In a recent opinion, Texas Attorney General Ken Paxton stated Texas’ local and state government agencies are obligated to provide notice to employees of a First Amendment right to opt out of dues that fund political speech. The attorney general adds that those agencies should likely be required to obtain consent from employees to deduct their dues for those purposes on a yearly basis.

The opinion comes as Texas has been a battleground for an ongoing fight between Republicans and government unions over the issue of public sector union dues, which are collected by the State of Texas and remitted to the unions. Unions often use the dues to fund political activity and donate to Texas Democrats.

By continuing this practice, Texas further emboldens unions and diminishes the rights of employees. In states where union members manually contribute their dues regularly, unions have seen a sharp decline in membership.

Prohibiting government-union collusion isn’t intended to stifle the speech or ability of public sector unions to advocate for their members, as union members would still be able to contribute to associations of their choosing. The only difference is that the burden would simply fall on the unions, rather than taxpayers, and this potential conflict of interest would be removed.

Ending the practice was a legislative priority of the Texas GOP last session, but legislation to accomplish it was never even filed in the Texas Legislature.

In seeking an opinion from Paxton, State Rep. Briscoe Cain (R-Deer Park) appears to hope to accomplish a partial victory on the issue by using recent Supreme Court precedent. Paxton seems to concur.

According to the Paxton press release:

“The opinion reaches a number of conclusions about the application of Janus to payroll deductions for payment, membership fees, or dues for public sector unions and other eligible organizations. First, the State must ensure that public employees consent to a payroll deduction and that fees or dues are collected in a way that ensures voluntariness, such as requiring that the employee, not an employee organization, submits authorization of a payroll deduction to their employer. This is necessary because, according to the Supreme Court, a waiver of First Amendment rights “cannot be presumed,” but rather “must be freely given” as shown by “clear and compelling evidence.”

 

“Second, while Janus doesn’t compel specific language, employees should be provided with notice that a consent to membership waives their First Amendment rights and that they may revoke their consent at any time. Third, once given, consent to payroll deductions cannot be perpetual; rather, it must be renewed on a regular basis, such as within one year after being given.”

Paxton’s opinion is a welcome step in the right direction, but Texans’ speech rights will be better protected by actions rather than mere words. Paxton should explore reforms on his side to ensure the State of Texas is in compliance with Janus and other free speech protections. And Cain should ensure legislation to ban the practice entirely is filed and passed in the Texas House next session.

Cary Cheshire

Cary Cheshire is the Vice President of Texans for Fiscal Responsibility. A 6th Generation Texan, Cary attended Texas A&M University was active in a number of conservative causes including Ted Cruz's Senate campaign. He has also worked on campaigns to elect conservatives to Congress and the Texas Legislature. Cary enjoys college football, genealogy research, and the occasional craft beer.

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