Mark Janus was the plaintiff in Janus v. AFSCME, a case that reached the Supreme Court and was decided in June 2018. In the accounts given across three episodes of The Bob Zadek Show, Janus appears less as a biographical subject than as a name attached to a constitutional question: whether public employees in unions could be required, as a condition of employment, to pay union dues or agency fees. The excerpts identify him as a public employee out of Illinois What the IRS’s Hiring Spree Means for You (2023) and treat him repeatedly as a placeholder for all public service workers paying agency fees, with Bob Zadek conceding that he did not know what Janus actually believed The Two Faces of Janus v. AFSCME (2018).
The case and its holding
The result of the litigation, as described by Jeff Barke, was that public employees in unions were no longer required to join a union as a condition of employment California’s New Union Gag Order Violates 1st Amendment (2020). Barke, an elected school board member for twelve years with Los Alamitos Unified School District, frames the ruling as ending the requirement that a member of the union pay union dues as a condition of being an employee of that particular school district. He notes that the decision was ruled in June of 2018 and that he and others celebrated it as the right decision.
Bob Zadek insists the case be understood as something other than an economic dispute. In his framing, the Janus case was not a dues case but a free speech case, because the Supreme Court has long held that compelled contribution to an organization expressing a political view compels the contributor to speak through the union against his will, and compelled speech is as prohibited as denial of speech California’s New Union Gag Order Violates 1st Amendment (2020). Barke agrees completely that it was about free speech, adding that the union remains free to use its dues for political speech while employees now have the right to opt in or not with their dollars.
In the earlier episode, Zadek describes Justice Alito’s treatment of the free rider issue in the decision: Alito said the free rider issue can be dealt with in lots of other ways, and under established constitutional principles, when free speech rights are implicated, the government bears a heavy burden to show the goal cannot be accomplished by other means The Two Faces of Janus v. AFSCME (2018). Zadek also reports that the Court regarded the unions’ allocation of expenses between political activities and contract negotiation and administration with skepticism, because so much judgment is involved and it is human nature to expect unions making the calculation to resolve judgment calls in their own favor.
The argument against the ruling
Jonathan Tasini, publisher and editor of Working Life, characterizes Alito as probably one of the smartest justices on the conservative wing and the most committed ideologue in that wing, and says Alito came up with a concoction to justify overturning a 40-year precedent The Two Faces of Janus v. AFSCME (2018). Tasini does not claim every division of costs was perfect, but says he knows internally from unions he is familiar with that they spend an enormous amount of time doing that division. He notes that the precedent overturned was a unanimous decision 40 years earlier, decided when conservatives and liberals were not ideologues with a political agenda.
Tasini’s central objection is to what he calls the “something for free” ethos. He asks whether it is a decent notion that Joe Smith or Mark Janus, receiving the benefits of collective bargaining, should not be required to pay a fee, and invokes the principle that you cannot get something for free in America. He adds that he doubts any of the people who say they do not want to pay union fees then turn back the wages and benefits that come with them.
Zadek grants the American ethos that one should pay one’s fair share, but argues that when a union negotiates the highest wages for public service workers, it is in effect effecting a political decision, because money paid to teachers in a contract is money not paid for police protection, roads or sewers The Two Faces of Janus v. AFSCME (2018). He offers a hypothetical: if Mark Janus believed as a political matter that his community should allocate more money to police protection and less to education, then compelling him to support a union negotiating for a bigger piece of the pie makes him support a political position he does not endorse — clearly compelled speech. Tasini responds that people wear different hats: as a citizen one may vote for a legislator on budget grounds, but as a worker one has an obligation to pay for a benefit received, and if Janus felt strongly he could resign his job.
Zadek presses the point with an analogy to health insurance under the Obamacare plan, where he says he would be compelled to buy coverage for maternity or other illnesses he would never use. He argues that what is described as a benefit — higher wages — may be a detriment to Janus, who would rather have the money, so the free rider concept carries an asterisk The Two Faces of Janus v. AFSCME (2018). Tasini answers that society pays for things because we are part of a larger community: he cites his own opposition to military spending, which he says has huge political effects, yet he does not get to send his tax form in and claim a free speech violation. He adds that living in an organized society involves give and take, and some things happen that we do not want.
Aftermath in California
Barke describes a section passed by the California legislature and signed into law, which he identifies as 3550, providing that elected officials must tread very lightly and are not allowed to have a conversation that could potentially deter or discourage a member from joining the union California’s New Union Gag Order Violates 1st Amendment (2020). He says that under it, an elected official no longer has the right to speak freely about the Janus case or about any other union activity, on pain of an unfair labor practice lawsuit. Barke, who notes he is not an attorney, describes the prospect of being sued, along with the board and the district, over a conversation at the supermarket, and objects that the district’s limited general funds would be used to defend such a lawsuit. He says he cannot imagine anybody believing the state government should be allowed to tell him as an elected official what he can say to his constituents.
Zadek’s own summary of the post-decision landscape is that no one knows exactly what the effect of Janus on worker life in America will be, and that unions and legislators are working hard to find statutory workarounds — some of which will fail, some succeed, some be found unconstitutional The Two Faces of Janus v. AFSCME (2018). He notes that public service unions are a relatively new phenomenon in America and that Franklin Roosevelt was opposed to unions representing government workers.
Across episodes
The same question — whether compelled fees are a free speech violation or a fair payment for a benefit — is argued in the 2018 episode between Zadek and Tasini and revisited in the 2020 episode between Zadek and Barke, but the excerpts show no development in the argument itself: the 2018 exchange is a debate over the merits, while the 2020 exchange takes the free speech characterization as settled background for a challenge to California’s 3550, and the 2023 excerpt treats Janus only as the starting point for an opt-out campaign. The 2023 episode adds a concrete figure absent from the earlier two: since Janus in 2018, the Freedom Foundation has helped 132,000 people leave their unions, stop paying dues, and keep 267 million dollars What the IRS’s Hiring Spree Means for You (2023). The speaker also says the organization was not involved with Mark Janus but has worked with him since.
What the sources do not cover
The excerpts do not state Janus’s job title, his employer beyond the identification of him as a public employee out of Illinois, or his own account of his reasons for suing. They do not name the 40-year precedent that was overturned, nor the amendment or amendments on which the decision turned, beyond the general invocation of free speech principles. The mechanics of the case — the lower courts, the briefing, the vote — are absent, as is any description of what Janus held beyond the end of compulsory fees. The 2018 episode also breaks off mid-sentence at two points, and the 2023 excerpt ends with an unattributed speaker label, so nothing further can be drawn from those passages.