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On The Front Lines

Rutherford Institute Asks U.S. Supreme Court to Prohibit Unions From Requiring Public Employees to Support Political Activities With Which They Disagree

WASHINGTON, D.C. — Arguing that the First Amendment forbids the government from dictating what citizens should say, whom they should support or with whom they should associate, The Rutherford Institute has asked the U.S. Supreme Court to overturn existing law that allows unions to require public-sector employees to subsidize political activities undertaken by the union.

In an amicus curiae brief filed with the Court in Janus v. American Federation of State, County and Municipal Employees, Council 31, Rutherford Institute attorneys are challenging laws in Illinois and elsewhere that require public employees who do not wish to support a union’s activities to affirmatively file an “opt out,” thereby violating the employee’s right to keep his views private. Moreover, as the brief argues, such laws violate the First Amendment’s prohibition against the government compelling speech by forcing members to financially support political activities they do not agree with and requiring employees to affirmatively opt out in order to recover back payments to the union deducted from their paychecks without their consent.

Affiliate attorneys D. Alicia Hickok, Chanda A. Miller, and Mark D. Taticchi of Drinker Biddle & Reath LLP assisted The Rutherford Institute in advancing the arguments in the amicus brief before the U.S. Supreme Court.

“The right to hold a position that is neither yea nor nay carries with it a simultaneous right not to be perceived as taking sides. This right is both a speech right and a privacy right,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “The very purpose of the First Amendment, as Justice Hugo L. Black recognized, is to ensure that Americans are free to think, speak, write and worship as they please, not as the government (or employee unions) dictate. As Thomas Jefferson recognized, ‘to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.’”

In 1977, the U.S. Supreme Court ruled that a public employee can be required to pay dues to unions even if the employee does not wish to belong to the union and does not support the union’s political activities or positions. However, the Supreme Court also held that the First Amendment forbids the union from using those dues to support political causes to which the employee objects. Thus, unions are required to refund dues to an employee when requested if those dues are used for activities to which an employee objects. Under Illinois law, public employee unions charge the employees an “agency fee” as a condition of employment, whether or not the employee is a member of the union, in order to pay for the costs of the unions’ activities. Those employees wishing to exercise their First Amendment right not to subsidize a union’s activities must affirmatively opt out of supporting those activities in order to obtain a refund of their dues.

In 2015, Mark Janus, an employee with the Illinois Department of Healthcare and Family Services, filed a complaint in federal district court claiming that forcing him to pay the agency fee to the American Federation of State, County and Municipal Employees (AFSCME) union violated his constitutional rights by forcing him to support advocacy by the union with which he disagrees. In raising the objection, Janus cited Supreme Court decisions that undermine the Court’s 1977 ruling. After his claims were denied in the lower courts, the Supreme Court agreed to hear Janus’s case. In its amicus brief in support of Janus, The Rutherford Institute argues that employees should not be forced to relinquish their right to privacy in order to raise a First Amendment objection to funding union activities with which they disagree.