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The Two Sides of Collective Bargaining: A Way of Looking at the First Amendment Question in Janus

The government always compels taxpayers to fund the management side of management-labor bargaining in public workplaces. Given this, why should there be a First Amendment problem with compelled funding (through agency fees as well as taxes) of both sides?

In Janus v. AFSCME, the Supreme Court is considering: Does it violate the First Amendment for a public employer to require employees to pay union agency fees, which will cover the costs of collective bargaining and contract administration? In Abood v. Detroit Bd. of Ed. (1977), the Court that such compelled agency fees implicate the First Amendment rights of government employees -- but that they are still constitutional because they are justified by "important government interests" in preventing "confusion and conflict" among rival unions, preserving "labor peace," and preventing "free rid[ing]" by employees who get the benefit of union representation but refuse to pay its cost. (Abood also held that such fees would not be constitutional to the extent they pay for ideological advocacy by unions, as opposed to bargaining and contract administration.)

In recent years, conservative Justices (and many conservative and libertarian commentators) have argued that this is wrong, and that agency fees should be categorically unconstitutional. Will Baude and I, though, take the view that there's just no First Amendment problem here in the first place, and have signed on to an amicus brief that so states. Requiring employees to pay money just doesn't violate the First Amendment (though requiring them to say certain things or actually join certain groups might).

Here is one way of thinking about the problem, at least as to agency fees being used for bargaining and administration: There are two sides to collective bargaining -- the employer and the employees. Say that a school board is negotiating with a teacher's union. The school board is represented by Manny, the management lawyer, and people working with him. The union is represented by Libby, the labor lawyer, and people working with her.

How is Manny paid? Through taxpayer funds, including taxes that school board employees (among other taxpayers) are required to pay. The taxes are deducted from employee paychecks, and some portion of them goes to collective bargaining on the school board's side.

Say that Owen, a school employee, objects to this use of money that he is compelled to pay (or objects to taxes altogether) -- maybe he disapproves of the school board's bargaining position, or just dislikes school boards. Does he have a Free Speech Clause basis for refusing to pay those taxes? He does not; indeed, forcing him to pay taxes isn't viewed by the law as at all implicating his Free Speech Clause rights (or his right to freedom of expressive association, which is derivative of the Free Speech Clause), even when those taxes are spent on government speech that's part of the collective bargaining process (or for other government speech).

Now say that the state wants Libby to be paid through agency fees that public employees are required to pay. These fees are deducted from employee paychecks, and they go to collective bargaining on the union's side.

Say that Olivia, a school employee, objects to this use of money that she is compelled to pay (or objects to agency fees altogether) -- maybe she disapproves of the union's bargaining position, or just dislikes unions. Why should she have a Free Speech Clause basis for refusing to pay the fees that pay for union-side bargaining, when Owen doesn't have a Free Speech Clause basis for refusing to pay the taxes that pay for (among other things) government-side bargaining?

I think she shouldn't, which is why I think Abood was mistaken in finding there to be a First Amendment issue present at all, and why those who want to strike down agency fees on First Amendment grounds are mistaken. If my analogy is correct, then both kinds of compelled payments (taxes used to support one side of the bargaining, and fees used to support the other) are equally constitutional.

Now agency fees may well be bad policy. Nothing says that the government must ensuring the compelled funding of both sides of the negotiation -- maybe it should only have compelled funding (through taxes) of the management side. There are certainly policy arguments against public employee unions, as well as policy arguments for such unions. But my point is simply that there's no First Amendment objection to government-compelled funding of both sides to the negotiation, just as there's no First Amendment objection to government-compelled funding of one side (the government side).

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  • BillyG||

    So if there is no first amendment argument against using an employees labor & money for which they disagree with, is there another constitutional argument against it? This isn't a tax which is applied to everyone regardless of employer, this is a fee solely applied to specific categories of individuals. Pay-to-play has been rejected so it can't fall under "if you want to be a government employee, you must accept this".

    It's the employees money, it's not being taxed away, what's the authority for taking it from the employee?

