Mark Janus

Mark Janus Doesn't Want to Join a Union

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Mark Janus. Photo: Liberty Justice Center.

Mark Janus is a child support specialist for the state of Illinois who has lent his name to a Supreme Court case that could dramatically change the landscape for public sector unions. The former Eagle Scout sued the American Federation of State, County and Municipal Employees when he learned the association could deduct dues from his paycheck even though he wasn't a member and didn't want its reps negotiating his salary and benefits. The high court heard arguments in February and will likely issue a ruling this summer. Days before he appeared before the justices, Janus spoke to Reason's Nick Gillespie about what he's hoping to accomplish.

Q: What's the crux of your case?

A: That I have to pay a fee to the union even though I'm not a member of the union, and I wasn't asked for consent.

Q: If the union helps you get a better compensation package, that's beside the point?

A: Correct. My right to say no is just as important as my right to say yes. I wasn't allowed to say, "No, I don't want to pay this." I either pay the union fee or I lose my job.

Q: Would you be able to hammer out a better deal on your own?

A: Whether I can get a better deal on my own or not, that's not the question. The question is my First Amendment rights to speech and freedom of association.

Q: University of California, Los Angeles, law professor Eugene Volokh, whose blog is hosted by Reason, filed a friend-of-the-court brief against your position, saying there's not a First Amendment issue here—taxpayers are constantly being forced to pay for activities they don't approve of, and it's not unconstitutional because tax money is not speech. What do you think of that?

A: I totally disagree. In the most recent round of negotiations, when our current governor said no to the demands the union was making, the union held rallies around the state pushing for a tax increase.

Q: And the cost of that rally is charged to you?

A: That's unknown. But because they're out there asking for increases in benefits, and they're lobbying for tax increases to pay for it, to me that's political speech.

Q: Public sector union dues are voluntary in 28 states, and workers don't seem worse off as a result. Is that what you'd ultimately like to see as a policy outcome? Unions can exist, but they only represent people who want to pay for them?

A: There's no law that says they have to bargain for everybody. Why can't they bargain for just members who want to pay their fee?

Q: Has this case made you unpopular in the office?

A: I've got people who've actually come up to me and said, "Thank you for what you're doing. We appreciate what you're doing." I've gotten emails. I've gotten letters totally out of the blue. It's been enlightening. What's also interesting is that they're doing all of this under the radar.

Q: What is it like to have your name on a Supreme Court case?

A: It's a bit scary and also, at times, a bit overwhelming. Quite frankly, I try not to think about it. I'm just a guy who gets up and goes to work every day. I've got two wonderful kids, and I'm still involved with the Boy Scouts.

Q: A similar case last year split 4–4 due to the death of Antonin Scalia. With Neil Gorsuch now on the bench, is there a reason to believe it's going to be a 5–4 decision in your favor?

A: I am not going to make any predictions.

Q: But you are prepared?

A: I'm prepared whichever way it goes.

This interview has been condensed and edited for style and clarity. For an audio version, subscribe to the Reason Podcast.

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  1. I will make a prediction.

    This case will go in his favor and everyone knows he just doesn’t want to jinx it by being a Plaintiff who upsets the justices.

    The Democratic Party will lose even more money and people going into election 2018.

  2. Q: University of California, Los Angeles, law professor Eugene Volokh, whose blog is hosted by Reason, filed a friend-of-the-court brief against your position, saying there’s not a First Amendment issue here?taxpayers are constantly being forced to pay for activities they don’t approve of, and it’s not unconstitutional because tax money is not speech. What do you think of that?
    But this isn’t tax money. The government is not taxing the public and giving the money to the union. The government is forcing people to give money directly to the union as a condition of employment.

    1. I was disappointed to read that part. I had hope Volokh would be a libertarian.

      Reason can host whoever’s blog they please, but it sort of dilutes their branding if they choose obvious mismatches. Whose blog will they start hosting next, Michael Bloomberg’s?

      1. “Bloomberg is a Republican”

        /lefty justification

        1. “Bloomberg is a money grubbing cockholster”…FTFY

      2. I haven’t read Eugene’s full post. I know he will present a case for what the law is instead of what he thinks the law should be. I would still expect him to catch the difference between taxes and union dues.

      3. Prof Volokh is a libertarian (mostly). But much more importantly, he is a law professor. As such, his posts have a heavy focus on precedent and what the state of the law actually is. In my experience, he is much more guarded about sharing his opinions about what the law should be. If you read the full post in question, you’ll see that it is very much a legal analysis, not a normative analysis.

        In other words, the fact that Prof Volokh thinks the current rule is constitutional is no evidence that he thinks that the current rule is right or that it is good social policy.

        Personally, I think (hope) that Prof Volokh is wrong in this one instance.

        1. ^ This.

          Same with his take on Masterpiece Cakes.

