Academic journal article Boston University Law Review

The Representative First Amendment: Public-Sector Exclusive Representation after Janus V. Afscme

Academic journal article Boston University Law Review

The Representative First Amendment: Public-Sector Exclusive Representation after Janus V. Afscme

Article excerpt


Before it was a case, Janus was a god. The two-faced god of time in ancient Rome, Janus captured the paradoxical nature of change-that all endings are also beginnings.1 Fitting, then, that when the U.S. Supreme Court decided to strike down public-sector union agency fees, it did so in a case brought by a plaintiff named Mark Janus.2

Janus v. American Federation of State, County, and Municipal Employees, Council 313 marked a bold reversal of decades' worth of labor law and practice for public-sector unions.4 At stake was the collection of agency fees-the funds that unions gather from employees they represent in order to finance activities like collective bargaining and arbitration hearings-from nonunion employees.5 Previously, the Court's 1977 decision in Abood v. Detroit Board of Education6 governed the collection of public-sector agency fees, allowing their collection from nonmembers so long as no amount funded the union's political activities.7 Janus overturned Abood,8 simultaneously ending the settled practice of how public-sector unions funded their nonpolitical activities and sending the public-sector labor movement back to a state reminiscent of its early days-a time rife with legal battles over financing.9 As Justice Kagan lamented in dissent: "There is no sugarcoating today's opinion. The majority overthrows a decision entrenched in this Nation's law-and in its economic life-for over 40 years."10

Among the doctrines Janus threatens to upend is exclusive representation for public-sector unions. Exclusive representation provides that a union chosen by a majority of workers will be the sole representative of all employees in the bargaining unit at collective bargaining talks with employers, allowing the union to speak as one on issues like wages, benefits, and hours.11 Commonplace in state and federal statutes regulating unions, the doctrine of exclusive representation is the backbone of U.S. labor law, supporting the structure of labor organizing that has existed within the country since the New Deal.12 Janus raised a question that strikes at the heart of this arrangement: Is the requirement of exclusive representation akin to agency fees? In other words, is exclusive representation an unconstitutional infringement on public-sector workers' First Amendment associational and expressive rights?

Plaintiffs in lower court cases, both before and after Janus, have sought an answer in the affirmative.13 Indeed, the Supreme Court practically invited such challenges, observing in Janus that exclusive representation was "a significant impingement on associational freedoms that would not be tolerated in other contexts."14 Little wonder that in Justice Kagan's view, Janus represented a backward-looking opinion that foretold nothing but chaos to come.15

Many commentators have agreed with Justice Kagan's general evaluation, criticizing Janus on manifold grounds.16 Although varied, these assessments fit into a broader trend of legal scholarship and commentary-one that traces the First Amendment's increasing "Lochnerization."17 Commentators have bemoaned more generally what Professor Charlotte Garden called the "deregulatory First Amendment"-a new tool for the Supreme Court's conservative majority to use to chip away at economic and social regulations much like how substantive due process was used during the Lochner era.18 Or, in Justice Kagan's words, observers have feared that the First Amendment is increasingly undergoing a "weaponization."19 In short, Janus has but one face for these commentators-and a grim, regressive one at that.

While these characterizations capture important-and unsettling-features of recent First Amendment jurisprudence, this focus on "Lochnerization" ultimately blinds these commentators to potential avenues to stem this regressive trend. Framed by a tragic historical narrative wherein the hard won expressive and associational rights of the 1950s and 1960s proved a double-edged sword that conservatives have since used to slash economic regulations-first with the rise of the commercial speech doctrine in the 1970s and 1980s, then with the recent spate of anti-union rulings-critics' characterizations overlook ways in which First Amendment jurisprudence might act as a shield for labor law. …

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