by John Aronno
Imagine you’ve got a free weekend. No obligations. Free. Time. “Boy howdy,” you say to yourself with a deep exhale.
Now, imagine a new show is set to drop the night of this newfound bloc of freedom. It’s been a rough day tucked inside a rough week topping off a rough month entombed in a year of “God, let this be over.” A Russian nesting doll of despair. A weekend entertainment binge is exactly what you need. You’re cozily wrapped in blankets, remote in hand, as you click “play.”
Then, an error message appears: “User failed to waive their First Amendment rights during the annual opt-in period. Streaming services unavailable.”
They’d probably attach a helpless “Error Code 39572309,” as they do. You Google it, sure you’re a click away from remedying the issue and slipping off into escapist bliss. But the code informs you that Netflix pledged to work with the ACLU to fight Georgia’s recently passed anti-abortion law. That support includes money derived from revenue earned from user subscriptions. Or maybe it’s Amazon, which spends millions of dollars every year on D.C. lobbying. Because you did not opt-in, approving said political speech, you do not get to enjoy the show.
Maybe you’re just trying to watch something through GCI. In 2016, GCI spent over $2 million on “Alaska’s Future” – a coalition that supported failed attempts to restructure Permanent Fund earnings to fund State services. Alaska Airlines was also a part of that coalition. What if planning travel faced similar restrictions? Northrim Bank was, too. What happens if you need cash?
Worst. Weekend. Ever.
Breathe easy for now, as those are held to a different standard than public unions. But Anchorage middle school teacher Marnie Hartill posted the analogy on Facebook last week in reaction to a memo from Attorney General Kevin Clarkson, subsequent to a recent Supreme Court decision: “Let me get this straight: I have autopay activated on all my bills and memberships – to many corporations who lobby and make political statements: Apple, GCI, Insurance, Electric, and Banks – all which allow me to continue to pay and receive services for my convenience without interruption. Now my union membership is somehow different? I chose to join and am fully aware of my membership. I receive benefits of my membership and reminders of the value of my membership in my union several times a week. How on earth is this fair to my union or convenient to me? If that is the case, then EVERY corporation would need to halt all autopay accounts after 1 year and require renewal. It’s bonkers.”
The court case is Janus v AFSCME, which overturned 40 years of precedent and dealt a major blow to collective bargaining rights for public employees. At the root of the decision was a finding that the practice of states taking voluntary membership fees out of union employees’ paychecks violates the First Amendment and is unconstitutional. Workers already had the right to opt out of union activities for explicitly political causes, but the new ruling expands that to include collective bargaining, which the court majority found also to be political in nature.
“Because the compelled subsidization of private speech seriously impinges on First Amendment rights, it cannot be casually allowed,” Supreme Court Justice Samuel Alito wrote.” Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed.”
In April, Bloomberg Law reported that AFSCME saw a one-year drop in membership of 98 percent and the SEIU fell by 94 percent. The fallout hasn’t yet hit Alaska, which had a 0.4 percent increase, according to the U.S. Bureau of Labor Statistics.
Alaska Attorney General Kevin Clarkson sent a 12-page memo to Gov. Mike Dunleavy last week making recommendations on how to bring the State into compliance with his interpretation of the Janus decision. He proposed creating an online system that would require public employees to log on and run through a series of questions asking if they (for sure, really though, seriously think about it) wanted to “opt in” to union membership.
“In order to implement Janus’s requirements, the Governor may... establish a procedure to ensure the State honors the First Amendment rights of its employees,” Clarkson wrote. “The employee would also have to be aware of the consequences of waiving that right – i.e., that the union could use his money to fund union speech on a broad swath of politically significant issues, from state fiscal issues to civil rights and environmental issues, including speech with which the employee disagrees.”
That opt-in would be required annually and failure to do so would mean they would automatically be opted out, courtesy of the State.
As Slate’s Mark Joseph Stern notes, this strategy should sound familiar: “If it’s implemented, unions would be treated like abortion clinics in red states: heavily regulated and compelled to provide a state-mandated script explaining all the reasons why workers should not want to join a union. Employees themselves, meanwhile, would be treated like abortion patients in red states: forced to hear the state explain why they should not make a certain choice before they are allowed to choose.”
Clarkson is no doubt familiar with the comparison. He was instrumental in the drafting, litigation, and defense of the 2010 requiring medical professionals to give a minor’s parent or legal guardian 48-hour prior notice of a planned abortion before performing the procedure. The court struck it down. In February, he defended Gov. Parnell-era regulations defining what represented a “medically necessary abortion,” qualifying the procedure for Medicaid reimbursements; struck down as well. And, earlier this summer, he defended Dunleavy’s move to veto a $334,700 appropriation to the Court’s budget – an act of retribution reflecting the amount the State pays annually for Medicaid-reimbursed abortions.
“It’s certainly possible for anyone to say that they disagree with the policy decision the governor made to veto the funds from the court system’s line item appropriation and for the reasons that he did it,” Clarkson said Tuesday night at a forum held at Anchorage’s Captain Cook. “But I don’t think it’s possible to say he violated separation of powers when he did it. And that’s because the constitution expressly grants the governor the power of the line item veto.”
I asked him about his interpretation of Janus and how he reached the conclusions he outlined for the governor.
“What we’re talking about in this context isn’t whether people can be members of unions,” Clarkson replied. “What we’re talking about is public employers who are required by law, like in Alaska, to take money out of a public employee’s paycheck and give it to the union. And before that can happen, what the U.S. Supreme Court has said, is that that employee has to affirmatively waive that First Amendment right, affirmatively opt in to the union and to having that money taken. And what we were doing in Alaska was an opt out, which means you’re presumed in unless you say ‘I’m out.’ That is not what Janus requires. Janus requires the opposite.”
But Janus did not mandate such rigid requirements as opt-in windows, statements of intent, hurdles of reasons as to why they shouldn’t consent to payroll deductions, and other recommendations made by Clarkson. Alaska is the only state to propose them. A dozen states have interpreted the decision to lesser extents, because Alito’s opinion limited itself. Clarkson’s proposal paints a picture of a world in which user agreements are an alien concept adopted by naive victims unable to make decisions for themselves. One would be hard-pressed, and quite cynical, to suggest that union members need a preordained window of affirmation to give permission to pay for collective bargaining and union representation, just as I don’t need to opt-in to watching “Carnival Row” every time I want to watch an episode and why are you asking me to? How little do we think of public workers?
Indeed, the analogy articulated by Hartill upon which I elaborated presents a slippery slope argument. But at the heart of it is the very real threat of mission creep, hyper-fueled by an expanded executive authority over free speech (both protections of and regulations over), and a resulting disruption of service. If a lawmaking power deems political speech “damaging” and imposes regulations against it in one arena, it can do so in another. If Netflix takes a stance on “a broad swath of politically significant issues, from state fiscal issues to civil rights and environmental issues, including speech with which the employee disagrees,” than failure to “opt in” to that political speech in an identical situation means you don’t get what you signed up to pay for. The unions in question will still provide the service, whether employees pay for it or not, for as long as they are financially able to. That’s a big difference now; it’s a bigger difference when they can’t.
Gov. Dunleavy wrote in a press release accompanying the memo last week, “My administration will be working to ensure the State is in full compliance of the law and that Alaskans are informed of their rights.” While I’ve heard the term “Orwellian” thrown around in descriptions of Clarkson’s guidelines, I think Douglas Adams is a better fit. And when all is said and done, if we’re not careful, Dunleavy could very well add, “the plans were on display.”