          1. He was a better libertarian at WaPo than he has been at Reason. He did the reverse Weigel

            1. He did the reverse Weigel

              Sounds kind of kinky.

              1. That is just filthy.

              2. And likely the gayest thing ever posted on here. NTAWWT

            2. *faints*

        2. If Prof Volokh knows, or believes he knows, what the law is, BUT he is in disagreement of the law, he would never had filed an amicus curiae AGAINST the plaintiff. He obviously believes unions have every right to steal our money at their discretion, which by my definition is VERY UN-Libertarian.

          1. Not necessarily true (and almost certainly not true in Prof Volokh’s case). If loyalty to the rule of law or consistency of legal precedent or other higher principle outweighs his objections to a particular law, he could still have filed an amicus brief against the plaintiff regardless of sympathy for the plaintiff’s immediate situation. Remember that to a lawyer (and even more to a law professor), how the court gets to a decision can be more important than what decision they actually reach.

            Patrick Henry’s quote was VERY libertarian when he said “I may disagree with what you say but I will defend to the death your right to say it.” This is a variation of the same principle.

            1. Not necessarily true (and almost certainly not true in Prof Volokh’s case). If loyalty to the rule of law or consistency of legal precedent or other higher principle outweighs his objections to a particular law, he could still have filed an amicus brief against the plaintiff regardless of sympathy for the plaintiff’s immediate situation.

              Oh please. First of all, the law changes. Court reinterpret it all of the time. This is a Supreme Court case. They are free to overturn precedent and adopt a new philosophy. If Volkh didn’t think this was not only good law but the law as it should be, he would not be asking the Supreme Court to affirm it.

            2. Not Patrick Henry, nor Voltaire, to whom it is usually attributed.
              A 1906 biographer of Voltaire. Google is (sometimes) our friend 😉

              1. Amazing how many famous quotes are actually apocryphal.

                1. False but true. Seems fitting with today’s media.

                2. Stop quoting Lincoln.

              2. Google says they are your friend.
                Who will you google to find out if that is true?

        3. But… he’s wrong. Again, this isn’t tax money, so he’s not discussing the law, he’s discussing… fuck if I know is there a word for “something totally unrelated to the actual subject of the article and case?”

        4. I hope he’s wrong too.

          Janus is right.

          Unions don’t have a right to your damn dues without consent.

    2. Some of the these “closed shops” don’t even tell you ahead of time that you will have union dues automatically taken out.

      1. when I was much younger, my first job was as a bagger at a local supermarket. One of my duties was to wrangle the shopping carts left in the parking lot back into the store. For the princely sum of $3.25 per hour, the mandated minimum wage at the time, I was also given the privilege of becoming A teamster for $12.00 per month…and those fuckers wouldn’t even tell me where Jimmy Hoffa was buried!

      2. Happened to me with an adjunct teaching gig in DC. One day out of the blue SEIU starts sending me letters saying that I owed them money. These weren’t letters with a sales pitch saying how great their union is and how much O would like it if I joined. No, they were half threatening letters, like a letters from a collections agency. I never paid them and ignored everything they sent me, even certified mail. Nothing came of it and I eventually moved on after a couple of semesters anyway. I was just amazed at the boundless gall.

        1. How are thry going to get the resources to freeload if you freeload?

    3. tax money is not speech.

      According to McCain Feingold it is.

    4. Fat lot of difference it makes. If we don’t have a First Amendment right not to fund, through the government, speech with which we disagree, then why do we have the right in the context of union dues?

      1. I guess we could also give the union the power to arrest and imprison those that don’t pay their dues since the government can do that.

  3. I fought with the CWA (communications workers of america) for 2.5 years over this same issue. I kept getting ‘unless you sign this you will be “separated from the payroll”. I kept telling the shop steward ‘go ahead’, and they never did.

    Had I known this could have led to a Supreme Court I’d have retained a lawyer and gone to court with it.

    1. “Separated from the payroll” has to win some kind of Passive-Aggressive award.

      1. When I was eventually laid off (along with my whole department), we were notified that we were ‘declared surplus’.

        I asked if we were going to be sold at an Army-Navy second hand store.

  4. On quick correction. There are no “former Eagle Scout[s]”. Once an Eagle, always an Eagle.

    1. Good catch!

      1. Hi Valerie.

  5. If people don’t like a union for some reason, and don’t join it or quit, and enough people make that decision, then perhaps the union would change policies to get their precious money back. Or maybe some enterprising person would start a new negotiating entity that people would join. Maybe there’d be more than one. So we’d have a market for negotiating entities….

    1. That is precisely why the unions want this case to go their way so much. So long as they have mandated dues, they only have to not make people mad enough to cause a massive vote to overturn them. That’s a very low goal. If the vote goes for Janus, they will have to actually push people to join and get people to desire their services.

