Janus v. AFSCME is a Supreme Court case decided in 2018 that addressed whether public sector workers could be compelled to pay agency fees to unions. The case and its aftermath were discussed across multiple episodes of The Bob Zadek Show, with guests ranging from a state-policy reformer to a progressive labor advocate to a First Amendment litigator.
The Decision and Its Grounds
Bob Zadek introduced the case by explaining that the Supreme Court was asked to decide whether a government worker could be compelled to pay agency fees or fair share fees — a portion of what otherwise would be union dues — to support the union’s contract negotiations and enforcement efforts The Two Faces of Janus v. AFSCME (2018). The arguments in favor of compulsory payment rested on the “free rider” problem: if a union negotiated a higher salary, the benefit would flow to non-payers as well as payers, so the policy was that workers should not get the benefit of union negotiation without paying The Two Faces of Janus v. AFSCME (2018). Workers argued in response that they were being forced to pay for the unions to promote political points of view they did not agree with; unions responded that agency feepayers were only paying a portion of dues allocated to contract negotiations, not for compelled speech The Two Faces of Janus v. AFSCME (2018).
The Supreme Court decided 5-4, with Justice Alito writing for the majority; the more conservative justices supported Alito’s position and the more progressive justices dissented The Two Faces of Janus v. AFSCME (2018). Bob described the decision as having caused “quite a furor in the media” The Two Faces of Janus v. AFSCME (2018).
Zadek later summarized the holding: the Court held that with respect to public service unions, the government was prohibited under Janus from compelling union members to pay dues to the extent that those dues support political speech they oppose What the IRS’s Hiring Spree Means for You (2023). He noted the decision does not apply to the private sector, “at least not yet,” but applies to public service worker unions What the IRS’s Hiring Spree Means for You (2023).
Compelled Speech and the Allocation Problem
A central issue in the case was whether agency fees amounted to compelled political speech. Jonathan Tasini, a progressive podcaster and supporter of workers’ rights, explained that unions were required to divide costs and ensure that money paid in agency fees did not go to political operations The Two Faces of Janus v. AFSCME (2018).
Bob Zadek noted that Justice Alito addressed the free rider issue in the decision, stating that the free rider issue can be dealt with in other ways, and that under established constitutional law principles, when free speech rights are implicated, the government has a huge burden to show that the infringement cannot be accomplished by other means The Two Faces of Janus v. AFSCME (2018). Bob also acknowledged that while unions are required to allocate expenses between political activities and contract negotiation, those calculations were viewed with skepticism because of the judgment involved in making them The Two Faces of Janus v. AFSCME (2018).
Tasini countered that Justice Alito is “probably one of the smartest justices on the conservative wing,” describing him as “the most committed ideologue in that wing” and stating that Alito had “come up with a concoction in order to justify the overturning of a 40-year precedent” The Two Faces of Janus v. AFSCME (2018). Tasini acknowledged uncertainty about whether every division of costs was perfect but said there was no question that unions spend an enormous amount of time on that division The Two Faces of Janus v. AFSCME (2018).
Tasini also raised a broader question: whether it is a decent notion that someone getting the benefits of collective bargaining should not be required to pay a fee. He compared it to joining a gym — a private arrangement — and said there seems to be a basic principle in America that “you can’t get something for free” The Two Faces of Janus v. AFSCME (2018). He described the precedent that was overturned as “a unanimous decision 40 years ago by the Supreme Court” The Two Faces of Janus v. AFSCME (2018).
Union Democracy and Recertification
In an earlier episode, Robert Alt, CEO of the Buckeye Institute, discussed a campaign to bring union democracy to public service unions through regular recertification elections Robert Alt of the Buckeye Institute: Power to the States (2017). Alt described this as a campaign “just launched in Ohio” with a business model of taking ideas to states across the country, supported by the website workervotingrights.org Robert Alt of the Buckeye Institute: Power to the States (2017).
Alt noted that the idea had already taken hold in several states: Tennessee requires teachers’ unions to stand for reelection every three years; Wisconsin passed a provision requiring public sector unions to stand for regular reelection; and Iowa recently passed a similar provision Robert Alt of the Buckeye Institute: Power to the States (2017). Results varied — in some states workers voted out their unions, while in recent Iowa elections the unions did very well in being reelected as bargaining representatives Robert Alt of the Buckeye Institute: Power to the States (2017).
Alt emphasized that the key is “empowering the workers, giving them a voice and a choice” regarding free association and whether they wish to continue working and being associated with the union and paying dues Robert Alt of the Buckeye Institute: Power to the States (2017). He expressed hope for passing major reform in Ohio, and said the effort would be important regardless of how the Janus case came out: even if right-to-work became the law of the land, workers should not be stuck with a particular union and should have the opportunity to vote for which union represents them Robert Alt of the Buckeye Institute: Power to the States (2017). Alt connected this to “associational rights” and what he called “basic fundamental fairness” Robert Alt of the Buckeye Institute: Power to the States (2017).
