An average guy, provoked enough, can accomplish things that are above average.
Mark Janus is such a guy. Provoked by what he believed was a bald violation of his First Amendment rights, he took action to see them protected. And he prevailed. Big time, as an average guy might say.
His name, italicized, will live on now in legal textbooks and amicus curiae footnotes, will be cited at length in law-school seminars and oral arguments, will be uttered with contempt in union headquarters, with respect in conservative gatherings. And it will be classified under “landmark.” Maybe even give birth to a phrase, “Janus rights.”
Last June, in Mark Janus v. American Federation of State, County, and Municipal Employees, Council 31, commonly known as Janus v. AFSCME, the United States Supreme Court ruled 5–4 that public-sector unions may not automatically enroll workers as members and collect fees from them. Janus was a loss for labor. A big loss. And it was a major — even surprising, and far-reaching — victory for conservatives and First Amendment champions.
Mark Janus describes himself as “just an average guy, a middle-class person who goes to work every day.” And work is where this saga of jurisprudence, of constitutional rights, of modern-day politics and union power, all begins. A lifelong resident of Springfield, Ill., Janus, a down-to-earth civic-minded citizen (he is an Eagle Scout), graduated in 1975 from Illinois College, a business-administration major whose career path meandered. He worked for his dad’s beauty-supply company and then at the Illinois Department of Commerce and Community Affairs, where his duties centered on economic-development small-business loans.
Janus soon returned to the private sector, as an accountant for a printing company and then in his own spiral-binding business, which he eventually sold. Then followed an encore as a government employee.
And it was there, working as a child-support specialist for the Illinois Department of Healthcare and Family Services, that the worm turned. Central to all that happened in this saga is this fact: Employee Janus was not a member of the office’s overseeing union, Local 2600 of AFSCME.
So Janus was surprised “when I got my first paycheck,” he tells National Review. It was unlike his first job with Illinois — “This time I saw a deduction for union dues.” It happened automatically. “During the normal intake process when I started working, no one in HR said anything about unions, about having to pay fees or dues. And I never joined the union.” He inquired of his colleagues: What gives? “I was told ‘Everyone had to pay in some manner’ and ‘It’s just mandatory.’ At the time I thought — that’s just the way it is. I have no choice.”
The absence of choice was the rule. The reason: In its Abood v. Detroit Board of Education decision (1977), the Supreme Court ruled unanimously that teachers who objected to being forced by state law to pay fees to a union that engaged in political activities they opposed nonetheless had an obligation to pay, and as a condition of employment.
The Court’s decision affirmed the situation in which Mark Janus found himself years later: In many non-right-to-work states, a public-sector union may operate on behalf of all employees, whether union members or not, and, if it does, nonmembers pay “agency fees” through paycheck deductions. All that cash is then used to bankroll the union’s activities related to, as the Court wrote in Abood, “collective bargaining, contract administration, and grievance adjustment purposes.”
But: What about the free-speech complaints of the Abood plaintiffs? Through the agency fees, their money was underwriting advocacy for politics they disdained. The Court, ruling that there was a legitimate First Amendment point here, enacted what it thought was a reasonable compromise, stating that the Constitution relieved the plaintiffs from being assessed that slice of “charges, dues, or assessments” related to a union’s political activities.
As compromises go, Abood’s was destined for failure: Unstated, and never emerging over the decades, was any formula for truly quantifying the percentage of a union’s political activity and then reimbursing nonmembers for it. There were also unanswered, sticky questions. Who does the slicing? What size should the slice be? Who says what is or isn’t political activity? Abood offered no workable way to untangle the rat’s nest of money, union activities, and free speech.
Mark Janus was 24 years old when Abood was decided. More than 30 years after the decision was handed down, the way to offset compulsory union fees to account for objectionable political speech remained unsettled. Now in his second Illinois-government job, Janus found every pay period repeating an injustice: “As time went on, I saw more and more of this money going to AFSCME. For all intents and purposes, it was a political organization.” Janus could not shake his irritation as he connected the dots of complicity between his union-collected fees, the state political power structure, and the fiscal straits of Illinois.
What was an average guy to do? Simply stew?
Not this one. Says Janus, who had no partisan affiliation, “I didn’t see my union working totally for the good of Illinois government. For years it supported candidates who put Illinois into its current budget and pension crisis. Government unions have pushed for government spending that made the state’s fiscal situation worse. How is that good for the people of the state? Or, for that matter, for my fellow union members who face the threat of layoffs or their pension funds someday running dry?”
Unless he opted for unemployment, Janus was essentially a co-conspirator through his paycheck, dunned every month. “I felt I was totally powerless and in a way violated. Here was all this money coming out of my check month after month, and the union was not paying any attention to my beliefs.”
