members elected by shareholders. The model has come under sharp criticism from other eurozone members and pension funds outside Germany that invest in German companies.

                NY Times 25 Sept 2015

                VW, or its board, may well want to deal with a union, which also has appointees from Bavaria’s state government.

        2. Miceky,
          That employer that may choose to communicate with only one union rep is certainly not enjoying that process. That just means he has to deal wit the unions. unions have only ever been a major thorn in the side of a businesses ability to innovate and thrive.

          They are blood sucking parasites i.e Luddites.

        3. BMW was less than happy their TN plant, I believe, voted against unionization.

      2. Don’t forget that the Unions also figured that bombing things was perfectly fine. But no, I’m sure their hearts were made of the purest gold.

        1. The president of the ILA once received a standing ovation for wishing he could throw a hand grenade into the conning tower at the all automated port facility at Rotterdam or Antwerp. Please look that up. think it was about 2010 or 2011.

          These people are animals.

          1. BYo,
            It is in the Journal of commerce from 8/8/2011

            just google ILA, hand grenade, Rotterdam port, Family man. Daggett.

            1. Saying it is a lot less worse than those who proceeded him who actually did it, I’d say, but I can’t say I’m surprised that it’s still joked about today. I wouldn’t be surprised to see it acted upon today either, but it’s definitely less common.

      3. Timbo. Are you stupid? The horrors of Gilded Age employment were well documented.

        Was it as bad as “The Jungle” made it out to be? Not quite. However, there were many legitimate reasons to create unions back in the day.

        Today? Not so much. If an employer is so bad that their employees want to form a union, they have done something horribly wrong. Going by my personal experience, even employees at union plants get fed up with union rules getting in the way of just getting things done.

        1. However, there were many legitimate reasons to create unions back in the day. Today? Not so much.

          There are plenty of legitimate reasons to create unions today. It’s just that work has changed.

          If unionization had kept up with the times, and if generations of labor law hadn’t chipped away at labor protections, unions would be able to negotiate living wages for hourly workers, secure pensions, reasonable health insurance cost-sharing, minimum hour requirements/limits on shift-splitting, and so on. All things that make life difficult for the average wage-earner in the U.S. these days. But nowadays the kinds of jobs that need those kinds of protections are high turnover, unskilled, franchised, etc., in a variety of ways that make organization difficult, impossible, or futile. Once upon a time you could get all the truckers or steelworkers together as a union. All the food service workers? Who would join? No one expects to make a career of that.

    5. What’s the legal argument for employers not being allowed to make union dues (regardless of union membership) a condition for employment? If I, as the owner of a hypothetical comic book shop, only want to hire folks that pay dues to the Comic Book Cashiers Union, is that an illegal decision?

      Would it be illegal for you to force them to give to a church?
      Donate to a charity they find offensive?

      It’s the employee’s money. Not sure where your wants and needs should be relevant. This isn’t like insurance where employers still pay a lion’s share of it.

      1. So by your understanding of Freedom of Association, I can choose to fire/not-hire someone because they don’t go to the right church, but I can’t fire/not-hire someone because they don’t donate to the right church.

        That’s an awful weird line y’all are drawing here.

        1. This case, it should be noted, regards public unions. They shouldn’t be legal as is.

  11. “Likewise, the government can constitutionally require people to pay money to unions, money that the unions can then use for ideological purposes.”

    I think he’s wrong but OTOH the government did look under the couch cusions and discover an ability to constitutionally require people to pay money to insurance companies, so what do I know.

    1. “”I think he’s wrong but OTOH the government did look under the couch cusions and discover an ability to constitutionally require people to pay money to insurance companies, so what do I know.””

      That was my first thought. But you are not really required to pay money to insurance companies, it was legal to not pay them, and pay the tax/fine/penalty to the government instead. So there was another option.

      Sure, it’s still compulsory, but not to non-gov entity.

  12. Gorsuch, it’s become universally apparent, is arrogant and stupid. And a pretentious windbag. All the better to do the bidding of the crony capitalist community.

    1. The fact that lefties hate him, makes him one of the best justices of all time.

      1. That this counts as the apex of human cognition for you makes me sad for the world. Don’t reproduce. If you already have, give them away.

        1. Tony, if I get you a time machine, can you get your mom to have an abortion?
          The world would thank you.

          1. You are arguing with the zombie horde. He just has a vocabulary. And not that great of one.

        2. Aw poor Tony has had a rough go of it since Trump won.

          Now tax reform. That darn Trump is foiling all your ideals.

    2. Well, since to you all capitalism is crony capitalism you might understand why your bleating is mostly ignored.

    3. Tony|1.24.18 @ 3:20PM|#
      Gorsuch, it’s become universally apparent,…”

      It’s done nothing of the sort, shitbag.

    4. Gorsuch, it’s become universally apparent, is arrogant and stupid. And a pretentious windbag.

      Leftists project. It’s what they do.

