Janus v. AFSCME: Will Supreme Court Side with Koch Brothers in Their War Against Organized Labor?

StoryFebruary 27, 2018
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On Monday, the U.S. Supreme Court heard arguments in a key case that could deal a massive blow to public unions nationwide. The case, Janus v. American Federation of State, County and Municipal Employees, deals with whether workers who benefit from union-negotiated contracts can avoid paying union dues if they opt not to join the union. The lead plaintiff, Mark Janus, is a child support specialist who argues that a state law in Illinois allowing the union to charge a fee for collective bargaining activities violates his First Amendment rights. Numerous right-wing groups have trumpeted his claim in their latest attempt to weaken the political power of public unions. The groups include the Koch brothers’ Americans for Prosperity, the State Policy Network, ALEC—American Legislative Exchange Council—and the Bradley Foundation. We speak to Amanda Shanor, staff attorney at the American Civil Liberties Union, which filed an amicus brief in Janus v. AFSCME in support of AFSCME.

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Transcript
This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now! I’m Amy Goodman, with Juan González.

JUAN GONZÁLEZ: Well, on Monday, the U.S. Supreme Court heard arguments in a key case that could deal a massive blow to public unions nationwide. The case, Janus v. American Federation of State, County and Municipal Employees, deals with whether workers who benefit from union-negotiated contracts can avoid paying union dues if they opt not to join the union. The lead plaintiff, Mark Janus, is a child support specialist who argues that a state law in Illinois allowing the union to charge a fee for collective bargaining activities violates his First Amendment rights. Numerous right-wing groups have trumpeted his claim in their latest attempt to weaken the political power of public employee unions. The groups include the Koch brothers’ Americans for Prosperity, State Policy Network, ALEC—the American Legislative Exchange Council—and the Bradley Foundation.

AMY GOODMAN: Over the weekend, union members gathered in cities across the country for a Working People’s Day of Action to speak out against the case. This is AFSCME President Lee Saunders speaking Saturday at a rally here in New York City.

LEE SAUNDERS: They are not making a legal argument in front of the Supreme Court. They’re making a political attack on all of you. That’s what this is about. It’s a political attack. They don’t care about the First Amendment. They all care about making more money and having more wealth, at the expense of all of you. And they’re not just going after unions. They’re coming for everyone who threatens their power, who threatens their privilege. All of us who want to unrig that economy so it’s fair, they’re coming after you.

AMY GOODMAN: Janus v. AFSCME follows a similar case the Supreme Court heard in 2016, Friedrichs v. the California Teachers Association. The court deadlocked 4 to 4 in the case, after conservative Justice Antonin Scalia died suddenly. It’s now expected that Trump appointee Justice Neil Gorsuch will break the tie. During Monday’s proceedings, Gorsuch did not ask any questions.

For more, we’re joined by Amanda Shanor, who is staff attorney at the American Civil Liberties Union, which filed an amicus brief in Janus v. AFSCME in support of AFSCME. She’s also completing her Ph.D. at Yale Law School. Her recent piece in The Nation is headlined “Public-Sector Union Fees Don’t Violate the First Amendment.”

Well, why don’t we start there? Talk about the basics of the case. Who is Janus? And take it from there.

AMANDA SHANOR: Hi. Thank you all so much. I’m excited to be here.

So, Janus is a public sector worker in Illinois, and he has brought a First Amendment claim against an Illinois law that authorizes unions to collect dues not only from members, but from people who are nonmembers, but employees that the union must legally provide services to. So, for instance, if a nonunion employee has a grievance, the union still has to represent that person in grievance procedures. And so, what the Illinois law does is permit the union to charge those fees to the nonmember workers, but a lower fee called an agency fee or a fair-share fee. And what Janus has done is brought a First Amendment case, claiming that he has a First Amendment right not to pay for those services that the union is legally required to provide him.

JUAN GONZÁLEZ: And is Janus also arguing that he would not have to benefit from wage increases or from union support of members who are fired unjustly?

AMANDA SHANOR: No, no. So, what he’s looking for is essentially to get—under the First Amendment, to get something for nothing. So, he would like to have a First Amendment right to benefit from the union, but not to have to pay for the costs of the functions that the union performs on his behalf and on behalf of all the other workers.

This is—as, Amy, you just said, this is a case that falls onto a series of different cases in the Supreme Court that have been pushing an anti-union agenda under the First Amendment and a robust First Amendment right. And the idea of the case, or the question presented in the case, is whether the Supreme Court is going to stick with decades of precedent, in which it reached a really vital compromise that balances the interests not just of dissenters from the union, like Mark Janus, but also individuals who do choose to associate in the union, and the government’s vital interest in deciding how it wants to run its own workplaces and promote workplace peace. And so, the question really is whether or not only Mark Janus’s rights or anti-union, union dissenters’ rights will prevail in this case, or whether or not the court is going to stick with some kind of compromise that also reflects and embraces and respects the First Amendment rights of union members and the government’s key interest, I think, in managing its workplace as it sees fit.

