an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
By Undermining Unions, The Roberts Court Will Do Still More Damage to Our Democracy
Tabatha Abu El-Haj
Poll after poll reveals a bipartisan consensus that wealthy interests exert too much political influence, yet the Roberts Court is positioning itself to use the First Amendment to strike one more blow against the political power of ordinary Americans. The case is Friedrichs v. California TeachersAssociation, a relatively obscure labor law case. Twenty-five states have adopted right-to-work legislation that prevents unions from compelling any individual from paying any fees as a condition of employment. California, however, permits unions to set up what are known as “agency shops” in which no one is required to join the union to maintain employment, but everyone is required to pay a “fair-share service fee” for representation in collective bargaining. The Friedrichs petitioners have invited the Court to rule that such agency shop arrangements are unconstitutional, at least for public unions. All indications are that the Supreme Court will accept that invitation, overruling Abood v. Detroit Board of Education (1976) and providing a rationale that will easily be extended to private-sector unions.
Any decision by the Court that strikes a blow to unionism will further erode the political power of ordinary Americans relative to wealthy Americans, just as a decision to undermine church-going or parental involvement in school boards would. By promoting political participation among ordinary Americans, unions, like churches, PTA, and the Rotary Club, are part of a virtuous circle of civic mindedness, political engagement and democratic accountability – one that the First Amendment was established to protect not undermine.
While the public is preoccupied with Citizens United and the flood of money it has unleashed into electoral politics, many political scientists believe that the solicitude of government officials to the preferences of wealthy citizens and donors results from deeper and longer-standing trends, including the increasing organizational advantage of socioeconomic elites compared to the middle class. Affluent Americans today are estimated to be three times more likely to belong to civic organizations than middle-class Americans. Three times more likely, that is, to belong to organizations like the Chamber of Commerce, which has been a key sponsor of right-to-work legislation. Lost in the acrimonious debate about the merits of public-sector unionism is an appreciation of the fact that unions remain the secular backbone of the civic and political life of many ordinary Americans. Even today union households turn out on election days at much higher rates than non-union households.
Neither First Amendment doctrine nor principles dictate such a result. Friedrichs, like Abood, is a case of alleged compelled association, despite the petitioners’ best efforts to distract the Court with the suggestion that it is a case about compelled ideological speech. Nonunion members’ primary objection to the agency shop arrangement is that it constitutes an “impingement on [their] associational freedom” to refuse to associate with the union, as explained in Abood. The text of the First Amendment protects separately the freedom of speech and a particular form of conduct – “the right of the people to peaceably assemble.” The right of association is an extension of the latter, both historically, as John Inazu has argued, and functionally, as I have argued. Associations do speak, but their unique contribution to our democratic system is less a product of the fact that they speak than of the fact that they organize – drawing in individuals through relationships personal and professional.
Once the associational angle is placed front and center, the mirage that petitioners’ freedom of association has been severely burdened by the agency shop arrangement vanishes even under existing doctrine. Abood’s central holding prohibits the compelled payment of fees to cover political and ideological projects but allows unions to charge nonmember employees fees for services related to collective bargaining over terms and conditions of employment. In essence, this creates a distinction, for First Amendment purposes, between unions as associations of employees (and therefore of employment related advocacy) and unions as civic associations (and their related political advocacy). This distinction is consistent with current freedom of association doctrine.
Even if we concede for purposes of argument that the agency shop arrangement constitutes compelled association, the union in its collective bargaining capacity is the sort of association that lies outside constitutional purview. Not all forms of association are constitutionally protected under established freedom of association doctrine – a fact Justice Alito neglected to explain in in his eagerness to cast doubt on the continuing validity of AboodKnox v. SEIU, Local 1000 (2012) when he emphasized that the “[f]reedom of association . . . plainly presupposes a freedom not to associate.”
Meaningful constitutional protection only attaches to intimate and expressive associations. Economic associations acting in economic capacities have not been recognized as expressive associations. Like trade and professional organizations, unions are generally considered too large and unselective to be afforded constitutional protection. Corporations, similarly, are not afforded protection under current freedom of association doctrine, except when they engage in political speech. Were it otherwise, unions and corporations would be constitutionally entitled, if they so chose, to defy state public accommodation laws and federal civic rights law – excluding membership or employment on the basis of race, gender and, where covered, sexual orientation – like the Boy Scouts of America did.