      1. Leftists project. It’s what they do.

        Right-wingers are bigoted, half-educated, superstitious goobers. It’s what they are.

        Where is the hope for America?

        1. It’s us, the libertarians!

          1. If by “libertarians” you intend those who oppose

            immigration restrictions, especially those founded on stale intolerance;

            massive military budgets;

            anti-abortion zealotry;

            drug warriors;

            whittling of the Fourth Amendment;

            government secrecy;

            abusive policing;

            voter suppression;

            endless detention without trial;

            governmental gay-bashing;

            militarization of police;

            boundless special privilege for superstition; and

            torture,

            you might have a point. Many reason.com followers will read “libertarian” to mean ‘sheepish , authoritarian right-winger masquerading in unconvincing libertarian drag,’ however.

            1. I like your list, though it’s notably missing a lot of lefty authoritarian crap. Add that in, and yep – those are the libertarians I’m talking about!

            2. So, are you “The Rev Mr” or “The Rev Dr” Troll?

  13. Well, it would be different if companies had payroll computers and could easily tell union members form non-members.

    Then it would be OK to have union members pay dues and get the great membership benefits, while non-members did not pay dues, and did not get the negotiated benefits.

    But that would require very sophisticated computers and hard to develop programs. Like the ones on the web.

    1. What if they negotiate for refurbished bathrooms?

      1. Then one would think dispensation for non union members would come up in negotiations. Why is the government involved?

        1. Why does the company I work for get to benefit from hundreds of thousands of dollars worth of education they didn’t contribute to? Or the roads that bring customers there?

          Government is everywhere, and that’s good, because a hunter-gatherer lifestyle sounds like it’s not too much fun.

    2. Remember a few years back when folks were talking about disclosure laws, requiring companies to publicly post their “CEO to median employee pay ratio”? And a whole bunch of companies were saying “oh no, that’s far too complicated for us to every calculate. It would require so much infrastructure to calculate such an arcane number”.

      So regardless of reality, I wouldn’t put it past a company saying that such a thing would be too difficult if they thought it might get them out of some obligation or other.

      1. If it was my company I would meet all my obligations. I would remind anyone asking to know the CEO pay that it is my business, not theirs.

        1. If it was my company I would meet all my obligations. I would remind anyone asking to know the CEO pay that it is my business, not theirs.

          EscherEnigma is referring to disclosure obligations to a company’s public shareholders. Is that how you would treat your shareholders?

    3. As someone who has done payroll for large companies before, it is almost always more complicated than you would think. Largely due to government rules.

      1. Those government rules kept me in big bucks writing and maintaining payroll systems for 45 years. But there was never a rule or regulation that could not be programmed. I am just saying there is no reason at all why a union contract has to cover everyone instead of just the employees who choose to join. There is no free ride anymore than a free lunch.

        1. I am just saying there is no reason at all why a union contract has to cover everyone instead of just the employees who choose to join.

          Besides the law, you mean.

  14. The Union mentality is fascinating. On the they one hand they believe they should be able to coerce membership, then they become incredibly offended when the people who are forced to join their group do not subscribe to their groupthink.

  15. So, per Volokh, gov’t can empower a “private” organisation to tax. Astonishing. He’s full of bullshit, of course. Just astonishing he’d spew that. in public.

    1. When the employee signs the employment contract, they are electing to to engage in political speech, by paying the required union dues.

      If an employee works for an ad agency, and the employee is asked to star in a political ad, is the actor’s constitutional rights being violated if they disagree with the message they are asked to speak?

      For comparison, it is also constitutional for an employer to require an employee to hold certain religious beliefs,
      Bona Fide Occupational Qualification, and the employees constiutional rights are not violated.

      It is up to each state to create the protections which are not provided by the US constitution.
      Summary of each state’s laws protecting works rights to political speech

      1. An ad agency is not receiving public tax monies from non-participants toward their pay and pensions.

        Bona fide occupational qualification is not pertinent as nothing is being confiscated from the employee as a condition of employment.

        Your example of state’s Constitutional protections for employees shows limits on employers, not employees. No state may limit an individual’s right of association. Thus the terrible “compromise” of 1977.

        1. The ad agency/BFOQ are examples of discriminatory conditions an employer can put into an employment contract.

          If your focus is on the money, an example there could be:

          An employer having a clause in the employment contract stating that part of their compensation will be set aside, (i.e. deferred compensation) into a non-qualified pension fund, which will be paid after they retire. The company then decides to invest the all the funds (hence the non-qualified part) into a lobbying firm which advocates for favorable legislation for the companies industry.

          If the “confiscation” and the compensation are all part of the same contract, is anything truly being confiscated? It’s a contract, take it or leave it.

        2. I’m not sure what the first amendment difference would be between public/private shops. If you disagree with how the state is negotiating with the union (by conceding to a security clause to the union, not privatizing the government service, not passing a right-to-work law, etc.) then that is the fault of the elected government.

