SAN DIEGO, CALIF. – The United States Supreme Court’s ruling in Janus v. AFSCME may serve as a landmark decision. While traditional media outlets and the Democratic establishment are already discrediting the decision, the gnashing of teeth may be relatively short-sighted. The very basis of this decision could be used as precedent to attack the Court’s decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
Both cases were predicated on First Amendment protections. The Janus decision got it right while Citizens United got it wrong.
Citizens United held that the “freedom of the press” protects “associations” of individuals in addition to individuals. Had it stopped there, the decision may have been correct as the facts of the case concerned the airing of a film that was critical of Hillary Clinton (just as had been done with the airing of a film about George W. Bush).
However, the majority transitioned from “freedom of the press” to a more expansive application of “freedom of speech” by arguing that the First Amendment precludes government from "rationing" speech in any manner. In the process, it overturned Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) and opened the flood gates for disproportionate PAC spending to influence elections.
As an aside for those who are concerned with Russian “interference” in our elections, let me assure you that corporate and union interference poses a far greater threat. The reality is that countries (including the United States) have historically tried to influence the elections of other countries. They simply haven’t been as effective at “buying” results as have our corporations and unions.
The real impact of Citizens United is that it essentially confers individual status on corporations and unions. Conversely, Janus argues against this.
In Janus, the Court held that, “The First Amendment, made applicable to the States by the Fourteenth Amendment, forbids abridgment of the freedom of speech… (and) freedom of speech ‘includes both the right to speak freely and the right to refrain from speaking at all.’”
It also emphasized that, “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” [Emphasis added.]
The Court’s decision in Janus is predicated on preserving individual rights and precluding unions from usurping them without specific consent. In effect, SCOTUS recognizes that a union does not possess the right to exercise the individual rights of its members unless those members have waived their rights.
Why not apply the same rationale to challenge Citizens United?
In full disclosure, I made the following argument during my 2012 presidential campaign:
“Corporations and unions are entities that were only created for legal convenience. Corporations were created to allow businesses to continue in perpetuity (i.e., allowing them not to be tied to the life of a sole proprietor or the lives of partners). Unions were created to facilitate an organized way of bargaining in a collective manner with respect to wages, benefits, and work conditions. Neither is a living, breathing human being. They are merely legal entities comprised of individuals.
“In that light, neither bears individual rights under the Constitution (other than in extremely limited circumstances) particularly when it comes the exertion of political influence… and neither can assert a valid need to intervene in our election process.
“It is disingenuous to suggest that a corporation or union can accurately represent the political opinions of all of its employees or members. It is also completely unnecessary.
“Employees and union members have the right to decide which candidates and issues they chose to support on an independent basis. They do not need a legal entity to pretend it represents their individual interests since they can demonstrate those interests directly by casting their own votes and deciding to which campaigns, if any, they choose to contribute.
“A rational solution to the undue influence exerted by corporate and unions PACs on our political process is to simply restrict political contributions to those who enjoy the right to vote (i.e., individuals). The second step is to restrict individual political contributions to a level that is equitable among voters and precludes any significant influence.”
Janus v. AFSCME sets the stage for this argument on a grand scale. We simply must stop pretending that corporations and unions are people and prevent them from usurping the individual rights of their employees and members without an express waiver by each individual.
Of course, we can expect biased arguments to be made by the parties and their supporters based upon whose balance sheet is impacted and whose power is threatened.
For example, the Economic Policy Institute, a pro-labor think tank, immediately proclaimed, "It is likely that today's decision will lead to greater instability in state and local workforces." The EPI used "recent teachers' strikes in states like West Virginia and Oklahoma” as “examples of the effect of denying workers the right to effective collective bargaining." That would be a more effective argument had SCOTUS not reaffirmed the right to collectively bargain in Janus.
Then there is the “stolen seat” argument that will be lodged against any 5-4 decision of the current Supreme Court. The basis relies on the premise that had Merrick Garland been confirmed to the Court, the decision would have ended 5-4 in favor of AFSCME. As attorneys are fond of saying, that argument is predicated upon “facts not in evidence.”
Assuming the decision actually would have reached the opposite decision had Garland been seated, the Republicans would be making the same “stolen seat” argument citing the Democrats opposition to “lame duck” appointments when the shoe was on the other foot.
It also suggests that the United States Supreme Court has become compromised over time by political bias. We should not be able to routinely predict how SCOTUS will decide a case unless the constitutional issues are blindingly clear nor is this necessarily the case. If we need a reminder, we need only look to Justices Breyer and Kagan recently siding with the majority in the politically controversial Masterpiece Cakeshop, Ltd., et al. V. Colorado Civil Rights Commission et al. Even our Supreme Court justices can put aside bias on occasion.
Rather than striking a position based upon the impact a decision might have on the power and coffers of a particular party, we should learn to focus on the facts of the case and leverage them to eliminate the undue influence that money has on our elections. If we do, we might even return power to the people.