Union dues

What Janus Got Right—and Wrong

Compelled Subsidies and the First Amendment -- a new article with co-blogger Eugene Volokh, forthcoming in the Harvard Law Review

|The Volokh Conspiracy |

As readers of this blog will know, last month the Supreme Court held in Janus v. AFSCME that it is unconstitutional—it violates the First Amendment—for the state to force its employees to give any money to public sector labor unions. This decision overruled an earlier decision called Abood, which had imposed a compromise on this issue. Abood had said that forcing workers to give money to causes they opposed raised serious First Amendment problems, but that these concerns were outweighed if the money was spent on collective bargaining or other activities that were not overly political. Janus holds that this compromise is wrong, and that the money can't be exacted for either purpose.

In a new article, Compelled Subsidies and the First Amendment, Eugene Volokh and I assess the Janus decision, and the more general First Amendment issue. We argue that if you accept the premise that these compelled subsidies raise serious First Amendment problems, then the majority in Janus is quite plausibly correct. And this premise has been widely accepted or conceded by many thoughtful people, including the decision in Abood and the dissent in Janus. In other words, the logical implication of Abood is the overruling of Abood.

But we then argue that this premise is incorrect: compelling people to give money, by itself, is not a First Amendment problem but is rather akin to taxation. Taxation may be objectionable for many reasons, but it does not raise free speech problems, even when the government spends the money to advance causes we oppose, as it often does. We then analyze the consequences of the decision, including implications for bar dues, student activity fees, and the retroactive liability issues I've blogged earlier in this space.

Here is the introduction from the article:

Compelled Subsidies and the First Amendment

Sometimes the government compels people to pay money to organizations they oppose. A lawyer may be forced to fund a bar association, a college student to fund student group activities, a public employee forced to fund a labor union. Unsurprisingly, people may bristle at such compulsion. Nobody likes having their money taken, and knowing that it will be spent on causes one opposes seems to add insult to injury. But when is it unconstitutional?

For forty years, the Court has unanimously concluded that being required to pay money to a union, or to a state bar, is a serious burden on one's First Amendment rights. This burden, the Court has held, is generally unconstitutional when the money is used for most kinds of political advocacy.

In Janus v. AFSCME, a majority of the Court went further, and held that requiring public employees to pay union agency fees is categorically unconstitutional, even when the money is used for collective bargaining. Such public-sector collective bargaining, the majority held, is itself inherently political. And the government interests in mandating such payments don't suffice to justify such requirements. There was a strong dissent by four Justices, but as we discuss in Part I, we think the majority had the better argument on both of these two points.

But we think the majority—and for that matter the dissent, and the unanimous opinions in Abood v. Bd. of Ed. and Keller v. State Bar —erred on the preliminary point. The better view, we think, is that requiring people only to pay money, whether to private organizations or to the government, is not a First Amendment problem at all. The employees in Janus were not compelled to speak, or to associate. They were compelled to pay, just as we all are compelled to pay taxes; our having to pay taxes doesn't violate our First Amendment rights, even when the taxes are used for speech we disapprove of—likewise with having to pay agency fees. If we are right, as we argue in Part II, then the result in Janus was wrong.

In Part III, we turn from evaluating the decision to anticipating its consequences. We doubt Janus will have significant effects on government speech rights (Part III.A), but it will likely bar the funding of other forms of private speech. Janus will likely extend to a prohibition on state bar dues, at least so long as the bar is seen as sufficiently removed from other government agencies (Part III.B). It might also include constraints on public university student governments' use of student activity fees, though universities can create accounting workarounds that will practically allow such student activity funding to continue (Part III.C).

Finally, and perhaps most consequentially, Janus may lead to massive liability for unions that have collected the agency fees that are now viewed as unconstitutional. (Part III.D). Though the fees were seen as valid when collected, the Supreme Court's precedents say that constitutional reversals in civil cases are generally retroactive, so everyone in Janus's shoes can get agency fee refunds just as Janus himself could (at least so long as the statute of limitations has not lapsed). Moreover, private organizations such as unions are generally not entitled to qualified immunity or similar defenses. While the unions do have some possible arguments to mitigate the damages or try to claim a special form of good faith, those defenses are speculative, and cannot be counted on.