Even if one is critical of current doctrine, the claim that the petitioners’ freedom of association (or more precisely freedom not to associate) has been burdened by the requirement to pay the fair-share service fees borders on disingenuous. Non-union employees are only asked to pay this fee because they have chosen to associate as employees with their unionized co-workers. In other words, even if the very act of association is expressive, as John Inazu has argued, Friedrich has already made that expressive association in choosing to teach in California’s unionized public schools, rather in those few that are not unionized or in a private school. The fair-share service fee is directly related to this chosen association. It covers collective bargaining over terms and conditions of employment.
Equally importantly, the nonunion employee’s right to oppose unionism is fully preserved. She is free to refuse to join the union qua civic association and, even more specifically, free to refuse to subsidize its political speech. (There is an opt-in/opt-out debate, but even petitioners recognize this is not what this case is really about, devoting only the last four pages of their brief to the issue). As the Abood Court noted, “A public employee who believes that a union representing him is urging a course that is unwise as a matter of public policy is not barred from expressing his viewpoint. Besides voting in accordance with his convictions, every public employee is largely free to express his views, in public or private orally or in writing. . . . public employees are [generally] free to participate in the full range of political activities open to other citizens.” She is also free to join civic and political associations that oppose unionism.
Petitioners’ emphasis on the fact that this is a public union is a constitutional red herring. The essence of their claim is that it does not make sense to distinguish between public-sector unions as economic actors and public-sector unions as political actors: Collective bargaining relating to terms and conditions of employment in the public sector, they claim, is inherently political speech, materially indistinguishable from lobbying. As such, requiring nonunion employees of public-sector unions to a pay fair-share service fee is a form of compelled subsidization of ideological speech.
Whether or not the collective bargaining speech of public-sector unions is inherently political is immaterial: Petitioners have freely chosen to become public school teachers, in full knowledge that the have chosen a unionized work setting, with higher wages but also less autonomy over the terms and conditions of employment. In choosing to work for the government in a unionized setting, petitioners have already chosen association over non-association, as employees. There is no compelled speech. Petitioners are no more compelled speakers than any member of the Boy Scouts who prior to 2015 paid dues as a condition of maintaining membership, but opposed the associations’ exclusion of gay scoutmasters.
The real threat in this case is not to petitioners’ freedom of association but to the First Amendment interests the freedom of association guards. A decision in favor of the Friedrich’s petitioners strikes a blow to one of the prerequisite of representative government – a robust civil society populated by a diversity of active civic groups. Fair-share service fees make unions more possible, and unions make self-governance more possible by supporting the organizational capacity of working and middle class Americans.
The First Amendment shields individuals from compelled speech and association, but it also compels the protection of existing civic associations. The labor regime sought by the Friedrichs’ petitioners leads us quickly into the tragedy of the commons: Even pro-union workers might make the economically rational decision to withhold their fees, hoping that others will fund the union, but rapidly undermining it. By contrast, under the existing labor law regime in California and those states with similar laws, there is no similar opportunity to free ride. Both union and nonunion employees are required to pay their fair share of the employment-related representation the union has a duty to provide on an equal basis. Compelled fair-share service fees are necessary to counteract the very real free rider problem that would arise among members if such fees were optional.
Abood’s central holding is sound. The First Amendment protects individuals in the service of preserving the necessary conditions of representative government. Freeing nonunion members from compelled association with the union or compelled political contributions facilitates the individual’s First Amendment right to choose to dissent from the project of unionism and to join opposing political associations; refusing to extend to that same individual a First Amendment right to refuse to pay fees to cover employment-related representation ensures a structural interest in facilitating the sorts of civic organizations that foster informed political participation.
Tabatha Abu El-Haj is Associate Professor of Law, Drexel University Thomas R. Kline School of Law. You can reach her by e-mail at taa53 at drexel.edu