          The constitution isn’t meant to be used as leverage against the political party with which you disagree. If the majority of your fellow citizens do not support right-to-work legislation, then tough luck. You’ll have to move to a different state with more like-minded citizens.

  16. The “free-rider” excuse for taxing (stealing) is refuted by questioning the assumption that a union to which an employee does not belong can be forced upon the employee. When a union concession is put into effect it need not apply to all employees. How can someone claim to speak for another without that person’s permission? How can the union exercise authority for or over anyone without their permission?

    Of course, this argument has a broader application. How can an elected official gain authority over those who did not vote based on the principle that voting is an indirect initiation of force. See: “Neither bullets nor Ballots” by Smith & McElroy. In the private sector, a person who pays for a “hit” is just as quilty as the hitman. Why should it be different in the public sector?

    1. How can an elected official gain authority over those who did not vote based on the principle that voting is an indirect initiation of force.

      If you’re having trouble with this concept, then you have deeper issues than failing to understand how a union properly derives its authority.

      1. I’d have to agree that laws like the Wagner Act were constitutional in order to agree with a union’s “properly derived authority.”

        Federal, State and local governments could, and used to, refuse to treat with unions. Political changes after WWII led to pols caving in and extending collective bargaining to government workers.

        National Affairs, Daniel DiSilvo

  17. Man-o-man could I tie up the court in a knot with Ctizens United against Abood v Detroit Board of Education.
    Money is speech, they said. Which is a later precedent than Abood. Aah, bye Abood.

  18. Oh, which brought me to this thought. If Citizen United said money is speech and the court essentially uses that to referse Abood, couldn’t a stockholder then use Citizens United and the new Janus to prohibit public corporations from dragooning stockholder equity to lobby the government in ways the stockholder finds disagreeable to them? I see that as a possibility.

    1. No one is forcing people to invest in public corporations. That is a choice. If you don’t like what they’re doing with your money, then don’t invest. All the plaintiffs here are saying is that they don’t want to be forced to pay money for speech they disagree with.

  19. The legal distinction, if the justices wish to draw one, could lie in the difference between being forced to pay money to the government and being forced to pay money to a nongovernmental third party.

    Just call it a penaltax

  20. The problem lies in taking for granted that a “union” is an expressive association. It is not. It is a governing unit, akin to a municipality, that is defined and regulated by law. All that you’re saying, when you say that a workplace or workforce is “unionized,” is that the law recognizes a certain body of similarly-situated people as constituting an entity whose members elect a leadership, work according to certain rules, etc.

    The Free Speech cases on union dues obscure this fact and, instead, emphasize the “expressive activity” that unions can engage in. But unions aren’t clubs, political parties, church groups, or anything of that nature. They “express” only what their members, through the election of leadership, direct them to express. Objecting to paying union dues is akin to objecting to paying city taxes – it’s not really your choice whether you belong or not. It is your choice, however, how you exercise your rights as a member of the union.

    1. “Unions are basically government, and I’ve never met government that I didn’t want more of”.

      1. Leave it to the libertarians to find a way to whine about having too much leverage when they negotiate the terms of their employment with their employer.

        1. The union may functionally be a governing unit, but that is contrary to the nature of the US Constitution, and smacks of European communalism, where groups, rather than individuals, have privileges, rather than rights. In this case, the rights of freedom of association in the first amendment, the right to private proprty in the fifth, and the “contract clause” of Article I:

          No State shall …. pass any….Law impairing the Obligation of Contracts,

          Unions are agents for their members, at best. At worst they approach being guilds: keeping people from even getting their foot on the first rung of the ladder of success, unless one has family or political connections.

  21. “Likewise, the government can constitutionally require people to pay money to unions, money that the unions can then use for ideological purposes.”

    Great so Congress should immediately pass, and the President should sign, a law that requires people to pay money to the Republican National Committee, which the RNC can then use for ideological purposes.

    What’s that? It’s only constitutional when the money is used for liberal ideological purposes? I see.

    1. The purpose of the Constitution is not to prevent Congress from passing any bad law.

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  23. If you object to a corporation in which you own stock using some of its (and yours) assets for political activities, you can sell your stock. If you object to a union using your dues for political activities, you can quit your job. These two cases are not equivalent.

    1. Changing jobs is a much bigger disruption to your life than, say, selling stock in Ford and buying stock in GM or Chrysler. Every job change in my life (I’m 64) has required moving and finding a new residence; the shortest move was 200 miles and the longest were 2,000 miles.

    2. Unions are exempted from anti-trust laws and seek to be monopolies. A worker for Ford in Detroit can apply for a job at GM and Chrysler plants within 50 miles, but will still have to pay dues to the UAW. If he has developed particular skills for his job, it’s likely that no non-UAW job exists that uses those skills. It’s even worse for public sector workers; their unions achieve monopolies by politics – the use of governmental force – as much as by organizing within the workplace. A teacher in Detroit cannot find a public school in Michigan that isn’t represented by the MEA, and even if she moves out of state, she will probably wind up paying dues to some very similar affiliate of the NEA.

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