And here you can download the whole thing.

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  1. There’s a huge difference when money is collected by the government and when the government allows private organizations to forcibly collect it.

    1. Why? State and federal governments often contract with private entities to collect governmental debts, often under the argument that private entities are more efficient than bloated government bureaucracies. The IRS contracted out some of its debt collection services to several private third-parties this year.

      1. I’m not referring to third-party collection for government use. I’m referring to third-party use.

        1. Why do you think that matters? Federal and state taxes often go to private third-parties for their use.

          1. Because that would be general taxpayer standing, which would make any level of government undoable.

            1. Standing has nothing to do with constitutionality. Government conduct could be unconstitutional, but without judicial remedy owing to standing. If taking government tax money and giving it to private third-parties violates the 1st Amendment, in your view, who cares about standing?

              And why aren’t government employees who have to pay the money also “general taxpayer standing”? If the argument is that it walks and talks like a tax, you would treat them the same.

      2. Government contracts out private companies to provide a service to the taxpayers. That’s a huge difference between forcing government workers to pay a private organization whose one primary function is to lobby the government for more. Everything a public sector union does is political, as SCOTUS ruled. Volokh’s argument is hogwash.

    2. Exactly this. Janus was decided right. Its unjust to allow government to force organizations to collect me.

      1. Agree. Taking money for private organizations seems pretty similar to taking property for private developers. Kelo, anyone?

        1. I think Kelo is wrong, in case my sarcasm wasn’t obvious.

  2. Seems to me “compelled” dues and/or taxes that directly fund political advocacy constitute “compelled speech.”

    1. All taxation is compelled. How do you define “political advocacy”?

    2. Nothing is compelled in this context.

      Don’t like a company’s activities? Find a different investment. Many are available.

      Don’t like a job’s conditions, such as a union’s activities? Find a different job. Many are available.

      1. It is compelled, because a person is being forced by the government to make a job choice. Its not a private company distinction.

      2. Don’t like a job’s conditions, such as a union’s activities? Find a different job. Many are available.

        Because this is a government imposed condition. The same government which is supposed to be viewpoint neutral. Or do you believe requiring every person who works for the government to contribute 1/2% of their salary to the Church of the Flying Spagheti monster to be constitutional as part of continued employment? After all, don’t like the conditions? Find a different job. Many are available.

        Carry on, Tyrant.

        1. “The same government which is supposed to be viewpoint neutral.”

          The government is not supposed to be viewpoint neutral.

          “…requiring every person who works for the government to contribute 1/2% of their salary to the Church of the Flying Spagheti monster…”

          Can you think of any other provisions of the 1A–besides free speech–that this policy would implicate?

          1. The government is not supposed to be viewpoint neutral.

            Case law contradicts you on this. The government is prohibited from engaging in Viewpoint Discrimination.

            Can you think of any other provisions of the 1A–besides free speech–that this policy would implicate?

            Change it to the Rainbow Whigs Party if you want. The question stands.

            1. “Case law contradicts you on this. The government is prohibited from engaging in Viewpoint Discrimination.”

              Being viewpoint neutral is not the same thing as not “engaging in Viewpoint Discrimination”. And the discrimination you’re talking about is limited to public forums. The US has a viewpoint, its voters demand that it have a viewpoint. It enacts policies in support of those viewpoints. When Congress declares war, for example, do you think they’re required to be “viewpoint neutral”? When they tax cigarettes more than steel imports?

              “Change it to the Rainbow Whigs Party if you want.”

              And you think the government providing money to the Rainbow Whigs Party violates the 1A? See 26 USC 9001.

              1. Are you trying to be pedantic, intentionally muddying the discussion, or just plain not understanding what’s being argued?

                Being viewpoint neutral is not the same thing as not “engaging in Viewpoint Discrimination”.

                Tell me where that means the government can be discriminatory in who it hires? Because that’s what we’re talking about here.

                And you think the government providing money to the Rainbow Whigs Party violates the 1A? See 26 USC 9001.

