The Office of Solicitor General is now siding with Mark Janus, the lead plaintiff in the Janus vs. AFSCME case.
Mark Janus is a child-support specialist at the Illinois Department of Healthcare and Family Services. Janus argues that “fair share fees” violate the First Amendment.
So-called “fair-share fees” collect union fees from unions’ nonmembers.
The Office of Solicitor General had not previously weighed in on Janus, but under President Barack Obama it sided with unions in a nearly identical case, Friedrichs v. California Teachers Association, and argued that public-employee fair share fees were legal. That case (also financed by the Bradley Foundation) ended in a 4-4 deadlock in 2016 after the death of Justice Antonin Scalia, who had been expected to vote against fair share fees. It’s thought likely that with Justice Neil Gorsuch on the bench, the high court will abolish fair share fees later this term when it rules in Janus.
For the Trump administration, the court brief is the latest in a series of moves to roll back union power, including Trump’s appointment of pro-management board members to the National Labor Relations Board. In June, the Office of Solicitor General switched sides in another case before the high court concerning the legality of mandatory arbitration fees in employment contracts, which unions typically oppose.
[…] In its Janus brief, the Office of Solicitor General embraced the plaintiff’s argument that fair share fees violated his right to free speech. “In the public sector,” the brief said, “speech in collective bargaining is necessarily speech about public issues,” and “virtually every matter at stake in a public-sector labor agreement affects the public.”
According to the The Washington Post, the Trump administration asked the Supreme Court on Wednesday to overrule “fair share fees” as unconstitutional:
It puts the administration squarely on the side of conservative legal activists, who have complained for years that the requirement violates the free-speech rights of those who don’t want to join the union or pay fees to it.
The Supreme Court precedent the administration wants to overturn says that unions may charge all employees for the cost of collective bargaining, but not for the union’s political activities. About 20 states allow that practice […]
“The government reconsidered the question” after the new grant, says the brief filed by Solicitor General Neal J. Francisco. “The government’s previous briefs gave insufficient weight to the First Amendment interest of public employees in declining to fund speech on contested matters of public policy” […]
The unions say losing those fees would be a heavy blow because there is no incentive for workers to pay for collective-bargaining representation they could receive free.
But conservative activists — and conservative justices in recent cases — have sharply questioned whether it is possible to separate public-employee negotiations from the kind of public-policy questions — teacher salaries and classroom sizes, for instance, and the tax dollars needed to pay for them — that are raised.
The union argument is that there would be less incentive for workers to join unions and pay dues if they knew that they could receive union benefits without joining the unions.
Yet with “fair share fees,” workers at union jobs have to pay fees to a union whether they want to join or not.
So the labor unions focus more on the argument that without these fees, their unions will lose finances than whether or not their charges on nonmembers are fair and constitutional.
Unions, apparently either operate unfairly, or they don’t work.