Agency shop fees on the brink
Alexis De Tocqueville was deeply impressed by America’s use of voluntary associations to pursue undertakings both large and small, in every aspect of life. Public employee unions may soon be included in that category of voluntary associations, as several justices in today’s oral argument in Friedrichs v. California Teachers Association seem poised to strike down laws that require non-members of public employees unions to subsidize the union’s activities, including collective bargaining. In so doing, it would need to overrule Abood v. Detroit Board of Education, a forty-year old case that permitted public employee unions to garnish workers’ wages on the theory that without such an entitlement, the unions’ collective bargaining efforts might be undermined by “free riders.” 
Abood was weakened but still standing after recent Court decisions in Knox v. SEIU and Harris v. Quinn questioned the premises on which Abood is based. Friedrichs squarely answered the Court’s invitation to challenge Abood’s continued viability. Given the pro-individual rights decisions of Knox and Harris, many union advocates pinned their hopes that Abood would survive on Justice Scalia, whose opinion in a 1991 union dues case (Lehnert v. Ferris Faculty Assn.) focused on the union’s duty to represent both members and non-members, and expressed concern about free-riders. But Justice Scalia’s focus today was on the mandatory, compulsive nature of the requirement that forces employees to contribute to any cause–whether they believe in it or not. Justice Kennedy reframed the issue from “free-riders” to “compelled-riders.” And Justice Scalia, as well as Chief Justice Roberts, particularly stressed Pacific Legal Foundation’s major focus as amicus in the case: that all public union collective bargaining is inherently political and affects public policy. The attorney representing the state of California initially agreed that even core collective bargaining matters of wages and promotion are “necessarily political” but then tried to backtrack. Chief Justice Roberts asked for an example of a non-political issue in collective bargaining and the state’s attorney suggested “mileage reimbursements.” The justice disagreed, because “it’s all money,” which is to say, tax dollars, that must be allocated amongst public education, public housing, welfare benefits, etc.
Justices Breyer and Ginsberg raised the point that a decision in favor of the teachers here would have ripple effects in other areas, specifically some states’ requirement that all attorneys be members of and financially support the state bar association, and public universities’ assessment of student fees to subsidize a variety of political and ideological groups and activities. Friedrich’s lawyer, Michael Carvin, distinguished those circumstances, presumably to focus the Court’s decision solely on the question of public employee unions. And it’s true that public employee unions are in a uniquely powerful position both to influence the adoption of public policies and to coerce and intimidate workers who disagree with union priorities. Despite those distinctions, a broad First Amendment based decision in Friedrichs could lead to renewed challenges to the integrated bar and mandatory student fees, particularly where the cases upholding those instances of compelled funding were grounded on cases that might be overruled in Friedrichs.
A win for Rebecca Friedrichs is a win for good public policy as well as constitutional rights. When the state gives public employee unions the exclusive power to seize workers’ earnings directly from their paychecks so that the union can turn around and lobby the government for yet more power, dissenting employees—and taxpayers—are shut out of any meaningful role. Returning the unions to their original status as voluntary associations restores the individual rights of all employees and the responsibilities of the unions to earn member support.
A shorter version of this blog post appears at Edsource.org.