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Public workers deserve full First Amendment protection from compelled union speech

A case pending before the Supreme Court of the United States (SCOTUS) has the potential to enhance the First Amendment rights of workers from being forced to subsidize union speech they may disagree with. The case is Alaska v. Alaska State Employees Association and several states have already filed amicus briefs in support of workers. Among those who joined an amicus brief are Idaho, Kansas, Alabama, and Texas, as well as others

Why is a case out of Alaska drawing so much attention from other states, and how could it impact you? The case stands for a cause the Mountain States Policy Center firmly believes in --- government transparency and freedom of choice as a public employee. It could have a nationwide impact for all public employees.

In 2018, SCOTUS held that public employees forced to subsidize a union, even if they “choose not to join and strongly object to the positions the union takes in collective bargaining and related activities” is unconstitutional. Such an “arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.” This decision from Janus could be strengthened by the Alaska State Employees case should SCOTUS accept and hear it.

Alaska State Employees seeks to resolve if affirmative consent must first be required before the Alaska state government can legally withhold from public employee paychecks for union causes within the scope of the First Amendment of the United States Constitution. There are currently two kinds of “fees” charged by public employee unions in Alaska: membership dues and agency fees, with agency fees being required for both union and non-union employees working in the public sector. SCOTUS addressed both of these types of fee categories in Janus, and determined it is unconstitutional to withhold union agency fees from public employees who do not agree with or have a desire to join a specific union.

The dispute at the center of the Alaska State Employees case is whether the ruling in Janus extends to membership dues as well. The Alaska Attorney General argues that it does; the Alaska State Employee Association argues that it does not.

The dispute arose as a result of Alaska Attorney General Treg Taylor implementing aggressive initiatives to inform employees of their workplace rights once he took office.  One of those initiatives includes requiring employee consent to union dues being withdrawn from their paychecks. Under Taylor’s guidelines, employees would have to provide “clear and compelling evidence” of consenting to union dues before they could be withheld from compensation. Paychecks could no longer support any union purposes without the employee intending their money to do so.

The state of Alaska initiative intends all Alaskan workers to be informed of each withholding line on their paychecks. Several states (including Idaho) have filed amicus briefs in Alaska State Employees in support of AG Taylor’s initiative regarding union dues. In other words, these states are also asking SCOTUS to recognize public employees’ right to consent to charges for governmental union dues.

SCOTUS’s ruling in Janus logically leads to a conclusion that public workers’ income cannot subsidize a private matter on issues of substantial public concern without voluntarily waiving their First Amendment right. To voluntarily waive a fundamental right demands individual rights have been thoroughly communicated and understood. The First Amendment protects both the freedom to speak as well as the freedom to refrain from speaking.

The state of Alaska urges the Supreme Court to reaffirm Janus which equally supports employees who wish to support union causes and those who “strongly object to the positions the union takes” as the court stated in 2018.

Mountain States Policy Center firmly agrees with those asking SCOTUS to fully clarify the First Amendment rights of workers to not be forced to provide financial support to union causes or membership without direct consent first. We’ll soon know if the U.S. Supreme Court agrees.

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