MIDLAND, Mich. — An amicus brief filed today at the United States Supreme Court argues that states must obtain direct consent from public employees before they can withhold union dues from employees’ paychecks. The Mackinac Center for Public Policy and Landmark Legal Foundation submitted the brief in support of the Alaska Attorney General’s request to have the court clarify the proper scope of its 2018 Janus v. AFSCME decision.

The U.S. Supreme Court’s decision in Janus v. AFSCME ruled that forcing workers to financially support government unions violated public employees’ First Amendment rights. The amicus brief notes that the decision also requires public employees to be informed of their rights and provide “clear and compelling evidence” that they consent to having dues removed from their paychecks.

The Alaska Attorney General sought to bring Alaska into compliance in 2019 and issued an opinion that prohibited the state from collecting union dues from public employees unless employees provided explicit, annual consent. This policy was supported by the Mackinac Center’s Workers for Opportunity initiative, a national project that seeks to protect workers’ First Amendment rights.

Several states, including Michigan, have adopted similar practices for some of their public employees. A 2020 rule change by the Michigan Civil Service Commission required the state to annually obtain direct consent from most state employees before withholding union dues.

Michigan witnessed a significant drop in union membership following the rule change. The union membership rate of the state employees impacted by the rule was 75.6% a month before the rule change was announced. A little more than two years later, in September 2022, that membership rate dropped to 67.0%.

If these reforms were implemented nationwide, the impact of the Janus decision could be fully realized. Based on the most commonly cited union membership data from the U.S. Bureau of Labor Statistics, if the effects of Michigan’s reforms were to be extrapolated nationwide, about 1.75 million more public employees would exercise their right to opt out of a union. Using a more accurate measurement of membership rates that relies on detailed payroll data, 800,000 more employees could be added to this estimate.

“Over a million public-sector employees across the country may be financially subsidizing political speech they disagree with, simply because they’re unaware of their constitutional rights,” said Patrick J. Wright, vice president of legal affairs at the Mackinac Center. “In Janus v. AFSCME, the U.S. Supreme Court announced a major decision regarding First Amendment rights. Now is the time to enforce it.”

Read the full brief here.