The Long Road
Janus v. AFSCME is not an isolated case. Rather, Janus is part of a continuum of cases litigated by the National Right to Work Foundation in its tireless 50-year legal war against compulsory unionism.
Since its founding in 1968, National Right To Work Legal Defense Foundation attorneys have represented tens of thousands of employees in several thousand cases challenging forced union fee requirements.
Read on to learn more about the long road to Janus v. AFSCME. ...
Abood v. Detroit Board of Education (1977)
Pictured are three of the many Abood plaintiffs on the steps of the Supreme Court of the United States. (left tp right: Anne B. Parks, Bob Johnson, and Alberta Keyes)
Abood was the first Foundation case challenging public-sector union fees to reach the U.S. Supreme Court. Foundation attorneys argued that forcing unwilling public employees to pay for unwanted union advocacy violated the employees’ First Amendment right to choose which speech is worthy of their support.
Unfortunately, the Abood Court chose to 'split the baby' by holding it unconstitutional to force employees to pay for union political activities, but constitutional to force employees to pay a union for bargaining with the government.
As the dissenting Supreme Court Justices realized, this new distinction made little sense because bargaining with the government is a political activity. It is speech directed to the government indistinguishable from political lobbying. And, if the First Amendment prohibits anything, it should prohibit the government from dictating who speaks for citizens in their relations with the government.
Yet, this was untenable distinction between union political activities and union bargaining activities was the constitutional line the Abood majority settled upon.
Ellis v. Railway Clerks, 466 U. S. 435 (1984), which held that unions could not force employees to pay for union organizing activities.
Chicago Teachers Union v. Hudson, 475 U. S. 292 (1986), which held that unions must provide nonmember employees with audited financial disclosures before taking their money.
This case resulted in what many now call "Hudson Notices," demands by public sector employees to have the union verify their agency fee charges through independent accounting. (An example of a Hudson request appears behind this text.)
Communication Workers v. Beck, 487 U.S. 735 (1988), which held that private sector employees cannot be forced to pay for union political activities.
The court opted to apply the Abood and Hudson reasoning to the private sector as well.
Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991), which held that unions could not force employees to pay for most union lobbying expenses.
As the Washington Post reported, "The court ruled 8 to 1 that the use of the money for political lobbying and public relations, except those needed to ratify a contract and obtain the funds to pay for it, violated the free speech rights of the employees who were forced to pay the union for it."
Knox v. SEIU (2012)
In Knox, a Foundation case challenging a union’s seizure of compulsory fees from employees for a ballot initiative campaign, the Supreme Court called Abood an “anomaly,” criticized Abood’s so-called “free-rider" rationale, and made clear that compulsory fee requirements are subject to at least “exacting First Amendment scrutiny."
Harris v. Quinn (2014)
In Harris, a Foundation case alleging it unconstitutional for unions to seize compulsory fees from Medicaid providers, the Court went even further, and gave several reasons why Abood was wrongly decided, stating that:
- Abood “fundamentally misunderstood” earlier cases concerning laws authorizing private sector compulsory fees;
- Abood failed to appreciate the difference between private and public sector bargaining;
- Abood failed to appreciate the difficulty in distinguishing between collective bargaining and politics in the public sector;
- Abood did not foresee the difficulty in classifying union expenditures as “chargeable” or “nonchargeable”;
- Abood “did not foresee the practical problems that would face objecting nonmembers”; and
- Abood wrongly assumed forced fees are necessary for exclusive representation.
The Harris Court stopped short of overruling Abood, however, because doing so was unnecessary to resolve the question of whether individuals who were not public employees could be forced to pay compulsory union fees.
One last note about the history of the Janus v. AFSCME case ...
Rauner v. AFSCME
Janus v. AFSCME was not always called Janus v. AFSCME.
Illinois Governor Bruce Rauner, an advocate for individual rights in the workplace, sought to free Illinois government employees from forced unionism. In 2015, based on the Foundation’s victory in Harris, which held it unconstitutional for Illinois to force independent homecare providers to pay compulsory union fees, the newly-elected Governor filed a lawsuit that sought to overrule Abood and have Illinois’s public-sector agency fee law declared unconstitutional. Soon thereafter, Mark Janus and two other Illinois state employees represented by National Right to Work Foundation attorneys and other counsel moved to become parties to Governor Rauner’s case.
The district court granted the employees’ motion to become intervenors in the case and, at the same, dismissed Governor Rauner from the case on technical procedural grounds. This left the employees as the only plaintiffs in the case. And, the case of Rauner v. AFSCME 31 became Janus v. AFSCME 31.
Pictured at the right is Governor Bruce Rauner following U.S. Supreme Court oral arguments in the Janus v. AFSCME case.