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Mark Janus

Why There's No First Amendment Problem With Compulsory Union Agency Fees

Will Baude and I have cosigned a new amicus brief on this in Janus v. AFSCME.

|The Volokh Conspiracy |

In Abood v. Detroit Bd. of Ed. (1977), the Supreme Court held that requiring employees to pay funds to a union potentially violated the employees' First Amendment rights. (Union members of course paid such funds as a condition of their voluntary union membership, but under the Michigan rule, nonmembers would have to do it, too.) This burden on First Amendment rights, the Court said, was justified as to payments used for collective bargaining purposes, because of the government interests in preserving labor peace, and preventing free-riding on the union's collective bargaining activities. But, the Court unanimously held, this compelled funding had to be limited to collective-bargaining-related speech, and couldn't include funds used to pay for "other ideological causes not germane to its duties as collective-bargaining representative."

Unsurprisingly, this has led to a good deal of litigation about what is "germane" to collective bargaining, about what procedures may be used to gather the permissibly mandated fees without getting too much or too little, about how far this extends (compulsory bar dues for lawyers? compulsory student fees for university students?), and more. It has also led to calls—especially from some conservative and libertarian judges, lawyers, and scholars—to reject the entire germane/nongermane distinction, and strike down all such government-compelled payments. This term, in Janus v. ASFCME, the Supreme Court is confronting this very question.

My view, though, was the opposite: I don't think there's any First Amendment problem with compelled payments of union agency fees at all. The government can constitutionally require people to pay money to the government (in taxes), money that the government can then use for ideological purposes (e.g., supporting a war, opposing racism, promoting environmentalism, and so on). Likewise, the government can constitutionally require people to pay money to unions, money that the unions can then use for ideological purposes.

I don't say this because I support unions generally—indeed, I'm somewhat skeptical of modern American unionism, both public-sector and private-sector. But I don't see any principled First Amendment reason for forbidding governments from requiring such payments from public employees (just as I don't see any reason why the government couldn't just pay its employees less and then pay the saved sums to unions as a "labor relations consulting fee" or some such).

My coblogger Will Baude, it turns out, has the same view as to the First Amendment matter (I can't speak to his policy views on unionism). And when we were asked to sign an amicus brief in this Term's so saying, we naturally said yes. You can read the whole brief—drafted by Gregory Silbert, Adam Banks, and Samuel Zeitlin of Weil, Gotshal & Manges LLP, whom we thank for all their work—but here's the Summary of Argument:

[1.] Abood v. Detroit Board of Education, 431 U.S. 209 (1977), this Court has observed, is "something of an anomaly" when it comes to the First Amendment. Harris v. Quinn, 134 S. Ct. 2618, 2627 (2014) (internal quotation marks omitted). In fact, Abood is even more anomalous than previously acknowledged. For the first time, "Abood . . . recognized a First Amendment interest in not being compelled to contribute to an organization whose expressive activities conflict with one's 'freedom of belief.'" Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 471 (1997). Abood then concluded that some interference with this new First Amendment interest was "constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations," and the need to avoid free-riding on the public union's collective bargaining efforts. Abood, 431 U.S. at 222.

The Court has since questioned whether Abood balanced the competing interests correctly, noting, for example, that "free-rider arguments are generally insufficient to overcome First Amendment objections." Harris, 134 S. Ct. at 2627 (internal quotation marks and alterations omitted). Petitioner and his amici press similar arguments for reversing Abood here. See Pet. Br. at 36–37.

Where Abood truly went wrong, however, was not in how it applied the new First Amendment objection it recognized. Rather, Abood erred by recognizing that objection in the first place. Compelled subsidies of others' speech happen all the time, and are not generally viewed as burdening any First Amendment interest. The government collects and spends tax dollars, doles out grants and subsidies to private organizations that engage in speech, and even requires private parties to pay other private parties for speech-related services—like, for example, legal representation. To be certain, these compelled subsidies are subject to other constitutional restrictions. For example, the government cannot compel payments that violate the First Amendment's Religion Clauses or the Equal Protection Clause. But a compelled subsidy does not itself burden a free-standing First Amendment interest in freedom of speech or association.

So if Abood misapplied the First Amendment, it undercut a First Amendment interest that Abood itself miscreated. If anything in Abood should be revisited, it is the existence of the First Amendment interest itself. That is also sufficient reason to reject Petitioner's request to expand Abood's First Amendment holding by overturning it in the other direction.

[2.] There is certainly no First Amendment violation when the government itself engages in taxpayer-funded speech that some find objectionable. The content of that speech is protected from First Amendment scrutiny by the government speech doctrine. No matter how much we disagree with the government's message, we cannot withhold the portion of our taxes that support it. The First Amendment permits taxpayers who object to government speech to raise their own voices in opposition and to associate with others who share their views. And, of course, disgruntled voters can express their frustration at the ballot box. But those are their only remedies. They have no First Amendment interest to resist subsidizing government speech they happen to disapprove of.

The First Amendment analysis is the same when the government gives tax revenues to private entities to provide services that include speech. As with government speech, the government's choice of what services and what speech to subsidize does not implicate the First Amendment's freedom of speech and association rights, outside of certain exceptions like public forums. See Rust v. Sullivan, 500 U.S. 173, 200 (1991). Nor does the First Amendment constrain private grant recipients when they speak using government funds. Again, taxpayers who oppose these compelled expenditures have no right to withhold taxes, and no recourse besides engaging in speech or association themselves or voting for different government officials.

The only difference with the compelled subsidies challenged here (and in Abood) is that they involve payments made directly from one private party to another as a condition of public employment. But the government frequently conditions important activities on the purchase of speech-related services from private entities or individuals. Doctors and lawyers must enroll in continuing medical and legal education courses to remain in practice. States require entrants to a wide variety of occupations to purchase dozens or hundreds of hours of training and certifications. And a number of states require people buying real estate to be represented by an attorney at the closing. The government requires people to purchase non-speech services from private entities too, like car insurance and vaccinations, and the entities that receive these government-compelled funds are then free to spend them on objectionable speech.

The First Amendment does not provide freedom from any of these mandatory payments for others' speech. Practicing attorneys cannot refuse to pay for CLE programming because they disagree with the messages presented or because they choose not to associate with CLE providers. Home buyers cannot refuse representation by counsel in states that require it, even if they would prefer to spend their money on something else. These and other instances of private speech funded by government mandate need not be viewpoint-neutral, nor must they be justified by a compelling governmental interest. The First Amendment rights to freedom of speech and association simply do not guarantee that one's hard-earned dollars will never be spent on speech one disapproves of.

[3.] Stripped of Abood's unfounded First Amendment concerns, this is an easy case. The government has determined that collective bargaining is the best way to negotiate contracts and settle disputes with public employees. The government would undisputedly be free to establish a public collective bargaining agent, or to pay a private one directly from the public fisc. That it has chosen instead to pay its employees and then require them to hire the collective bargaining agent does not change the constitutional analysis.

[4.] Under the doctrine of stare decisis, Abood should not be overturned unless it reached the wrong result. It is not enough to note that Abood was badly reasoned, or that parts of the opinion were flawed. The Court should overturn Abood only if, going back to first principles, it can establish that the Free Speech Clause does protect a right that is violated by agency fees. But the First Amendment provides no such right. The judgment below should be affirmed.