Restoring the First Amendment: Why Janus Matters to Small Business

Date: November 17, 2017

The small business community was thrilled to see the Supreme Court grant certiorari in Janus v. American Federation of State, County and Municipal Employees. To be sure, the case promises to bring final resolution to the issue left unresolved in the Friedrichs v. California Teachers Association. The question is whether it is constitutional for a state to compel public employees to financially support a union for which they do not wish to affiliate. 

Forty years ago, the Supreme Court ruled in Abood v. Detroit Board of Education that the States could require public employees to provide financial support for unions. But that decision seems irreconcilably at odds with subsequent First Amendment decisions. We argue with Cato Institute that Abood was wrongly decided at the time. Moreover, our brief emphasizes that the Supreme Court should not be bound by the doctrine of stare decisis because no one has important reliance interests in maintaining the status quo. For that matter, we maintain that the doctrine of stare decisis carries less weight in cases concerning constitutional rights because (absent a constitutional amendment) only the Supreme Court can correct a wrongly decided constitutional decision.

But it is also important to keep in perspective the broader significance of this case. Though Janus concerns specifically the First Amendment rights of public employees, it raises fundamental questions. Here the Court asks when (if ever) it is permissible for government to condition the right to work on a requirement to waive First Amendment rights? But the answer may well shed light on the larger question—of great practical significance to small business—as to whether government may condition the right to engage in commercial activity on a requirement to waive constitutional rights?

And of course, the small business community has an even more direct interest in the resolution of this case. As explained in our prior post, overturning Abood would be a game-changer in states currently dominated by the public employee union lobby. As NFIB argued in its filing in Friedrich’s, everything public employee unions do is inherently political—which is all the more reason to allow non-consenting employees to opt-out of lending financial support.

Further, it is worth noting that public employee unions almost always push for greater spending and other policy proposals that are troublesome to the small business community. So we would argue that public employee unions should have to prove their worth just like any other organization with political goals. Just as it would be wrong for government to compel businesses to join trade associations, it is wrong for government to compel employees to affiliate with a union. If a union expects financial support, it must demonstrate its worth in the same way that any other organization must prove its worth to its paying members or donors.

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