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

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.