Two-Faced Janus

The Supreme Court’s decision on public sector unions can’t be reconciled with a previous decision on collective speech rights: Citizens United.

Protesters hold signs that say things like, "UNION PROUD."
Union activists and supporters rally against the Supreme Court’s ruling in Janus v. AFSCME on Wednesday in Manhattan. Drew Angerer/Getty Images

In the past decade, the U.S. Supreme Court has twice weighed in on collective rights to political speech. With its first gambit, Citizens United v. FEC, it affirmed this associational freedom. What individuals have the liberty to do alone, opined Justice Antonin Scalia, they have a liberty to do together—even if some shareholders might object to the whole business. In its second maneuver, Janus v. AFSME, the court violated a fundamental tenet of political equality. It refused the same array of associational rights to unions for no discernable legitimate reason. For the union, but not for the corporation, it permitted the existence of an individual dissenter to undermine the rights of the majority.

When it comes to enforcing collective rights, courts face an intractable dilemma. There’s always a possibility that a minority within the group might object to how the rest would like to wield their collective right. Unless some kind of bargain can be struck, protecting the rights of some occasionally requires impugning those of others. To give a famous and theoretically seminal example, allowing the francophone Québécois majority the right to maintain French as its official language means denying the Anglophone minority’s right to speak English at its convenience. The other option, refusing to mandate French as the official language, might lead to the disintegration of francophone culture and, consequently, a failure to respect the rights of those who value their francophone identity. There are no easy solutions. Nevertheless, in these kinds of situations, the court must pick a winner: the dissenter or the majority. Or it can try to find a compromise that no one is happy with. It’s a tough and context-sensitive question, and political philosophers across the ideological spectrum—from Jürgen Habermas and Seyla Benhabib to Joseph Raz and Brian Barry, from Chandran Kukathas to Charles Taylor—have dedicated tomes of hard work in an as-yet unresolved effort to solve the problem in a fair and impartial way.

So the issue here is not so much that the Supreme Court picked the wrong solution to the dilemma of group rights—as yet, there doesn’t seem to be a right solution. The problem is that it arbitrarily applied different solutions to the quandary for no good reason. When it comes to weighing the inevitable conflict between collective and individual speech rights, the court seemed to care a whole bunch about the fate of the individual nonconformist when it happened to serve the interests of big business. But when it didn’t? Not so much. Meanwhile, all else is equal: Both shareholders and workers are forced to either obey the dictates of a group decision-maker (whether a union representative or corporate board of directors) or quit the association. The same rights are at issue: an (ostensible) First Amendment right of the union to engage in and enforce collective bargaining, a First Amendment right to engage in corporate political speech. Thus, the outcome is nothing less than a violation of political equality in favor of dissenters who happen to dislike unions.

For example, when it came to collective corporate speech, Justice Anthony Kennedy, in Citizens United, was quick to dismiss the concerns of a shareholder objecting to corporate speech in favor of the important speech rights of the collective. If a dissident within the group could hold up group political speech with a veto right, as the court’s dire prognostication went, what fate awaits America’s media corporations and all the others who want to engage in cooperative speech? In stark contrast, as we learn from Justice Samuel Alito in Janus, the dissenting worker gets a lot more respect. So much respect, in fact, that she’s arguably given the power to destroy the union entirely by free riding off the dues payments of others. As political scientists, economists, or anyone who’s been stuck in traffic in a poorly enforced HOV lane might argue, free riding kills collective action just as surely as a campaign finance law can kill corporate speech.

In fact, there is good reason to think that enforcing individual rights creates a bigger existential crisis for unions than it does for business corporations. Should dissenting shareholders demand their money back (despite laws enforcing asset lock-in), corporations can finance themselves with retained earnings. Unions, meanwhile, only have dues. Taking those dues away means killing the union, and killing union speech, full stop. This is as it should be. Funding unions with dues alone keeps them loyal to workers and not reliant upon the good graces of outside fundraisers, consumers, and politicians who may have ulterior motives and divergent interests. It makes sure unions do the job their members mean them to do: protecting employees.

But the feature of Janus that really shows off its two-faced logic is not its asymmetrical and arbitrary treatment of dissident rights. Rather, it is the court’s disrespect for union democracy, viewed in light of its concurrent faith in whatever kind of quasi-democracy that exists within the corporation.

Democracy’s presence within a group, as Kennedy pointed out in Citizens United, makes it more morally acceptable to force a majority’s decision upon an individual. At the very least, her own thoughts were considered before action was taken. Recognition was given for her preferences as a political equal. Each vote was counted, one by one. The collective decision, in other words, has some claim to being a fair resolution of the minority-majority conflict because it is the result of an impartial procedure that respects the equal political rights of all. As a result, Justice Kennedy was able to justify the forcible subsidization of objectionable corporate speech in Citizens United because any abuse might be “corrected by shareholders through the procedures of corporate democracy.”

Of course, Justice Alito found no such abuse-ameliorating attributes in union democracy. Even though there is every reason to think that union democracy is more robust than its corporate cousin. Unlike corporate “democracy,” in which mostly uninformed shareholders—the anonymous and diversified beneficiaries of institutional portfolio managers—are forced by capitalism, as corporate law expert Leo E. Strine Jr. notes, to invest in companies whose political activities remain nontransparent and inaccessible, unions at the very least give members a clear up-or-down vote on the contracts whose costs are meant to be covered by union agency fees. The same contracts the formation and enforcement of which was deemed “speech” by the Janus court. There was fair democratic public referendum, a one-by-one vote, on the specific collective exercise of the First Amendment right at issue. Corporate shareholders are afforded no such opportunity. Instead, they have to wait until the next round of director elections, navigating staggered boards, poison pills, proxy voting requirements, and other rules specially designed to deaden their franchise rights.

Perhaps all this should come as no surprise. The law has supported the collective action of capital without controversy for at least 100 years. Yet unions have a much better claim than corporations when it comes to protecting the equal speech rights of their dissident members. And, not for nothing, given unions’ superior democratic credentials, they also have a better claim to collective speech rights in the first place. But, perhaps just because they are labor and not capital, the court didn’t seem to care. If it had applied the standard of Janus to Citizens United, if it hadn’t been so two-faced, the world might have looked very different.