                We’re not talking about the government giving money to someone, we’re talking about the government forcing employees to give money to someone. Would you care to try again?

                1. I’m pretty sure government speech need not be viewpoint neutral. For example, the government can fund Planned Parenthood as an expression that the government likes what Planned Parenthood does. The edict to be viewpoint neutral applies to government restrictions on non-government speech.

                  Most likely in this case, the government is expressing its view that having a single union represent all employees is a good thing. Note that part of the law wasn’t challenged in Janus.

                  1. That may have been bad phrasing on my part, but we’re not talking about government speech here. It’s the government being neutral when it comes to hiring. Going back to the original discussion:

                    Don’t like a job’s conditions, such as a union’s activities? Find a different job. Many are available.

                    Cause the Government is support to be Neutral on who it hires. EEO and all that. Not getting to apply conditions willy nilly that have nothing to do with doing the jub, such as requiring membership in the CCCP.

                    1. The statute at issue in Janus requires employees be represented by a single union. If that statute amounts to impermissible viewpoint discrimination, then a statute which says employees must wear uniforms would also amount to impermissible viewpoint discrimination.

                    2. IIUC CCCP translates to USSR?

                2. “Are you trying to be pedantic, intentionally muddying the discussion, or just plain not understanding what’s being argued?”

                  It’s hard to say. I think I’m having an internet conversation with a dog or a complete idiot, so we’re both victims here.

                  “Tell me where that means the government can be discriminatory in who it hires?”

                  Of course the government can be discriminatory in who it hires. State and federal governments are free to set conditions for employment. These conditions are, by definition, discriminatory. And they don’t have to be viewpoint neutral. For example, the federal government has a viewpoint towards illicit drug use and hires (and fires) based on that viewpoint.

                  “We’re not talking about the government giving money to someone, we’re talking about the government forcing employees to give money to someone.”

                  Taxes are compulsory you moron.

                  1. IIUC having a “union” tax that is only applied to union position workers would also be discriminatory unless they charge all tax payers with the “union” tax. Not to mention that it would be the government paying the union, IOW the union would not be an independent entity but a government contractor.

  3. the Supreme Court’s precedents say that constitutional reversals in civil cases are generally retroactive

    I think this needs to be re-examined. I believe this violates the intent of the prohibition on ex post facto Laws.

    1. Whatever the intent, was, the prohibition has applied only to criminal cases since the late 1700’s. And court rulings wouldn’t count anyway. Court rulings are almost always retroactive, by their nature.

  4. The government compels the payment of money to be funnelled to a private entity, who then uses the money to negotiate against the government.
    This is not the intellectual theory underlying taxation.

    1. Why not? What is “the intellectual theory underlying taxation”?

    2. ~90% of all testimony before Congress is government itself, lobbying Congress to reluctantly spend more money and expand.

      What difference does it make if you are forced to spend on private people to do the same thing?

      TFA makes such a shining, shining argument about this.

      I encourage the expansion of this idea, where the party in power commands citizens to directly pay money to lobbyiests that, in the party’s estimation, will benefit those people.

    3. I’m not sure if “negotiate against the government” is true as a whole.

      The government by choice has determined public unions are useful so ultimately don’t think they are “against” the government, nor does the entity come off as purely private in this context either.

      Also, money from taxation goes to lawyers who “negotiate against the government” in various ways, including in criminal trials, but also in other contexts (such as helping people with public benefits). The lawyers are sometimes directly working in public defender offices or the like, but private counsel are also used.

      Other examples can be found.

      1. Also, often public unions can reach common ground with the public employees that basically satisfy both sides. In a limited way, one side is “against” the government, but big picture, at the end of the day, not so much.

  5. There a wide gulf between compelled payment of money directly to the government for taxes and licensing fees and government-enforced compelled payments to an entirely private organization, no less when such payment is effectively a condition of employment with the government and the private entity is political beyond express lobbying of the government to improve the terms and conditions of employment for the specific workers the union represents.