  • OtisAH||

    The costs of representation at the bargaining table, and elsewise, such as in disciplinary actions.

  • JesseAz||

    Which we, wink wink, know the unions are honest in accounting.

  • OtisAH||

    If you have evidence of a particular local's misappropriation of funds, go ahead and present it to the authorities. Otherwise, go wink yourself.

  • Brett Bellmore||

    In as much as the local authorities are going to be complicit, more or less by definition, winking is about all we can do.

    See this 2012 Supreme court ruling.

    " First, the SEIU's understanding of the breadth of charge- able expenses is so expansive that it is hard to place much reliance on its statistics. In its brief, the SEIU argues broadly that all funds spent on "lobbying . . . the electorate" are chargeable. See id., at 51. But "lobbying . . . the electorate" is nothing but another term for supporting political causes and candidates, and we have never held that the First Amendment permits a union to compel nonmembers to support such political activities. On the contrary, as long ago as Street, we noted the important difference between a union's authority to engage in collective bargaining and related activities on behalf of nonmember employees in a bargaining unit and the union's use of nonmembers' money "to support candidates for public office" or "to support political causes which [they] oppos[e]." 367 U. S., at 768."

    I think this encapsulates the typical union attitude towards agency fees.

  • OtisAH||

    Have you ever worked for the government — not on government contracts, for the government — and been in a public employee union?

  • Careless||

    I wonder why you think that would be relevant to the destruction of your argument

  • OtisAH||

    Because I have and am, and I want to know what experience the person who is telling me what is "typical" of Union behavior actually knows. As for the destruction of my argument, how so? The above clip from a case references political donations and lobbying. We're talking about fees relative to representation.

    Go back to reddit.

  • FlameCCT||

    I have worked for the government however I was in a State that did not mandate government employees had to be part of the union nor pay agency fees. I chose not to be part of the union specifically because of their own actions. I would note that the union was not required to support me in any actions either although if they thought it supported their actions then they could represent a non-union employee in said action. I further note that I was not able to negotiate salary or benefits as that was the exclusive purview of the union and I was stuck with whatever they negotiated.

    BTW: Today's unions are so far away from what they were originally organized to provide, instead they have become just another Progressive org with their exorbitant salaries for the union 1%ers with little support for the members. IOW they have become that which they opposed, Elitist Masters of their own little Progressive Plantations.

  • OtisAH||

    You raise a good point regarding compelled representation for people who refuse to pay a fee to the union. The "free rider" concern. Naturally, a local would like to represent as many employees as they can. There is strength in numbers, after all. But if someone doesn't want to be a part of my local then they're not really adding to that strength, are they?

    It's one thing if it is determined that employees don't have to pay the fee, and then get no benefit of the local's efforts. But the efforts I've seen so far seem to address solely the requirement to pay the fee and no attempt to rectify the compelled representation, which my (and I think many) jurisdiction(s) require(s).

  • FlameCCT||

    It is the laws themselves. The laws requested by unions to ensure more people paying through government force. I would note that the unions oppose any change to the laws.

    I have no problem with union dues/fees if the unions is restricted to negotiating/representing the employees with the employer. IOW, restrict both the union and employees. However once you restrict the employee without restricting the union then you have several Constitutional issues.

    The simple solution is to either restrict both; i.e. mandatory dues for all and unions only negotiate/represent employees (no political activity) or restrict neither; i.e. employees choose to join union or not and unions represent members (with choice to represent other should it fit their agenda, i.e. pro bono).

  • Stephen Lathrop||

    Do you support treating unions and corporate managements alike? That is, no political participation for either, unless with the prior consent of their stakeholders.

  • damikesc||

    If you have evidence of a particular local's misappropriation of funds, go ahead and present it to the authorities. Otherwise, go wink yourself.

    Money is completely fungible. EVERYTHING stolen from employees will go towards advocacy.

    And public unions, in particular, are onerous as there are no two sides to the equation. NOBODY has "their" money on the line. All we have are unions, whose "members" vote for the "management" who then "negotiate" with them.

    This is a thoroughly sad view by Volokh.