Bob Zadek closed that episode by telling public service union members that the Buckeye Institute and libertarians “have your back” and urging listeners to follow the development in Ohio Robert Alt of the Buckeye Institute: Power to the States (2017).
California’s Section 3550 and the Gag Order
In a 2020 episode, Bob Zadek discussed California’s Section 3550, a statute that prohibits public officials from making statements that might “deter or discourage” union membership California’s New Union Gag Order Violates 1st Amendment (2020). Bob framed the show around the theme “Let this man speak,” drawn from the film 12 Angry Men, and said the show was about government preventing speakers from the right to speak about important issues and listeners from the right to hear California’s New Union Gag Order Violates 1st Amendment (2020).
Bob explained that the legislation was enacted in 2017 while the Janus case was working its way through the courts California’s New Union Gag Order Violates 1st Amendment (2020). He welcomed guests Terry Pell of the Center for Individual Rights and Jeffrey Barke, a school board member, to tell the story of what is going on in the American labor movement — “an existing and, dare I say, growing body of law that prevents public officials, employees of the government, to speak about issues that they think the voters must know about” California’s New Union Gag Order Violates 1st Amendment (2020).
Bob also mentioned that the show had previously discussed the Janus case with Rebecca Friedrichs as a guest, and invited listeners to listen to that show California’s New Union Gag Order Violates 1st Amendment (2020). He introduced the topic of Labor Peace Agreements — “LPA” — calling the phrase a misnomer and describing it as “something even more sinister, or perhaps as sinister” California’s New Union Gag Order Violates 1st Amendment (2020).
The Aftermath and Political Spending
In a 2023 episode, Ashley Varner of the Freedom Foundation discussed the aftermath of Janus, explaining that the Supreme Court weighed in in 2018 and said union dues are political speech, and that public sector employees should not be compelled to fund union activity against their will What the IRS’s Hiring Spree Means for You (2023). Varner said the Freedom Foundation has taken it upon itself to reach out to every government employee in the country because many do not know this, as unions would not tell them What the IRS’s Hiring Spree Means for You (2023).
Varner said the organization hears from Democrats who are union members and may support organizations like Planned Parenthood or the ACLU, but ask why they do not get to choose how much of their money to give rather than having the union take it out of their paycheck before they see it What the IRS’s Hiring Spree Means for You (2023). She said the issue runs across the political gamut, with some people wanting to keep more of their dollars during times of inflation, some not political at all, and some on the left who would rather decide how much to write on a check What the IRS’s Hiring Spree Means for You (2023).
Bob Zadek drew a comparison to a statute requiring every American to give $200 to the Democratic Party or Republican Party, and said the legislation in effect does exactly that What the IRS’s Hiring Spree Means for You (2023). Varner agreed, saying union dues amount to political speech in one’s name with one’s paycheck What the IRS’s Hiring Spree Means for You (2023).
Bob also discussed the Friedrichs case, which preceded Janus. He described Rebecca Friedrichs as a teacher in Southern California who brought the first case on the same principle of compelled speech What the IRS’s Hiring Spree Means for You (2023). The Supreme Court heard argument and it was clear the Court would decide 5-4 against the union, but Scalia died in a hunting accident visiting in Texas, leaving the Court tied 4-4 on Friedrichs; the case was sent back down because the Supreme Court could not decide What the IRS’s Hiring Spree Means for You (2023). Bob described Janus as “kind of Friedrichs two” What the IRS’s Hiring Spree Means for You (2023).
Across episodes
The excerpts show a consistent focus on Janus across four episodes, but the treatment shifts. In the 2017 episode, Robert Alt discussed union democracy and recertification as a state-level reform agenda that would matter regardless of how Janus came out Robert Alt of the Buckeye Institute: Power to the States (2017). In the 2018 episode, Jonathan Tasini offered a critique of the decision and its reasoning, engaging directly with the free rider and compelled speech arguments The Two Faces of Janus v. AFSCME (2018). In the 2020 episode, Bob Zadek and guests discussed California’s Section 3550 as a response to Janus, framing it as a gag order on public officials California’s New Union Gag Order Violates 1st Amendment (2020). In the 2023 episode, Ashley Varner discussed the practical aftermath — how many public employees remain unaware of their rights under Janus and how union dues function as political speech What the IRS’s Hiring Spree Means for You (2023).
What the sources do not cover
The excerpts do not state the names of the parties in Janus v. AFSCME beyond the case caption, nor do they identify the specific constitutional amendment on which the decision turned. The excerpts do not provide the date of the decision beyond the year 2018, nor do they state the names of the justices who joined the majority or dissent beyond Justice Alito. The excerpts do not describe the specific facts of Mark Janus’s employment or the union involved. The excerpts do not state what Section 3550’s exact text provides beyond the prohibition on statements that might deter or discourage union membership.