Do “Agency Shop” Rules Violate the First Amendment?
The last couple of weeks have delivered huge news from the U.S. Supreme Court on contentious questions ranging from the definitions of “state,” “marriage,” “legislature,” “jiggery pokery,” and “cruel and unusual punishment,” to the scope of the EPA’s power to regulate emissions from coal plants and the use of a “disparate impact” standard in housing discrimination cases.
But one of the biggest pieces of SCOTUS news emerging from the term’s final hours was the court’s decision to take a case out of California that could severely curtail the political power of America’s teachers unions.
Friedrichs v. California Teachers Association seeks to overturn the court’s 1977 decision in Abood v. Detroit Board of Education, which upheld public-sector “union shop” rules and maintained that unions could charge non-members for collective bargaining activities. The Friedrichs plaintiffs argue that the rule requiring public employees to opt out of contributing a portion of their dues to union political activity — as opposed to allowing them to opt in — violates their First Amendment rights.
If Rebecca Friedrichs and her colleagues prevail, public-sector union membership would no longer be compulsory.
The Cato Institute’s Jason Bedrick points out, “Federal law allows dues-payers to opt out of the portion dedicated to express political activities (e.g. – lobbying), but the petitioners argue that public-sector collective bargaining itself is inherently political.”
Cato also filed an amicus brief in the case, which makes a powerful point:
[W]hen it comes to public-sector unions, it is somewhat bizarre to say that some of the spending is “political” and some isn’t. A teachers union may run political ads advocating for particular public policy positions, but it also collectively bargains in order to fight for similarly “political” gains, such as class size, school year length, and teacher qualifications. In a sense, a teachers union is just another political party that lobbies the government for preferred policies, and, whether it is spending on political ads or collectively bargaining, both are “political.”
The National Education Association and its California affiliate are not pleased with this news. The unions on Monday issued a joint statement with the American Federation of Teachers, the Service Employees International Union, and the American Federation of State, County and Municipal Employees, decrying the court’s decision to take the case:
We are disappointed that at a time when big corporations and the wealthy few are rewriting the rules in their favor, knocking American families and our entire economy off-balance, the Supreme Court has chosen to take a case that threatens the fundamental promise of America—that if you work hard and play by the rules you should be able to provide for your family and live a decent life.
The Supreme Court is revisiting decisions that have made it possible for people to stick together for a voice at work and in their communities—decisions that have stood for more than 35 years—and that have allowed people to work together for better public services and vibrant communities.
The fundamental promise of America says nothing about compelling workers to join a union or pay for a union’s political agenda. And although the Abood decision is nearly 40 years old, the First Amendment is quite a bit older.
The unions are right to worry and it’s no wonder they’re trying to change the subject. As Larry Sand reported at City Journal California last year:
If the Supreme Court overturns Abood, it would change the political landscape drastically. When Wisconsin’s Act 10 made teacher union membership voluntary, the unions in that state lost about one-third of their membership and a substantial amount of clout. If the same percentage of teachers quit the California Teachers Association, the union would lose approximately $62 million a year in dues. Considering the teachers’ union spent more than $290 million on candidates, ballot measures, and lobbying between 2000 and 2013—by far the most of any political player in the Golden State—such a loss would be crushing. And it’s no secret that CTA spending moves almost exclusively in a leftward direction. Between 2003 and 2012, the union gave $15.7 million to Democratic candidates and just $92,700 to Republicans—a ratio of roughly 99 to one. CTA has also spent millions promoting controversial causes such as same-sex marriage and single-payer healthcare, while opposing voter ID laws and limitations of the government’s power of eminent domain.
But a Supreme Court decision wouldn’t be limited to California, of course. As Sand pointed out, “The National Education Association, which hauled in nearly $363 million in forced dues in 2013–2014 and spent about $132 million of it on issue advocacy, would have to curtail its political largess considerably.”
The court in 2013 seemed to lay the groundwork for doing away with Abood in Harris v. Quinn, which held that home healthcare workers couldn’t be forced to pay agency shop fees to the SEIU. Justice Samuel Alito writing for the court made a distinction between the home workers and “full-fledged” public employees. But he suggested in the ruling that there also may be a distinction to be made between private-sector union collective bargaining and public-sector union collective bargaining.
“Collective bargaining concerns the union’s dealings with the employer; political advocacy and lobbying are directed at the government,” Alito wrote. “But in the public sector, both collective bargaining and political advocacy and lobbying are directed at the government.” By that logic, it wouldn’t be much of a stretch to make mandatory fees voluntary in California and 25 other states where union-shop rules prevail.