On September 28, 2017, the U.S. Supreme Court granted certiorari in Janus v. American Federation of State, County, & Municipal Employees, Council 31, No. 16-1466, 2017 WL 2483128 (U.S. Sept. 28, 2017) (Mem). The question presented in Janus is whether the First Amendment allows a government to force its employees to pay “agency fees” to a labor organization that is their “exclusive representative” for purposes of “collective bargaining” with the government. The same issue was presented last Term in Friedrichs v. California Teachers Ass’n, and many legal observers of the oral argument in that case speculated that the Court would hold that such requirements unconstitutionally compel association and speech. However, the Court deadlocked 4 to 4 in Friedrichs due to the untimely death after oral argument of Justice Antonin Scalia. 136 S. Ct. 1083 (2016).

In an October 5 posting on the blog “On Labor,” Harvard Professor of Labor Law Benjamin Sachs argues ingeniously, but erroneously, that “there is no first amendment problem with agency fees” because, “under the Court’s First Amendment cases, agency fees are – and must be treated as – payments made directly by employers to unions.” https://onlabor.org/janus-agency-fees-and-the-first-amendment/. The primary error in this argument is that not only has “each Supreme Court holding” concerning compulsory union fees been “predicated on the idea that employees are compelled to pay their money to the union,” as Professor Sachs concedes, but the Court has held that for purposes of the First Amendment the money involved belongs to the employees not the union.

In Davenport v. Washington Education Ass’n, the defendant union argued unsuccessfully that the First Amendment was violated by a state statute prohibiting public-sector unions from using nonmembers’ agency fees for politics unless the unions obtained nonmembers’ affirmative authorization. That argument “beg[an] with the premise that [the statute] is a limitation on how the union may spend ‘its’ money.” The Court rejected that premise:

For purposes of the First Amendment, it is entirely immaterial that [the statute] restricts a union’s use of funds only after those funds are already within the union’s lawful possession under Washington law. What matters is that public-sector agency fees are in the union’s possession only because Washington and its union-contracting government agencies have compelled their employees to pay those fees. . . . As applied to public-sector unions, [the statute] is not fairly described as a restriction on how the union can spend “its” money; it is a condition placed upon the union’s extraordinarystateentitlement to acquire and spendother people’smoney.

551 U.S. 177, 187 (2007) (6-0 decision). 

Professor Sachs relies in part on an argument that the Establishment Clause school funding cases purportedly establish a rule that government payments to individuals that are then paid to a third party “are to be treated as coming from the private individuals only if those individuals have a ‘genuine choice’ about what to do with the money,” citing Zelman v. Simmons-Harris, 536 U.S. 639 (2002). However, those cases are clearly inapposite, because the payments in the school funding cases are not made as consideration for services rendered by parents to the government, but are gifts from the government given to provide children with educational choice. Forced union fees, in contrast, are taken from the wages paid to workers in consideration for the services those workers provide to their governmental employer. See, e.g., 5 Ill. Comp. Stat. 315/6(e) (“the proportionate share payment . . . shall be deducted by the employer from the earnings of the nonmember employees and paid to the employee organization.”)


  • 1 - Justice Breyer, joined by the Chief Justice and Justice Alito did not join this part of the Court’s opinion because the union’s argument rejected in this part was “raised for the first time in its briefs before this Court.” 551 U.S. at192 (Breyer, J., concurring in part and concurring in the judgment). All nine Justices joined in the part of the Court’s opinion that held “that unions have no constitutional entitlement to the fees of nonmember employees.” Id. at 185.