Free speech beats ‘free rider’

In a month that has seen several controversial Supreme Court decisions, the Justices may have saved the biggest one for last.

On Wednesday, the Court handed down its decision in Janus v. AFSCME, which challenged the constitutionality of requiring government employees to pay dues to a public employees union.

Mark Janus, the plaintiff in the case, argued that the agency fees he paid to the union — and which could be used to advocate for positions he opposed — amounted to compelled political speech.

By a vote of 5-4, the Court ruled that, “States and public-sector unions may no longer extract agency fees from nonconsenting employees. This procedure violates the First Amendment and cannot continue.”

In other words, government employees across the country may opt out of joining their state’s public employee unions and no longer will have to pay dues or fees.

The decision was lauded by those who saw the previous policy as a violation of workers’ rights and by union members who were frustrated at having to pay organizations they felt didn’t represent their beliefs. Writing in USA Today, Minnesota teacher Aaron Anthony Benner said:

“In addition to being fair to workers who deserve the freedom to choose whether or not to pay a union, I believe this ruling will lead to unions that are more responsive and attentive to their members.”

However, others condemned the Janus decision. Randy Perreira, executive director of the Hawaii Government Employees Union, told the Honolulu Star Advertiser:

“It creates what in the jargon is called ‘free riders,’ where people would be able to say, ‘I no longer want to pay for the service, but I expect to get it.’”

Perreira added, “This ruling is what it is, but it’s not going to stop us. We’re going to continue to be advocates for the people we represent, and hope and trust that people see the value in the union and continue to be members.”

Besides the public unions, state governments are grappling with the implications of the case as well. Future legislation and litigation will help determine what steps, if any, a government employee will need to take to opt-in or opt-out of their union membership, dues or fees. The answer may be different for new employees versus those who were union members up until the Janus ruling.

In Hawaii, the Legislature anticipated the Janus decision and approved legislation, HB 1725, signed in April by Gov. David Ige, that will provides government employees a 30-day period once a year in which they can opt out of paying union dues.

With the Janus decision only a few days old, it remains to be seen whether it will be followed by mass departures of union members. Some are bracing for a hit to both union membership and union coffers. However, a few unions from right-to-work states say it is possible to keep workers, and even attract more, when membership is voluntary.

In addition, states may look for new ways to support public employee unions. Some have suggested that states fund the unions directly. Others have proposed that legislators create “members only” unions, i.e. unions that only represent and negotiate for only their members. Non-members would not gain the same benefits as those under a union contract.

If Hawaii lawmakers choose to address the Janus decision, they will have to do so with the knowledge that the Court found the free-rider argument insufficient to overcome the First Amendment concerns. They will have to approach the issue in a way that balances Hawaii’s longstanding union tradition with the civil liberty considerations brought forth in the ruling.

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