Nor was the union providing information: “I did talk to my union steward about this but always received such a nebulous response.” Janus said he pressed to learn how the union was spending the fees and dues: “There was no real breakdown. I asked around, ‘Where is this all going?’ And the answer was ‘Well, we really can’t tell you.’ There was a total lack of transparency.”
His mounting frustration, though, wasn’t centered on a pilfered paycheck. It focused on his First Amendment rights. “Our Bill of Rights is crystal clear on the topic,” he wrote in an op-ed for the Springfield State Journal-Register in September 2017. “The First Amendment guarantees freedom of speech and freedom of association. I should not be forced into association with a union that claims to represent my interests when it really doesn’t.”
The average guy had had enough. In 2015, Janus got in touch with the Illinois-based Liberty Justice Center, a respected public-interest litigation group that fights for free speech and other rights. He had decided to seek legal redress through the courts. “I found out about the people at Liberty Justice Center. I learned about how they had fought for this cause. So we started a dialogue, and over the process we determined that we would file a case, that we would sue AFSCME.”
So would the state’s new Republican governor. Bruce Rauner, who won election in 2014 in part by campaigning against union excesses, issued an executive order to halt the collection of “agency fees” from non–union members and then filed a federal lawsuit against AFSCME and other unions to have the Illinois law mandating “fair share contract provisions” tossed out for violating First Amendment rights. This was precisely Janus’s beef. Rauner’s suit was an ideal vehicle for him.
Together with two other state employees, Marie Quigley and Brian Trygg, Janus joined as a plaintiff to Rauner’s suit. A federal judge then ruled that the governor lacked standing, leaving the trio, which became an uno when Quigley opted out and Trygg was deemed to have a conflict.
Within months, Janus was the sole plaintiff in what had turned into a major federal case, albeit one with welcome competition in that category. In July 2015, the Supreme Court agreed to hear the case of Rebecca Friedrichs, an elementary-school teacher who sued the California Teachers Association on similar grounds. A victory in Friedrichs v. California Teachers Association would likely satisfy Janus’s objectives. Oral argument was heard in January 2016. Conservatives got hopeful. Unions got scared.
And then Justice Antonin Scalia died. So too did the Friedrichs suit, when a divided court, in a 4–4 tie, put an end to the teacher’s campaign.
That made Janus the leading federal case to redress the violation of government workers’ First Amendment rights. Would the Supreme Court hear it? In late 2017, cert was granted, and the next February the Court held oral argument. With Justice Neil Gorsuch having replaced Scalia, hopes reemerged that the Court might overturn not only the state statute but also the unworkable Abood precedent. That was precisely the request made by Janus’s counsel, led by William Messenger of the National Right to Work Legal Defense Foundation, when the Court agreed to hear the case in late 2017:
Abood is offensive to the First Amendment. It permits the government to compel employees to subsidize an advocacy group’s political activity: namely, speaking to the government to influence governmental policies. . . . Abood is inconsistent with this Court’s precedents that subject instances of compelled speech and association to heightened constitutional scrutiny; Abood’s framework is unworkable and does not protect employee rights; and no reliance interests justify retaining Abood. The Court should abandon Abood and instead follow its precedents that subject compelled speech and association to heightened First Amendment scrutiny.
That, and more, happened: The Alito-written Janus ruling the Court issued on June 27, 2018, was broader and deeper than many had anticipated.
Vincent Vernuccio, a senior fellow at Mackinac Center for Public Policy and a labor-policy expert, describes Janus as “a tremendous victory” and says that “the size of the victory was a big surprise to most followers of the Court.” Because of the Friedrichs vote in 2016, they felt reasonably sure that in Janus “the Court was going to uphold the First Amendment rights of public employees.” However, “Alito went further and said that all public employees must opt in to their union” if they want to belong to it, rather than being automatically enrolled and allowed to opt out.
This “affirmative consent” requirement “breaks new ground,” Vernuccio says. It’s unambiguous. Now a government employee must, essentially, tell an employer, “Yes, I want to pay dues or agency fees” before funds can be deducted from his pay. The days of automatic withholding ended along with Abood. The unions’ reliable money spigot was reliable no longer. The Janus decision could impoverish unions if “affirmative consent” in practice severely reduces the revenue they collect from dues. The political consequences are immense.
Unions are fighting the efforts by conservative groups to inform government employees — both union members and nonmembers — of their new Janus rights. Indeed, AFSCME and other government-employee unions, including the powerful Service Employees International Union (SEIU), were reacting even before Janus was handed down. For unions, the Friedrichs decision had been at best a temporary win: Donald Trump’s election, and Gorsuch’s nomination and confirmation, meant that a defeat of some kind, and likely sooner rather than later, was in the offing.
In Connecticut, where government unions are considered the most powerful special interest, the Yankee Institute for Public Policy is directly informing workers of their Janus rights. “We genuinely believe in workers’ rights — each individual worker should have the right to choose the arrangement that suits him or her best,” says Yankee president Carol Platt Liebau. “If it means being part of a government union, fine. But if the government unions aren’t serving their members well — and many are not — those workers should be aware of their rights. They should know that they don’t have to hand over a significant portion of their paychecks to an organization that may not be looking out for them and [in which], in most cases, they didn’t have any voice in choosing their representative.”