  6. It is appalling that Volkh could claim that forced union dues are the same as taxes. By Volk’s logic, why couldn’t the government force people to give money to any organization if it chose to?

    1. Prohibit Social Security recipients from donating to churches is the go-to argument in rebuttal to the idea that all the money belongs to the state, and I think the argument works here.

    2. By Volk’s logic, why couldn’t the government force people to give money to any organization if it chose to?

      Wasn’t the AMA and the insurance requirement essentially that exact argument?

      1. Yes, but the best trick of all was declaring that the mandate wasn’t a tax and didn’t violate anti-injunction so SCOTUS could rule that it… was a tax.

        Who says weirdness is confined to the quantum realm?

        1. Because of that and the way the mixed up “decision” was actually presented, I would think that the case won’t ever be used as precedent, which is a blessing.

          1. I think that is an excellent guess Juice. Like Ogberfell, that mess written for the specific purpose of achieving the desired result that would never be a precedent for any other situation.

            1. I don’t know the exact grounds on which the case was ultimately decided, but the Full Faith and Credit clause would seem to me to be in effect in their case. The state they lived in would not legally recognize their marriage that was done in another state. To me that seems like it violates Article 5 of the constitution. In the same Article 5, it says that citizens of any state shall enjoy the privileges and immunities of citizens of the several states, so any privilege granted in one state should be recognized in another. Under that reading, all states should recognize any concealed carry licenses granted in another state.

        2. What I like is the courts using Trump tweets and speeches to determine the immigration thing unconstitutional, and yet determining that Obamacare fees were taxes despite the exact opposite being the rallying cry to the law.
          Time to limit judges to 10 years, max. at all levels.

  7. I didn’t realize the guy was a child support specialist – makes him a much less sympathetic character. I mean, any government worker complaining about getting screwed by the government is already not getting any tears from me, but somebody whose job actually involves screwing people is really not on my list of people to feel sorry for.

    1. makes him a much less sympathetic character

      To you maybe, but you’re not the type that’s deciding this case.

    2. What are you talking about? I’m totally sympathetic to Stormy Daniels.

  8. Public employees should never have been allowed to organize against the taxpayers. It’s not like they have banded together to extract their fair share of the profits from the greedy management, there aren’t any.

    1. FDR agrees. Er, well, agreed.

  9. “I wasn’t allowed to say, ‘No, I don’t want to pay this.’ I either pay the union fee or I lose my job.”

    In other words, yes, you were allowed to say that. It’s just that there were consequences to doing so.

    “I wasn’t allowed to say, ‘No, I don’t want to wear the chicken suit.’ I either wear the chicken suit or the restaurant pays someone ELSE to run up and down the sidewalk trying to attract diners.”

    1. First of all we are not talking about a private employer. We are talking about the government. The government telling people they must do something to have a job is entirely different than a private party telling them that. If you want your employees to support the SEIU, have fun with that. But, the government is restrained by the Bill of Rights and specifically the First Amendment. That means if it wants to compel speech from someone, even an employee, it better have a compelling reason to do so and show proof that compelling the speech is the only way to accomplish whatever it is that they want to accomplish.

      So what is the government’s compelling reason to force its employees to support the SEIU? The SEIU to the extent it advances an interest, it advances the interests of the government employees, not the government. The taxpayers or their interests are in no way served by forcing people to join the SEIU. The SEIU is there to advance the public employees’ interests and it is up to them to join if they want. The government should not be able to use its coercive power to force its employees to do something that does not further a government interest.

    2. Also, your example is an important and inseparable part of the job. For example, if he was complaining about background checks to be hired. That would be foolish.

      The union is completely irrelevant to his job. It’s a third party. This is closer to “only registered Democrats may work at this government office”. Given the massive political campaigning that is done by public unions, Janus’s mandatory dues are supporting political speech that he might or might not want, but in any case, he has no choice in the matter.

  10. kinda tough to weep for the publicly-employed … unions should be barred from the activity

  11. Alt text: “Richard Dreyfuss”

  12. The same standards and questions could be asked about forced arbitration. Acquiescence to arbitration is also a “forced” condition of employment, even if some individual employee wants no part of it. The supreme court has said that is totally cool.

    1. The same standards and questions could be asked about forced arbitration

      The US government shouldn’t be able to demand forced arbitration as part of employment.

      Private employers certainly should be.

  13. The only purpose of unions in America today is to loot the workers to buy hookers and blow for mobsters and politicians. It’s been that way for generations.

    -jcr

  14. Interesting to read the defense of mandatory union dues as a tax. Reminds me of the Obamacare mandate being called or not called a tax based on the argument of the day.
    Freedom of association is the correct position, forced association is tyranny.

  15. Wait. That guy looks like a white male. He cannot have any rights of any kind anyway.
    Next case!

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