Free speech was the issue technically at hand in Janus v. the American Federation of State, County and Municipal Employees (AFSCME), but only in the most farcical and abstract way. Until now, unions have been able to collect agency fees (also called “fair-share” fees) from employees in sectors covered by unions’ bargaining contracts, whether or not those employees were union members. Those fees were not used for unions’ political activities but rather for the administration of the unions and their bargaining work.
In this case, Illinois state government employee Mark Janus sued AFSCME over the agency fees, claiming that his free speech was violated by paying them, on the argument that public-sector unions’ activities are inherently political because they directly involve the government, and money is speech.
Much can be said of the logic in the case. One might point out that, if money is speech and funding of government activities — broadly construed — by mandatory fees therefore signals a violation of free speech, there never has been free speech in the United States, thanks to taxes. But of course, money isn’t speech, and narrow transactions aren’t blanket endorsements, as anyone who has ever swapped cash for goods and services intuitively understands. Perhaps this is only evidence that, if you believe several small stupid things, you will eventually end up believing at least one incredibly large stupid thing.
Large organizations oriented toward any common good take this fact for granted: They require stable funding to operate toward their ends, and so long as they aren’t prohibiting constituents from personal expression or pursuit of private goods, contribution of one’s fair share is a reasonable expectation. Democracies in particular rely on this kind of reasoning. Labor unions, formed and run on stringently democratic principles to advocate broadly for the welfare of their members, certainly do as well.
But all of that’s principled, and principles are no defense against capitalists. Who funded Janus? Richard Uihlein, for one, a millionaire industrialist and Republican mega-donor
with a history of getting what he wants out of government; the Koch brothers, of course; and a slew of other foundations funded by rich people who have enough money to purchase the laws that benefit them. The fact is that unions get in the way of maximal profits, because they protect workers’ interests by helping workers band together and bargain as a whole, instead of leaving them to fend for themselves alone, and that’s a problem for capital. But it’s one they’re solving, little by little.
The solvent is powerful, which is probably what the U.S. Conference of Catholic Bishops had in mind when it submitted its amicus brief in favor of AFSCME. The payment of agency fees, the brief observed, can be construed as a limitation on freedom only if one’s definition of freedom is so “absolute and extreme” as to exclude the common good, which is precisely the kind of desolate freedom capital has in mind — after all, alienation, too, is a kind of freedom, maybe the ideal kind, under capitalism.
The brief also included the following speculation: “If the opinion in this case suggests that a private employer’s compulsion of its employees to pay agency fees is somehow attributable to the government, then it is only a small step to striking that requirement down under the Free Speech Clause as well.”
The court’s opinion in Janus didn’t explicitly endorse that reasoning, but it’s not such a ridiculous claim, not if you already believe so many other ridiculous things, and not if you have the money to buy reason and replace it with lesser things. The government enforces all contracts through court actions, so the state stands behind every agreement that, per Janus, compels speech by requiring any mandatory payment of fees over time.
Janus may not put us there immediately, but it’s coming, and it has always been coming, a maw stretching over the horizon. However many more lawsuits it will take to isolate you altogether, capital will fund. The money is never-ending, and the suits make them more than they lose. Then they will have you where they want you: free at last, in the way of anchors cut loose, and left to the sea.