    I don't see why I, as a taxpayer, should be required to collect money on behalf of a group who is set up in opposition to me. Because, in the end, it is US as the state who are collecting the money.

    I hope, vigorously, that your view is slammed in court as the load of shit it is.

  • OtisAH||

    No. But you do get a Derp point for being the first to mention "fungible."

  • damikesc||

    Sorry if reality hurts your feelz.

  • OtisAH||

    No.

  • damikesc||

    Ah, so you don't get the concept of the fungibility of money. Not surprised.

  • Intelligent Mr Toad||

    "Fungible" means "tasty in mushroom sauce". The root is fung, as in "fungus". The Italian for "spaghetti with mushrooms" is "spaghetti con i funghi".

  • BillyG||

    So to start with, what if I do not wish the union to represent me? How do I de-certify the current union and start/join a different one?

  • OtisAH||

    You need at least 30% of the member's to agree to call the vote and a majority of the members to approve. Would you care to share your current objections?

  • Brett Bellmore||

    And good health insurance, and life insurance if you have dependents...

  • NToJ||

    What do you mean pay-to-play has been rejected?

  • Rev. Arthur L. Kirkland||

    If you don't like the fees associated with riding a government bus, or visiting a government park, or crossing a government bridge on the way to work, find another method of transportation, another entertainment, or a different route (or a different job).

    If you don't like the fees associated with union employment (government or private), find another job.

    There is no compulsion associated with this issue. Pay union dues, find a non-union employer, or start a business. In any event, quit whimpering.

  • Brett Bellmore||

    The government bus department doesn't typically launder funds back to particular politicians in return for increased wages. (Or perhaps I'm naïve here, and they do.) Unions do exactly this: They take government funds as dictated by politicians, and make donations of money and campaign labor back to those politicians.

    This makes government employee unions problematic even aside from compelled association.

  • OtisAH||

    Locals do not typically launder funds either. Neither do they do "exactly this" as you describe. And "Politicians" do not sit at the negotiating table.

    Costanza was wrong. It is still a lie regardless if you believe it.

  • Brett Bellmore||

    Is Costanza some political scientist? I'm unfamiliar with his work.

    I am familiar with this, for instance:

    Public Sector Prison Unions Are Spending Almost as Much on Campaigns as Private Prison Companies

    And this:

    Forced Union Dues Fund Labor Union Politics

  • Krayt||

    So it is unconstitutional to force you to pay dues that are funneled into donations to particular parties or candidates?

    But in practice this is...problematic to keep the books separate?

  • bernard11||

    I don't see what you are getting at.

    The prison companies spend money on politicians to gain benefits from the government. Should unions not be allowed to do the same?

    Indeed, lots and lots of people, organizations, whatnot, contribute to politicians because they hope to gain some benefit by so doing. Unions are not the only non-altruistic donors, but the other stuff doesn't trouble you, it seems.

  • Careless||

    The prison companies spend money on politicians to gain benefits from the government. Should unions not be allowed to do the same?

    Of course they should be. Private ones, anyway. but we're talking about non-union members funding it

  • damikesc||

    The prison companies spend money on politicians to gain benefits from the government. Should unions not be allowed to do the same?

    Should government employees be able to force me to collect money to allow them to negotiate against me? This is your query?

    No, they have no right to force me to collect money for them to use against me.

  • bernard11||

    Utterly unconvincing, Brett.

    The first article just says the unions are spending money on politics. OK. They are allowed to do that.

    The second link is ultimately to a brief submitted by CEI. Did you read the brief? It's mostly about resolutions passed at the convention. I didn't see much about political contributions or the like.

  • BillyG||

    Many association tests have been rejected as a prerequisite of a government job. Why is this one acceptable?

    And why do you associate use of a bus with employment?

  • BillyG||

    Would it be permissible for the government to prohibit government employee unions entirely? After all, if you wanted to join one you could go someplace else. Or is it that government employment is supposed to be open to all regardless of race & creed.

