graphic image depicting green amicus briefs for Atlantic Legal Foundation Amicus Brief Summary

Should Stare Decisis Protect Compulsory Political Speech And Association?

Petitioner Mark Janus is an Illinois state employee who objects to paying union fees, which, by state law, are currently a condition of his employment. He is being forced to pay agency fees to the American Federation of State, County and Municipal Employees (“AFSCME”), Council 31. The Illinois Public Labor Relations Act (“IPLRA”), grants public sector unions the power to be “the exclusive representative for the employees of [a bargaining] unit for the purpose of collective bargaining with respect to rates of pay, wages, hours, and other conditions of employment.” Illinois compels state employees to pay “agency fees” to an exclusive representative for negotiating with the State over pay, benefits, hours, and other conditions of employment, which directly affect the public budget and are, therefore, matters of government policy. 

Illinois law gives the union authority to speak and contract for all employees in the bargaining unit, including those who do not join the union and oppose its advocacy activities. Janus claims that the compulsory fees force him to speak through his union in ways that violate his First Amendment rights and that this regime of compelled political speech is irreconcilable with this Court’s recent recognition of “the critical First Amendment rights at stake in such arrangements.” Knox v. Serv. Emp. Int’l Union, Local 1000, 567 U.S. 298, 311 (2012).


Issue Areas:

Individual Liberty, Limited Government

Read the Amicus Brief:
Question(s) Presented:

Should Abood v. Detroit Board of Education, 431 U.S. 209 (1977), be overruled and public sector agency fee arrangements declared unconstitutional under the First Amendment?

Additional Background:

The Illinois agency fee requirement follows the decision in Abood v. Detroit Bd. of Ed., concerning the compulsory fees that public employees can be required to pay. The logic and reasoning of this Court’s recent decisions have shattered the intellectual foundation of its approval of such compulsory fee-payment regime in Abood – a decision that was questionable, and questioned, from the beginning, as Justice Powell argued in his separate opinion, in which he described the majority opinion as “unsupported by either precedent or reason.” Abood at 245 (Powell, J., concurring in the judgment). See Davenport v. Wash. Educ. Ass’n, 551 U.S. 177, 187 (2007); Harris v. Quinn, 134 S. Ct. 2618 (2014); Knox, 567 U.S. at 311 (2012).

ALF’s Amicus Brief:

In an amicus brief the ALF argues that the collective bargaining of public employees is inherently political as it involves the allocation of government spending, and that the First Amendment precludes compulsory political associations and speech. Contrary to a major premise underlying Abood and its progeny, it is not possible to neatly separate “chargeable” collective bargaining and contract administration expenses from “non-chargeable” political advocacy by public employee unions. Neither “labor peace,” nor coercing “free riders” justifies this abridgment of the fundamental liberties of non-consenting public employees. The ALF asks the Court to grant certiorari and restore the Constitutionally protected rights of public employees.


On June 27, 2018, the Supreme Court issued a favorable opinion holding that the State’s extraction of agency fees from nonconsenting public-sector employees violates the First Amendment, overruling Abood. Janus v. Am. Fed’n. Of State, No. 16-1466, slip op. (U.S. June 27, 2017).

Date Originally Posted: December 6, 2017

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