  6. Do you believe that Citizens United was wrongly decided because of similar reasons? If it is acceptable under 1A to compel money for speech, why isn’t it also acceptable to prohibit money for speech? Why would one implicate free speech but not the other? Just because we can cast the former as a tax but not the later? If so, why does the power to tax trump the freedom to speak?

    1. At pages 18-20 of the article, we explain why we think Citizens United and Buckley v. Valeo are basically right, and why one doctrine implicates speech and the other doesn’t.

      1. > Money is not speech. But restricting us from spending money to speak restricts our speech?it makes it impossible for us to put up a billboard, buy a newspaper ad, and the like. – – page 18

        Money is not speech. But compelling us to spend money to support others’ speech restricts our speech — by having less money to put up a billboard, buy a newspaper ad, and the like.

        1. “…by having less money to put up a billboard, buy a newspaper ad, and the like.”

          This proves too much. If this were the case, all taxation would be illegal under the 1st Amendment, even if it isn’t going towards speech we disagree with. The 1st is going to be read consistently with the 16th (or the 10th).

      2. Your explaination is horse shit, and you can’t be so stupid as to not know it. Union Dues are not taxes.

        Is it your position, that taxes can be imposed by agreement between a private organization and agents of the government on their own? If so, can contractor A reach an agreement with government to tax contractor B and provide said funds to contractor A?

        Can a tax be imposed by a legislature for the purpose of funding a private organization that provides no product or service to government?

        1. If the minority in Janus is correct, what’s to stop the government from levying a tax and directly funding AFSCME?

          1. Only the political process.

        2. “Can a tax be imposed by a legislature for the purpose of funding a private organization that provides no product or service to government?”

          Why not?

          1. Can a legislature impose a tax as defined above, but give people who are not employed by the federal government an exemption equal to the tax?

            1. I don’t see why not but you must have something in mind. Help me out.

              1. 14th amendment violation? It’d be no different than taxing someone based on who they’re employer is (and a great way to drive an employer out of buisness). I believe this kind of tax was ruled unconstitutional when Puerto Rico tried to establish a tax which solely effected WalMart several years ago.

                1. Solely affecting one specific business might (I don’t know the case and there might have been another problem with it — maybe some sort of discriminatory Commerce Clause issue) be an issue, but if Puerto Rico taxed superstores alone, I think there wouldn’t be a 14A violation. Taxes favor certain types of businesses in various ways.

                  1. …but if Puerto Rico taxed superstores alone, I think there wouldn’t be a 14A violation

                    You may want to rethink that.

                    1. The district court’s judgment was upheld on appeal based on the Dormant Commerce Clause, not the 14A Equal Protection argument.

                2. “It’d be no different than taxing someone based on who they’re employer is (and a great way to drive an employer out of buisness).”

                  The power to tax is the power to destroy. That’s been the law around here for hundreds of years.

  7. “But we then argue that this premise is incorrect: compelling people to give money, by itself, is not a First Amendment problem but is rather akin to taxation.”

    So no one’s made a joke about John Roberts yet?

  8. The State of Nonesuch is controlled by the Republican party. It passes a law: every state employee must pay a yearly contribution of $500 to be payable directly to the Nonesuch Republican party.

    Another part of the law: every business that contracts with the State must contribute 1/2 % of the amount of the contract to the Nonesuch Republican party.

    According to this article, this is perfectly Constitutional.

    1. There is a not inconsequential argument that you may be right. I relates to gerrymandering issues, with a number of decisions by several courts (including SCOTUS) that seem to effectively allow government to legally take actions that have no other purpose than improving the electoral opportunities of the political party currently in charge, over other political parties.

      Would that logic not apply to your more direct modest proposal?

  9. A number of comments claim there is an important distinction between taxation and direct compulsion to fund a third party. But, that strikes me as merely a formal distinction without much effect given the government can still under Janus reduce my salary and use the money to fund the union.

    1. This seems to be the trend in court rulings: Where there’s a constitutional way to achieve an aim, the government will be permitted to achieve it in pretty much any way it choses, not being constrained to actually use that constitutional means it has.

      I think this is a serious perversion of the rule of law. Make the government jump through the hoops.

