OPINION: How Courts Could Free Even More People From Unions In The Year Ahead

Jacob Huebert | Goldwater Institute

Here’s a good New Year’s resolution for the courts this year: Bring more freedom to more Americans.

Last year, the U.S. Supreme Court delivered a huge victory for free-speech rights when it ruled that governments can’t force their employees to give money to a union in the landmark Janus v. AFSCME case. Because of that decision, some five million government workers in 22 states, who had been forced to give part of every paycheck to a union just to keep their jobs, are now free to choose what political advocacy groups they will and won’t support with their money. The decision also means that government unions can’t count on forced fees to fund their political agenda as they did in the past.

But Janus should be just the beginning of a series of court decisions providing stronger protection for First Amendment rights — and ending special privileges for politically favored groups. This year, the courts can and should do even more to protect Americans from being forced to pay for other people’s politics.

One way governments are still forcing people to pay for political advocacy — in 32 states — is by forcing lawyers to join and pay dues to a bar association to be allowed to practice law. Those bar associations don’t just use that money to make sure lawyers behave ethically. All too often, they use those dues to advocate for certain political positions.

In North Dakota, the state bar association used mandatory dues to advocate against a ballot measure on a child-custody issue. That didn’t please attorney Arnold Fleck, who gave his time and money to support the measure — only to learn that the bar association was using his own money against him.

Fleck has filed a lawsuit to challenge North Dakota’s mandatory bar for violating his First Amendment right to choose what political speech he’ll fund with his money and what groups he’ll belong to. A federal appeals court ruled against him in 2017, but last month the Supreme Court directed the lower court to reconsider its decision in light of Janus. That suggests the court might be ready to give attorneys the same protection for their rights that it gave to government workers in Janus.

Fleck isn’t the only attorney standing up for his rights. In Oregon, the state bar used mandatory dues to publish a statement attacking President Trump for supposedly drawing the “base” of his support from a “dangerous movement of racism.” Attorneys Daniel Crowe and Lawrence Peterson didn’t want their dues money to fund that political message — or any political message — and now they’re challenging that state’s mandatory membership and fees.

Meanwhile, others are building on Janus to expand freedom on other fronts. Across the country, workers have filed numerous lawsuits challenging government unions’ power of “exclusive representation” — that is, their authority to bargain on behalf of all workers in a group, regardless of whether they’re union members or want the union to speak for them. These workers argue that appointing an official representative to speak for them violates their right to freedom of association. And in New Jersey, a lawsuit filed this month argues that Janus should protect airline employees who are currently forced to pay union fees under federal law.

After all, the First Amendment isn’t just for the government employees whose rights were upheld in Janus — it’s for everyone. The courts should take the opportunities in front of them to make clear that the government cannot require anyone to join or pay a private advocacy group just to be allowed do a job.

Jacob Huebert is a senior attorney at the Goldwater Institute. He was part of the team that successfully litigated Janus v. AFSCME, and he currently represents attorneys Arnold Fleck, Daniel Crowe, and Lawrence Peterson.


The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.

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