  • mydisplayname||

    I think Abood was mistaken on several points and underscore that there are certainly policy arguments against public employee unions, many of which were vocalized by (of all people) Franklin Roosevelt [eg: 16-Aug-1937]

    In particular, I would echo the Abood sentiments of Powell, Blackmun, and the Chief Justice: "...we expressly reserved judgment on the constitutional validity of the exclusivity principle in the public sector. I would have thought that 'conflict' in ideas about the way in which government should operate was among the most fundamental values protected by the First Amendment. That the 'Constitution does not require all public acts to be done in town meeting or an assembly of the whole' does not mean that a State or municipality may agree to set public policy on an unlimited range of issues in closed negotiations with 'one category of interested individuals.' Such a commitment by a governmental body to exclude minority viewpoints from the councils of government would violate directly the principle that 'government must afford all points of view an equal opportunity to be heard'."

    In fact, I'd argue that the Constitution prohibits government recognition of any (public or private sector) union which is not periodically -- and frequently -- reauthorized by a _supermajority_ of all those required to pay its fees. Or is a Union nothing more than a governmentally-authorized Knightdom by another name?

  • Careless||

    prohibits? how? Public sector unions are a really terrible idea, but how do you get to a ban on them from the Constitution?

  • Allutz||

    I would get their through the obvious answer of viewpoint discrimination (against the other bargaining units), and the other answer of the establishment clause.

    Could the state of IL compel you to join the Republican party? Catholic Church? Beer of the Month Club? I suppose if you think so, the union question is answered. However, if you don't you must ask many others.

    Is recognizing a union viewpoint discrimination? Yes, obviously it gives one bargaining unit an endorsement by the government. To do so then requires a good reason. But there is no good reason to recognize a union, simply saying, "labor peace" with no evidence is not a good reason. Indeed, the state controls the police, so it also controls labor peace for all work-forces including its own. Indeed, only have Republicans would probably foster labor peace as much or more, same with all Catholics, or Mormons, or Beer Drinkers. So the government doesn't even have a plausible, nonpartisan, reason.

    Onto the second question of the establishment clause, how is a union not a religion? It has a creed, it has meetings, it has a tithe, it has members, it has clergy, it has tax-exempt status, most of the clergy believe in a higher power with no empirical evidence (collective bargaining). What doesn't it have?

  • OtisAH||

    Recognition of an organization's right to represent employees is not an endorsement of that union. It's the government saying "We acknowledge that XYZ International represents these employees," not a statement of support for XYZ International.

  • damikesc||

    Recognition of an organization's right to represent employees is not an endorsement of that union.

    Saying "you cannot work here unless you join this union" is specifically an endorsement of that union.

  • OtisAH||

    No.

  • damikesc||

    You're, as expected, wrong. It's literally no different than saying "Unless you're Catholic, you cannot work here"

    Scratch that, it's worse. Saying "You must be Catholic" would not include "we will force you to tithe as well". This does that,

  • OtisAH||

    No.

  • damikesc||

    Nobody expects you to make a cogent argument. We do appreciate you leaving your intellectual belching to a minimum, though.

  • Allutz||

    @OtisAH

    That is only true if you don't recognize it as the exclusive bargaining unit. Which in this case they have.

  • Brett Bellmore||

    Well, you can't ban the unions from forming, but you certainly can ignore them. Just refuse to negotiate with them, and fire anybody who doesn't show up for work.

  • JeffreyL||

    Then please tell me why we have non-discrimination laws? I totally agree with your statement. And taken to its logical end-point, 99% of all US Government regulations and laws in terms of employment should be stricken from the books.

  • qlangley||

    Generally speaking that is true of employment and alleged "employment rights".

    Courts have, probably rightly, taken the view that government jobs are different. In whole categories of employment - teaching high school, for example - government has a near monopoly, so requiring all teachers to declare personal fealty to a political party, for instance, would impact free speech rights whereas if you have a business employing one person and you set such a daily pledge as a condition of employment this would not so implicate the First.

    Professor Volokh presents a good argument as to why that is not the case in this specific instance but your suggestion that a contract of employment never implicates the First because employment is voluntary arrangements opens the way to governments requiring all teachers to be members of a particular party, for example. Did you mean to suggest that this was constitutional?