      1. Make the government jump through the hoops.

        Agreed. Each step must individually be lawful for the whole to be lawful. I think that’s one thing Baude & Volokh are missing here. While the dues may have been similar to a tax, the dues were not in fact a tax. I’d like to see the constitutional analysis on any tax enacted so as to explicitly target individuals of one employer.

      2. Things that “seem” a certain way to you are somewhat of an opaque thing.

        Courts, this isn’t new or anything btw, do try to avoid declaring things unconstitutional, especially if they are not dealing with something like free speech or the like. So, if the government might have had an ill motive, the act in question will still be upheld if there is a reasonable grounds available.

        The alternative is giving a lot more power to a few judges (maybe only one) to make close judgement calls decided by the electoral process. The principle of only striking down a law if there is a crystal clear need to do so was a “trend” in the 1790s. But, if you want to give more power in practice to the federal government here, that’s a way to go. If the person with the right enemies chooses the people, maybe you will be more satisfied with the results.

      3. “Where there’s a constitutional way to achieve an aim, the government will be permitted to achieve it in pretty much any way it choses…”

        That’s because the doctrine of constitutional avoidance is itself a constitutional mandate. See here.

    2. But, that strikes me as merely a formal distinction without much effect

      If that were the case, then unions wouldn’t be so heavily opposed to Janus.

  10. The article’s main point that this isn’t compelled speech might have some validity. However, I completely disagree with the idea that there’s no distinction between taxation and direct compulsion.

    Wasn’t the explicit holding in NFIB v. Sibelius that the government could tax people for not having health insurance, but they could not compel them to buy the insurance?

    It’s also incorrect to focus (like Josh R) on the end use. The “formal distinction” you’re dismissing it is the distinction between my money and someone else’s, a distinction we all make routinely. If I buy a hand grenade with my money I go to jail. If the government taxes me and then spends it on a hand grenade, I don’t.

    More generally, there are good political accountability reasons why taxes should be explicitly labeled as taxes. For example, CA has property tax limits imposed by referendum. Could they get around them with a law that each property owner has to send a check directly to a specified school?

    Finally, if it’s a tax, some equal protection considerations come into play. Should there be lower tax rates in locations where no union has organized? Even if the 14th Amendment isn’t fully reverse-incorporated against the federal government, imposing higher taxes in some states and cities seems like it would raise questions.

    1. “Wasn’t the explicit holding in NFIB v. Sibelius…”

      NFIB was a case about federal power. Janus is about state taxing power. The states have broader (plenary) powers than the federal government. The reason the government (arguably) could not “compel them to buy insurance” had nothing to do with the 1A. It had to do with the limits of the commerce clause. Illinois is not limited by the commerce clause. Nobody argued that Illinois (or Massachusetts) couldn’t force people to buy insurance. Because states force you to buy insurance all the time.

      Another distinction is that NFIB was a general mandate to all people–Janus involves compelled speech as a condition of employment by the government.

      1. I agree that it was about federal power, and that states aren’t limited by the commerce clause.

        However, the claim I was addressing is that there is no difference, or merely a “formal distinction” between taxation and direct compulsion to make a purchase. The SC made a distinction and seemed to thing they were different things. You’re right that it doesn’t make a difference here because states have both powers anyway, but I still object to conflating the two things, as the article seems to in a few places.

  11. Will Baude:

    “The better view, we think, is that requiring people only to pay money, whether to private organizations or to the government, is not a First Amendment problem at all. ”

    So you would not consider it a tacit statement of support of NAMBLA if you were forced to financially support them.

    And for those of you who will chime in saying that you can’t compare unions to NAMBLA explain how the difference between the two means that one is not a tacit statement of support and the other would be. Merely pointing out that there are differences between the two organizations does not mean that those differences apply to this specific issue.

    1. “So you would not consider it a tacit statement of support of NAMBLA if you were forced to financially support them.”

      The government funds things I don’t support all the time. Did you support the Iraq War just because you paid taxes?

