The following is testimony submitted for presentation to the Senate Regulatory Review Committee by the Mackinac Center’s Steve Delie on April 1, 2021.
Good morning, and thank you very much for having me.
My name is Steve Delie, and I am the director of labor policy for the Mackinac Center, as well as the director for its Workers for Opportunity initiative. I am here today to testify in favor of House Bill 88, which helps to secure the First Amendment rights of Missouri’s public employees.
HB 88 enacts protections that were recognized by the United States Supreme Court in its 2018 Janus v. AFSCME opinion. In that case, the court recognized that every act of speech on behalf of a public sector union was an inherently political act, and clarified that an employee cannot be compelled to financially support that speech without certain First Amendment protections.
Specifically, the Supreme Court noted that an employee’s waiver of his or her First Amendment rights must satisfy certain standards, and that such a waiver could not be presumed. To satisfy constitutional requirements, “employees [must] clearly and affirmatively consent before any money is taken from them.” This requires evidence that an employee’s waiver is a “knowing, intelligent act … done with sufficient awareness of the relevant circumstances and likely consequences.” “An effective waiver must … be one of a ‘known privilege or right.’” It must also be done with “a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Therefore, before employees can consent to dues deductions, they must know both what their rights are and the consequences of waiving those rights.
This is precisely what HB 88 accomplishes. Simply put, this bill requires public employees be provided with a notice and description of their First Amendment rights, to ensure that any decision to waive those rights can be made in a knowing and voluntary manner. The language of this notice is, in our opinion, sufficient to satisfy the requirements for a valid waiver pursuant to Janus.
We also support those provisions of this bill that would require such notice be provided to employees annually, who must then opt in to continue their union membership. As stated in Janus, the waiver of First Amendment rights cannot be presumed, but must be demonstrated by clear and convincing evidence. And a long line of Supreme Court cases makes clear that the waiver of a constitutional right does not continue in perpetuity. In Knox v. SEIU, the court affirmed that the factors influencing a party’s decision to support a union may change over time, and that a fresh opportunity to affirm support can be required. This is consistent with the court’s jurisprudence on other constitutional rights, particularly Miranda rights, in which a one-time waiver has consistently been determined to not constitute a perpetual waiver.
Finally, we support this bill because it is simply good bookkeeping. When Missouri’s public employers provide annual notices and receive annual waivers, they will be able to clearly demonstrate that they are doing what the First Amendment requires. And employees will be kept well informed of their rights, which helps to ensure that their decisions are made in a voluntary and fully informed manner.
If the committee has any questions at this time, I would be happy to answer them.
Steve Delie is the director of labor policy and Workers for Opportunity at the Mackinac Center for Public Policy. In this role, he is in charge of marketing efforts, media strategy, and overseeing policy campaigns and objectives.