The pushback — in the offices of government workers and in the statehouse — has been fierce. Despite the Janus ruling, AFSCME Council 4 is denying government employees in Connecticut their opt-out, never mind seeking their affirmative consent. Among the unions’ denial tactics are setting limited windows during which opt-outs can be requested.
And then there is intimidation. “Employees have shared stories with us that illustrate why they are hesitant to ask their HR, payroll department, or union representative about their Janus rights,” Liebau adds. “After these employees raised a question or asked to resign from their union, they found themselves singled out on proclamations posted to bulletin boards in their workplace. Often union reps share the names of workers who have left the union.”
Elsewhere, there is evidence — numerical, not anecdotal — that conservative efforts to inform workers are having an impact.
Freedom Foundation, with offices in Washington State, California, and Oregon, has quarterbacked campaigns to apprise workers of their Janus rights. In February, Oregon officials reported that SEIU-represented employees declined from 21,666 to 16,108 from June through the end of December. Twenty-six percent of Oregon state workers represented by SEIU 503 no longer pay dues. A fluke? No. The Oregon School Employees Association, representing 22,000 non-teacher school workers, has seen a dramatic 31 percent drop in dues-paying members in the eight months since Janus was decided.
The union pushback is determined, widespread, and influential in many state legislatures, where, says Maxford Nelsen, Freedom Foundation’s director of labor policy, government unions have strong allies. “What we’re seeing on the West Coast is an effort in state legislatures to shield unions from the effects of Janus and the loss of membership. It’s really being taken to extremes. For example, there is legislation introduced in Oregon that would require direct taxpayer funding of unions. That shows the lengths and depths to which legislatures will go to prop up this special interest.”
Nelsen has been focused on a Washington State bill that would maximize union-dues collection and shield unions from liabilities, including criminal, in their attempts to counter Janus. “This bill would protect labor unions, making them completely exempt from liability related to union-dues collections. If this bill became law, unions could use any methods, even illegal, to collect dues and fees, but employees would be prevented from seeking redress before court or state agencies. A union or its representative could break state law — someone could engage in, say, a criminal act of forgery of an employee opt-in form.”
AFSCME has particular contempt for Freedom Foundation. In a nuance-free video, Don’t Fall for the Freedom Foundation’s Lies, AFSCME president Lee Saunders charges that “a whole network of shadowy groups funded by CEOs and billionaires is trying to scam us. . . . Don’t be fooled: The Freedom Foundation doesn’t fight for our freedom; it stands for the freedom of corporations to rig the economy in their own favor.” He gives AFSCME members their orders: “If they contact you, report it at once. . . . If you get one of their emails, delete it. If they call you, hang up. If they come to your door, slam it in their faces.”
Another AFSCME bogeyman is State Policy Network, the collective of right-of-center state think tanks dedicated to personal freedom. Even before the Court ruled, AFSCME launched a campaign to deride SPN’s efforts to promote Janus through the legal system. On its website, AFSCME described SPN as purveying “misinformation to workers” and pushing its “agenda through the courts. The latest example of that agenda is the Janus case.” The “billionaires and corporate CEOs” behind Janus “have been trying to smash” the freedom of workers “to join together in strong unions and build strength through numbers.”
So it goes. And so it will continue to go. “Janus, as significant and as important as it was,” says Nelsen, is just a first step. “If the only thing that ever happens on this front is the Janus decision, then there won’t be much change.” He predicts years of court and legislative actions to defend workers’ First Amendment rights. “We need to make sure that the principles acknowledged in the ruling are enacted. There’s a lot of follow-up work to do.”
As for the man whose name will live on in italics, Mark Janus, union members at his former job threw a party when he left. They didn’t invite him. Working now for Liberty Justice Center, Janus plans to be in on the follow-up, no matter the lumps. He’s taken plenty and expects plenty more: “There are a lot of people on the other side, on social media, looking at me like a pariah. Like I am backed by Big Money and Dark Money people.”
“Initially I was naïve about the reaction,” he admits. “But now, I am meeting union people who come up to me and who are telling me their stories, stories that are totally unbelievable about how they are treated. How their unions totally ignore them and are not responsive.” (And he will receive the Whittaker Chambers Award for political courage at the 2019 National Review Institute Ideas Summit in Washington, D.C.)
Which inspires him to carry on. “The bottom-line goal here is to free government workers from being forced to financially support government unions. . . . This case has not been about ending collective bargaining, or ending unions or the rights of unions. It’s been about giving workers a choice.”
If only the union had given this average guy that in the first place.
This article appears as “The Freedom of the Average Guy” in the March 25, 2019, print edition of National Review.