      1. 1. Union fees are not a tax and Baude is indulging in a deliberate manipulation by conflating taxes with an order to financially support a private organization

        2. Restating a question isn’t the same as answering it

        3. How is financially backing something NOT supporting it?

        1. 1. Their argument is that this is form over substance. When the government taxes and spends, it is acting as a middle man. If you cut out the middleman, the money still ends up where you don’t want it (and comes from where you want it).

          2. Cool story.

          3. Because taxes and forced fees are compulsory. If the government forces me to fund NAMBLA, fuck no I wouldn’t consider that an implicit vote of support for NAMBLA. I’d loudly protest the spending and take it up at the ballot box.

    2. If tax dollars were used to fund NAMBLA, it would not raise First Amendment concerns even if you felt you were being forced to support NAMBLA.

  12. I think you are still missing a critical point. The government does not lobby itself.

    The government may have a point of view on a controversial topic. And the government may express that point of view to us directly or may spend money to have a third party express that to us indirectly. Thus, taxation to support an unpopular war is constitutional and even spending advertising dollars to try to make the war less unpopular is still constitutional.

    What the government should not be able to do is to give money to a third party so that the third party can lobby the government. That’s circular and is supported neither by the First Amendment nor by any logical argument for taxation. No one would argue that it makes sense to tax people generally then to give those tax dollars to PAC. It would be an obvious conflict of interest.

    And if the government could not take the money directly and give it to a PAC, then neither should they be able to compel anyone to pay directly to the PAC.

    And if they shouldn’t be able to divert money to themselves through a PAC, then by the majority’s reasoning (the “inherently political” argument), neither should they be able to divert money to themselves through a public-sector union.

    1. “That’s circular and is supported neither by the First Amendment…”

      State laws don’t have to be “supported” by the 1A. They just have to not violate it.

      “It would be an obvious conflict of interest.”

      What’s the constitutional infirmity with conflict of interest?

  13. For those who distinguish between taxes and compulsion of direct payments to third parties, what is your response to Baude’s examples of other direct payments to private parties that he claims do not raise First Amendment issues? Those examples are required payments to take the LSAT, carry automobile insurance, and acquire Apple computers

    1. Can’t speak for the others, but I would say he’s likely correct that they aren’t First Amendment issues. My objection is to saying compelled purchases and taxes are the *same thing*.

      1. I’m not sure that’s the key issue but I also don’t think your examples of required payments to third parties actually work.

        Automobile Insurance – That’s not actually how the requirement is written (or justified). The requirement is that if you exercise the privilege of driving, you must have the financial resources to make your prospective victims whole. For the vast majority of us, that means buying insurance but if you have enough free cash, you can put some aside and self-insure. So 1, it’s distinguishable as condition on a privilege rather than a right (a questionable legal fiction but a long-standing one) and 2, you don’t technically have to buy from a third party. You could, in the right circumstances, put the money up yourself. Auto insurance is further weakened by the fact that there is a thriving market for auto insurance. Even if you can’t afford to self-insure, you have the ability to choose between insurers and you can include their lobbying activity and positions in your considerations of carrier.

        Apple computers – That also seems like a stretch. What the design school (a subset of a state-funded school) really required was a personal computer compatible with the tools that they intended to teach. Those tools happen to only be written for the Apple. So this is identical to requiring a carpenter’s apprentice to buy a hammer and various woodworking tools which he/she will keep even after being trained on their use. (con’t)

        1. (con’t) It is an integral part of providing the service that the customer (the student) wants to buy.

          LSAT – This is the only example that seems maybe workable to me. I say maybe because there is an argument that the LSAT is itself an anti-competitive activity serving no purpose other than a barrier to entry to a particular type of commerce and thus could (or maybe should) be illegal. But that would be an argument based on anti-trust statute, not necessarily constitutionality. In its defense, the LSAT is, in theory at least, an independent predictor of success in law school and part of how schools rank and select candidates.

          I think the real differentiator is not just that they are third parties but that any lobbying done by Apple, a particular insurance carrier or even the LSAC is incidental to their primary function. Janus, on the other hand, argued that the core functions of a public sector union are inherently political. In other words, not incidental and not even theoretically separable. (con’t again)

        2. (con’t and apologies for being so wordy)

          It’s not merely “pay the government vs pay a third party” – it’s “pay the government to do X”. To my mind, that will be constitutional for some values of X and not for others.

