Janus v. AFSCME: A Dangerous First Amendment Precedent

The United States Supreme Court’s recent ruling on Janus v. American Federation of State, County, and Municipal Employees (AFSCME) is the result of a decade-long effort by the far right to dismantle unions’ ability to advocate on behalf of American workers. Last week, Senate Democrats held a hearing to shed light on how secret political influence impacted the Janus case and continues to threaten democratic political processes.

The 5-4 Janus decision dealt a major blow to public sector labor unions. Right-wing groups, the Koch brothers’ Americans for Prosperity chief among them, supported lead plaintiff Mark Janus, a state employee who argued that an Illinois state law permitting public sector unions to collect payments from non-union members was unconstitutional.

Prior to the ruling, Illinois state law required public sector unions to negotiate on the behalf of both union and non-union employees for better wages, working conditions, employment benefits, and a range of other worker interests. This advocacy, which takes place through collective bargaining that is demanding of both time and financial resources, is made possible by fees paid by union members and by lower “agency” or “fair share” fees paid by non-union members. Conservative Justices sided with the Koch-backed plaintiff, arguing that fair-share laws (previously upheld in Abood v. Detroit Board of Education) infringe on employees’ First Amendment rights to free speech. This ruling will weaken unions’ power to improve the lives of working Americans.

However, Janus vs. AFSCME is not just about unions. This case cannot be viewed in isolation from two major issues: secret political influence and the future of government rule-making.

On secret influence in politics, Senator Sheldon Whitehouse (D-RI.) called the Janus case “faux litigation with faux parties backed by big Republican special interests.” Whitehouse explained how an alliance of conservative groups brought a case they knew they would lose in the lower courts. The case moved quickly to the Supreme Court, where the Koch Brothers and their partners correctly predicted that five conservative justices would deliver their anticipated pro-corporate outcome.

Testifying before Sen. Whitehouse and other Senate Democrats at Tuesday’s hearing, Nancy MacLean, Professor at Duke University and author of Democracy in Chains, described how the ruling represents another victory in the Koch brothers’ long-term project to counter the desires of the public majority with outsize political influence. The Koch brothers, MacLean said, understand they cannot persuade a voting majority that supports policies they oppose. Thus, they have used personal wealth—funneled to conservative organizations and political campaigns—to wield disproportionate sway over public policy.

The ruling also represents a victory for far-right groups seeking to change the rules that allow agencies to effectively govern. Central to the Koch’s belief system, MacLean explained, is the idea that “ironclad” restrictions must limit what the government can do. Declaring unions’ ability to charge fees to non-members for the benefits of representation in collective bargaining unconstitutional under the First Amendment establishes a dangerous precedent—a precedent that the Koch Brothers and other right-wing interests will likely use to argue that a wide range of regulations violates the principle of free speech.

The interpretation of the First Amendment adopted by the Supreme Court will erode the government’s ability to supervise economic markets, protect public health, preserve the environment, and carry out a range of other commonsense policies that protect—not threaten—basic freedoms. Writing for the minority opinion, Justice Elena Kagan warned that conservatives are “turning the First Amendment into a sword.” As she noted, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices.”

Many people are unaware of these efforts to “override citizens’ choices.” Last week, Prof. MacLean told Senators that the “goal of people who care about government of, by, and for the people should be to inform.” We need your help making sure all Americans are informed. Watch the full hearing here to learn more, and please share this blog to help spread the word about the dangers of a view of the First Amendment that prioritizes corporate interests.