The aftershocks of the Supreme Court’s blow to organized labor continue to reverberate. Janus v. AFSCME, the court’s 2018 5–4 decision, granted public sector employees in every state a right to reap the benefits of union representation without paying for them. Backers of the litigation intended to weaken unions’ bargaining power and drive them into financial ruin. Many workers seized upon this opportunity to free-ride: After the ruling, at least 210,000 workers who previously paid fair share fees (also known as agency fees) to cover the cost of collective bargaining stopped paying a penny to their unions. AFSCME, the union at issue in Janus, lost a staggering 98 percent of its fair share fee payers.
But what about public sector employees who want to retain union membership and pay dues? On Tuesday, Alaska Attorney General Kevin Clarkson announced a plan to make it more difficult for the state’s employees to pay for union membership even if they want to. Clarkson’s scheme would place onerous new burdens on union membership in the name of free speech, using the power of the state to effectively dissuade workers from bargaining collectively. It goes so far beyond Janus that it creates First Amendment problems of its own.
To understand the extreme nature of Clarkson’s proposal, it’s important to remember what Janus does and does not say. The ruling overturned a 41-year-old SCOTUS decision that drew a distinction between union membership and fair share fees. Under this precedent, public sector unions could not force employees to become full-fledged members. They could, however, collect fair share fees from nonmembers, which would help fund collective bargaining. The unions could not spend fair share fees on political expenses, only nonpolitical matters like contract negotiation. Janus held that, in fact, the issues involved in collective bargaining—from wages to discipline to bathroom breaks—are “inherently” political. It invalidated compulsory fair share fees in nearly half the country, finding that they constituted “compelled subsidization” of political speech in violation of the First Amendment.
To no one’s surprise, Janus led to a mass exodus of fair share fee payers. But membership in the country’s major public sector unions has remained relatively stable or even grown slightly. Because the outcome of the case was entirely predictable, organized labor was immediately prepared to counteract it. The small uptick in membership is not always enough to counteract the effect of Janus on the union’s bottom line, though it has forestalled financial ruin.
Clarkson wanted to change that. In response to a request from Alaska Republican Gov. Michael J. Dunleavy, the attorney general urged an overhaul of the process by which the state’s public workers participate in unions. Clarkson took a sweeping view of Janus’ requirement that workers who wish to “waiv[e] their First Amendment rights” by supporting a union must “clearly and affirmatively consent” to any payment with “clear and compelling evidence.” Right now, under Alaska law, unions collect payroll deductions from union members who provide written authorization. That might seem to meet the Janus standard; there isn’t a much clearer form of consent than a declaration of an individual’s intent.
But to Clarkson, explicit consent is not enough. The attorney general insisted that the current system does not “ensure that [state] employees are being told exactly what their First Amendment rights are before being asked to waive them.” Moreover, “there is no guarantee that the unions’ forms clearly identify … information about the consequences of the employee’s decision to waive his or her First Amendment rights.” Nor is there any “guarantee that the employee will be told what kinds of speech a particular union will engage in.” According to Clarkson, “without that knowledge, a waiver of the employee’s rights against compelled speech can hardly be considered knowing and intelligent.” Finally, because workers provide consent directly to the union, “this process is essentially a black box the State cannot peer inside of.”
To remedy this putative problem, Clarkson recommended that the governor create an online system and new written consent forms that repeatedly ask union supporters if they’re sure they want to pay. Employees must tell the state that they wish to pay union dues or fair share fees every year. If they miss the opt-in window, they don’t pay that year.
Clarkson’s plan allows the state to warn workers about the “consequences” of their decision to “waive [their] First Amendment rights.” They may be told, as Clarkson wrote, that if they help fund the union, they will be “powerless to revoke the waiver of their right against compelled speech.” And if they become “unhappy with the union’s message,” they will still be “forced … to see their wages docked each pay period for the rest of the year to subsidize a message they do not support.”
This strategy appears to come straight from another conservative playbook. If it’s implemented, unions would be treated like abortion clinics in red states: heavily regulated and compelled to provide a state-mandated script explaining all the reasons why workers should not want to join a union. Employees themselves, meanwhile, would be treated like abortion patients in red states: forced to hear the state explain why they should not make a certain choice before they are allowed to choose.
The anti-abortion parallel is no coincidence. Clarkson is a staunch conservative who previously worked as an anti-abortion and anti-LGBTQ activist. He defended a homeless shelter’s right to turn away trans people and a borough’s ability to bar Jews and Muslims from delivering invocations at assembly meetings. His recommendation to Dunleavy seems to draw on his earlier advocacy as a culture warrior.
Under Clarkson’s scheme, unions would also have to announce to prospective members—and, by extension, to the state— “what kinds of speech [they] will engage in” and “what positions [they] will take.” (It is unclear how they can fulfill this demand without knowledge of the future.) Rather than treating unions like equal partners at the bargaining table, Alaska will treat them like subordinates whose every move is subject to state scrutiny.
Janus does not require this level of interference between unions and employees. State attorneys general across the country have come to a contrary conclusion, asserting that Janus means what it says: The ruling bars unions from deducting fair share fees without a worker’s consent but does not necessitate some radical revision of the payroll deduction system. State agencies in California, Connecticut, Illinois, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Vermont, and Washington have all read Janus this way. Only Clarkson has claimed that the decision blows up existing union structures.
There are two good reasons why no other state has sided with Clarkson. First, the Alaska attorney general manipulates the language of Janus to imply a breadth that does not exist. Again, Janus involved only fair share fees, which unions deducted automatically; its language insisting that employees “clearly and affirmatively consent” pertains exclusively to “nonmembers” who “are waiving their First Amendment rights.” It does not apply to full-fledged members—quite sensibly, since anyone who joins a union presumably consents to its activities in the process. Clarkson elides this distinction, obliging union members to jump through hoops that Janus doesn’t require.
Second, Clarkson’s vision may actually clash with Janus itself. As Seattle University School of Law professor Charlotte Garden has written, if the First Amendment grants workers the right to opt out of union dues, it should also grant workers the right to opt in to paying dues free from onerous requirements. Ironically, in his ostensible effort to comply with Janus, Clarkson would impose the same kind of restrictions on free expression and association that Janus prohibits. A First Amendment that shields workers’ right not to subsidize a union must also safeguard workers’ right to finance a union without heavy-handed state interference.
Unfortunately, the Supreme Court’s conservative justices don’t care much about consistency when it comes to weaponizing the First Amendment against progressives. The conservative majority has already forbidden states from compelling “crisis pregnancy centers” to disclose their lack of a medical license—and, at the same time, allowed states to force abortion providers to spew anti-abortion propaganda. Clarkson is likely betting that these justices will take a similarly hypocritical approach to unions, granting stronger free speech rights to union opponents than to union supporters. If the governor adopts his plan and the courts uphold it, expect more states to transform Janus into an all-purpose cudgel against union membership.
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