Just over one year ago, the U.S. Supreme Court held that public employees could not be forced to subsidize union speech with which they disagreed. Janus v. Afscme upheld the “bedrock principle” that “except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”
Janus was an enormous victory for the First Amendment. The case reaffirmed the right of We the People not only to speak our minds, but also to decide whether to engage in public debate. As Justice Alito wrote for the majority, “Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning.” This meant that public employees who choose not to be a part of a union may not be forced to pay union dues and subsidize speech on which they disagree. As the Court, quoting Thomas Jefferson, put it, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.”
Despite this clear win for the First Amendment, an article in the Wall Street Journal notes that millions of federal and state government employees are still having hundreds of millions of dollars deducted from their paychecks and sent to union coffers without evidence that those employees have waived their speech rights under Janus. That case requires clear and affirmative consent to union fee deductions; “To be effective, the waiver must be freely given and shown by ‘clear and compelling’ evidence.”
Alaska has taken the lead in showing a way forward. At the request of Governor Dunleavy, Attorney General Kevin Clarkson issued a formal opinion noting that Janus “requires a significant change to the State’s current practice in order to protect state employees’ First Amendment rights.” Because the State’s current system failed to meet constitutional waiver standards, the Attorney General recommended new procedures to ensure a knowing waiver.
Government employees can still, of course, pay union dues should they so choose. But the Constitution requires them to knowingly consent to the subsidization of union speech. Over a year out from the case, it’s time the federal and state governments change their payroll procedures to comply with Janus.