JUAN GONZÁLEZ: Well, Amanda, in the Supreme Court hearing, Justice Neil Gorsuch was silent, but Justice Kennedy, who’s also considered key in this case, was not. Could you talk about some of his questions and your sense of how Justice Kennedy is leaning?

AMANDA SHANOR: Sure. So, you know, it’s interesting. So, in a case in the early '90s called Leonard, Justice Kennedy, along with Justice Scalia, embraced a midline compromise position that would limit the types of activities that a union could charge to nonmembers under fair-share fees, but in—and so, I think a lot of speculators thought potentially Justice Kennedy would seek to go in that direction here. And I think there's still a lot of hope for that. His questions, though, at argument suggest that he is more skeptical of unions and more embracing of broad First Amendment rights than I think some court watchers had potentially anticipated. So, we’ll see. And Justice Gorsuch didn’t say anything, which means that we don’t really know where he is in this case.

And I think, you know, one of the big questions here is how much room state, local, federal governmental actors will have, how much discretion they’ll have, to decide how to manage their workforces. And this is not—this is not just a case about unions. It’s a case about the broader architecture of the First Amendment and how much it will hamstring governments in their ability to do what they see fit. And it’s possible that Justice Gorsuch will see that and understand that this case has much broader implications than just for unions, for public sector unions.

AMY GOODMAN: And, Amanda Shanor, the Koch brothers’ involvement with trying to bust unions and pushing anti-union legislation?

AMANDA SHANOR: So, you know, it’s interesting. This case is part of a much broader both push by various social—civil society groups, but also, more broadly, by the business community, to push a more libertarian First Amendment agenda that—to use the First Amendment to challenge what we might otherwise understand as regular economic regulation, in areas not just for unions, but the government’s ability to act on climate change or public health or a range of different activities. And so, this is really just one, though I think a very paradigmatic one, of the First Amendment’s turn into a really robust deregulatory tool. And, you know, the real question before the court is: What’s the limiting principle on that? Like at what point will the court balk and say, “No, it’s important that governments have the abilities to do things like manage their own workforces”?

JUAN GONZÁLEZ: Well, in this case, Janus is arguing for his free speech rights. And the ACLU, filing an amicus brief, is usually on the side of free speech rights. Could you talk about your interpretation of why this case is so important and why the ACLU has stepped in?

AMANDA SHANOR: Sure. So, the ACLU is second to none in defending, robustly, First Amendment rights of free speech, association and assembly, both people’s rights to associate and to not associate, as they see fit. But under decades of Supreme Court precedent, it doesn’t violate anyone’s First Amendment rights to be required to pay fair-share fees in cases like this. And that’s because, under decades of precedent, the court has recognized that in public workplaces it’s not just the rights of individuals who don’t want to associate, but also the rights of people who do. So there are multiple First Amendment, like, interests, vital interests, at stake. And what the court has done historically is tried to balance those interests along with the government’s interest in promoting labor peace by respecting—by recognizing one union. And so, in doing that, the court is balancing multiple First Amendment interests.

And so, individuals like Mark Janus who don’t want to associate with a union simply don’t have a First Amendment right not to pay fair-share fees. They do, not to fund the ideological activities of a union, and that’s what this compromise in Abood reflected, but not to pay for the types of services, like grievance procedures, that they benefit from and that the union is legally required to provide them. And so, as the ACLU, we very much, you know, have—we joined this—we filed an amicus brief in this case to advocate for the proper resolution of the First Amendment, which is—

AMY GOODMAN: Amanda, we’re going to leave it—we’re going to leave it there and say thank you so much for helping us understand this case. Amanda Shanor, staff attorney at the American Civil Liberties Union.

And that does it for our show. Today we want to celebrate our 22nd anniversary. It’s actually this month. It was last week, but there was too much news to do it then. You see our cake here, 22 years covering the movements changing America and the world. A huge thank you to all the people who have made Democracy Now! possible through the years, our staff and volunteers, over 1,400 public radio and television stations around the world, especially our listeners and viewers. Don’t forget, you can keep up with us on Facebook, Instagram, Twitter, YouTube, Roku. Thank you, everyone, for supporting news with a heart, for helping us go to where the silence is. I’m Amy Goodman, with Juan González. Let’s blow it out, Juan.

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