Two years ago this week, the Supreme Court protected the free speech rights of public employees in the case known as Janus v. AFSCME. It gives a powerful tool to public workers who want to be free of unions.
The decision said that everything government unions do is political, so forcing public employees to pay them violates their First Amendment rights. Thanks to Janus v. AFSCME, public employees can now choose not to pay union fees. This option, called the right to work, extends to all public sector workers across the county.
But Janus v. AFSCME went further than just the right-to-work precedent. The Supreme Court also said that public employers must protect their employees’ choice: They need evidence of an employee’s consent before they withhold money from that person on a union’s behalf. Employers must fully inform workers of their rights and on a regular basis must give them a chance to opt out of paying.
Though the court issued a ruling, states are the ones to carry it out. They were slow to do it at first. But recently, top legal officers in Alaska, Texas, and Indiana have started to act on it, and bills to the same effect have been introduced in over a half-dozen states. And as attorneys general, governors, and legislators act, the move to comply with Janus v. AFSCME is snowballing.
In some states, employees have had a very narrow, union-designated window for opting out — as little as a few weeks each year. The states moving to implement Janus v. AFSCME say that’s not enough. Instead, each public employee should be able to make a fresh, informed choice without pressure.
An advisory opinion from Alaska Attorney General Kevin Clarkson said that state employees in Alaska need to be asked if they wish to opt in rather than be forced to opt out of paying union fees. Gov. Mike Dunleavy quickly followed up with an executive order to enforce the opinion.
Echoing his counterpart in Alaska, Texas Attorney General Ken Paxton said that a one-time authorization isn’t sufficient. Paxton wrote in an advisory letter that a “one-time, perpetual authorization” for deductions “is inconsistent with the Court’s conclusion in Janus v. AFSCME that consent must be knowingly and freely given.” He suggested that asking public sector workers every year if they wanted to pay union fees would probably pass constitutional muster.
Less than a month later, in response to a letter from Indiana state Sen. James Buck, the attorney general in the Hoosier State said something similar. Public employees should be given a periodic request to opt in (not just out) of paying union fees. Further, they should be informed of their rights, and public employers should not simply take the union’s word for it that public employees want to pay.
Protecting the First Amendment rights of public employees isn’t just left to governors and attorneys general. Legislators in multiple states have introduced bills to protect their public workers. Earlier this year, the Florida House passed H.B. 1, introduced by Rep. James Grant, which requires that public employers have evidence that public employees actually want to pay union fees before they deduct them.
States still need to do things to carry out the Janus v. AFSCME decision two years after it was issued. But due to the effort of attorneys general such as Clarkson and Paxton, governors like Dunleavy, and legislators like Grant and Buck, it’s happening. States are starting to protect the free speech of public employees across the country.
F. Vincent Vernuccio is a senior fellow at the Mackinac Center for Public Policy.