  14. Sometimes the government compels people to pay money to organizations they oppose. A lawyer may be forced to fund a bar association, a college student to fund student group activities, a public employee forced to fund a labor union. Unsurprisingly, people may bristle at such compulsion

    Your basic premise needs work. It’s not at all obvious why politically controlled public funding for ‘purely expressive’ activities (e.g., distribute-to-student-groups portion of student fees, NEA/NEH grants, etc) are OK.

    They should be different than student facilities fees (e.g., student gyms) or general infrastructure. As an aside, it was precisely my experience seeing student fees distributed that made me so cynical about politicians.

  15. So you’re not going to go with “the two faces of the Janus decision”?

  16. I disagreed with the Court in Janus, but I’m having a hard time with your argument that government employment conditioned on payment to a private organization which in turn donates a portion of those monies to political candidates does not raise First Amendment issues. While your article mentions and distinguishes Buckley, it sure seems to me that discussion regarding the upholding of public financing and the assymetric public financing through compelled agency fees is warranted. Thank you for the article and your original amicus brief, but I’m still tentatively on the Keller/Abood side.

    On a semi-related note, I would love to see “the Otter Principle” become a common term.

  17. NToJ = union shill. My moneys on it. I’m sure somehow, someway, you’re being compensated by forced dues. A lawyer working for a left leaning think tank? Union lawyer? Wife or husband work in the public sector?

    1. You seem anti-union. Why? Is that your lack of education talking? Your bigotry? Your resentment toward accomplished, modern people living in successful communities? Were you told to take this position by your pastor, or by your militia captain, or by your local Klan leader?

    2. Swing and a miss, Sherlock. I live in merit shop Texas. My clients aren’t fond of unions. The discussion is about broader 1A constitutional law, not just an opportunity for you and your liberal counterparts to engage in culture war bullshit.

  18. Isn’t forcing non-members to pay money to unions similar to taxation without representation?

  19. At some point, the authors should test the comparison of union fees as the equivalent of taxation (which makes it ok?) against the takings clause. If the government can take private property from A and give it to B without styling it as taxation, the takings clause becomes a nullity.

    Of course this assumes that Kelo was wrongly decided, but I don’t think the authors agree with Kelo?

    1. It would be an odd read of the takings clause to interpret it to prevent taxation, since references to taxes in the Constitution are more ubiquitous than takings.

      1. Exactly. The Takings clause does not forbid taxation, but it does forbid taking private property from A (deducting from the wages of employees) and giving to B (the union). If not done through taxation, it is a taking. So you can’t just say “it’s like a tax” so it should be legal. No. Otherwise, the government could just say “we have the power to tax you for something, so it is ok if we just go ahead and take directly from you.” If that is the case, then the takings clause is a nullity.

  20. So Profs. Volokh and Baude would not only have ruled against Mr. Janus, but also Mr. Abood…

    1. Uh — yes. They were quite explicit about this.

      Some years ago, I was involved in a First Amendment challenge to student activity fees. The particulars are boring, but because the Supreme Court’s Southworth case was squarely against the plaintiff, he relied on a convoluted argument using the Abood line of cases. I had had no reason before then to look at the cases after Abood, but quickly became convinced, after looking at all the confusion and uncertainty reflected in them, that it had been a mistake for the Court to go down that road in the first place. There were two ways out of the mess, repudiate Abood or go full-out with what the Court did in Janus. Cynical as I am, I thought the matter would be settled by nose-counting and who got to appoint whom rather than serious legal reasoning. And so it went.

  21. Of course this isn’t a tax or a taking, or a 1A issue. It’s requiring the non-members in the bargaining unit to pay a fee for services received from the union, including bargaining for better salary and working conditions, individual representation against job actions or possible job actions, representation on working groups and committees, etc.

    If you pay a plumber for work done in your house, are you espousing the plumber’s political views? Do you have a 1st amendment right not to pay him?

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