On Monday the Supreme Court will hear oral arguments in Janus v. AFSCME, Council 31 - a case experts have long predicted could strike a mortal blow to public sector unions. The plaintiff, an Illinois state worker named Mark Janus, has argued that he has a First Amendment right to avoid paying anything to a union that bargains on his behalf. With the current ideological leanings of the court, the plaintiff -- and the conservative groups backing his lawsuit -- face strong odds of victory.
But while most of the media has focused on the fact that the Janus case stands to decimate union coffers - and by extension, Democratic Party coffers - some labor activists and legal scholars have begun sounding the alarm on what they say would be the unintended consequences of the suit, effectively opening up the floodgates for countless lawsuits like the recent ones filed by the International Union of Operating Engineers. If Mark Janus doesn't have to pay his agency fees because collective bargaining is speech he disagrees with, then collective bargaining is speech. And it can't be restricted. Indeed, when some of the lazier advocates of Janus lay out the case, they accidentally argue on behalf of unions' right to free speech. "Because government is both employer and policymaker, collective bargaining by the union is inherently political advocacy and indistinguishable from lobbying," wrote George Will on Sunday, directly implicating the First Amendment.
If the Janus plaintiffs win their case, this critical distinction would be dismantled. (A decision is expected by June, when the court's term ends.) A union's bargaining and political lobbying would be treated the same -- as protected free speech. In other words, the court would actually be elevating the free speech standards of bargaining. That, in turn, could bring with it new legal protections.
"If the plaintiffs are right that collective bargaining is political speech indistinguishable from lobbying, well, the flip side of that coin is that that protected free speech can't be restricted," said Ed Maher, a spokesperson for the International Union of Operating Engineers. "We don't think this has been thoughtfully considered by the plaintiffs, and it is our belief that a win for Janus will open a tremendous Pandora's box."
It's not a great silver lining because in order to sue employers and governments on the grounds that collective bargaining is free speech, unions will need money to pay the legal fees, which they will have less of because of the predicted Janus ruling, but it's something. I also enjoy any time a law pushed by conservatives can be turned around against them, like the Satanists trying to get their Satan statue up in city capitols.