  • damikesc||

    If you don't like the fees associated with riding a government bus, or visiting a government park, or crossing a government bridge on the way to work, find another method of transportation, another entertainment, or a different route (or a different job).

    If you don't like the fees associated with union employment (government or private), find another job.

    If you do not like the requirement that you be of a specific sex or race to use government services, then use other services, right? If you don't like being barred from a job due to your race or gender, find another job, right?

  • ||

    NOPE!

    I shouldn't be forced to avoid a job due to a government regulation paying for speech I disagree with.

    That's a clear First Amendment violation, And Eugene is clearly in the wrong here.

  • JesseAz||

    Professor, I just can't get around the fact of taxation through an agency. When politicians tax and spend they are politically accountable. Claiming that paying a third party agency to do this instead of the state avoids this accountability. The politician can say it is them, not us! I have no problem of the state taxing and granting fees to cover negotiations if that is their desire. I do have a problem of politicians hiding this arrangement by moving the issue to solely the employer and employee.

    I also have the problem that we have seen multiple instances of unions including political activities as an agency fee instead of exclusively breaking out the salaries and costs during negotiations. If the law were tied to independent auditors to determine the agency fee it would be less of an issue. Right now unions merely pinkie swear they broke it out correctly.

  • NToJ||

    "The politician can say it is them, not us!"

    Politicians can be held accountable even if they refuse to accept responsibility. Voters aren't obligated to accept politicians' excuses. You demonstrated this point well when you said:

    "Right now unions merely pinkie swear they broke it out correctly."

  • adamscales||

    This is the rare day when I'm unmoved by one EV's analogies.

    EV compares Owen's forced contributions as a taxpayer to Olivia's forced contributions as a public employee. These situations seem to me to implicate entirely different sets of concerns. Owen's remedy is a political one; he can try to persuade the school district to follow a more "enlightened" policy toward labor negotiations. In this way, he is in the same boat as every pro-labor taxpayer in his town. Not only do they share an ideological interest, but they are equally subject to the tax that funds opposition to that interest.

    Olivia might find common-cause with other union-hating citizens, but their interests are more attenuated. Sure, they don't like expensive collective bargaining agreements. But, they aren't directly paying unions to negotiate against their interests. It only looks that way because the unions are funded (compulsorily) by employees who are themselves paid by the public. But there aren't distinct extractions from the union-hating public in general. True, they will pay for the outcome of successful union negotiation - the bargain given effect by the concurrence of the local government. Not the same as paying your opponents to oppose you.

    Maybe this isn't unfair to Olivia. But I'm spinning the analogy out this way to illustrate that Olivia and Owen are not in the same position - their interests in not funding disagreeable bargaining activity are rooted in different spheres.

  • NToJ||

    That may be a distinction to draw between the two analogous situations, but why does the distinction implicate the 1A? Assume a state can do whatever it wants with its employees' salaries (absent a constitutional prohibition). Since there isn't a 1A problem, what's the non-1A problem? Alternatively, why does the fact that it is taken directly out of their pay check as a condition of employment (rather than as a tax) implicate the 1A?

  • adamscales||

    The 1A issue is complicated, and while my instincts favor Abood, I'd like to read EV's brief. That said, the distinction I draw borrows a bit from a principle of Due Process jurisprudence.

    For a century or so, the Supreme Court has distinguished between legislation and adjudication in terms of the individualized process that one is entitled to. A law may deprive you of your property just as surely as an adjudication. Yet, the DPC does not attach to deprivations by legislation. Your "process" of redress is the political one, and absent special circumstances, you haven't been singled out; the law applies equally to all citizens.

    I doubt this doctrine directly speaks to Abood. But it's a useful consideration when examining analogies. There isn't a [constitutional] problem with tax dollars being used to fund government speech (negotiations) with which taxpayers agree. Why? Because they have a remedy at the ballot box. That remedy is a lot more remote for someone who cannot appeal to the interests of fellow taxpayers to organize political opposition to government activity.

    Like I said, this case doesn't pose the issue of whether individualized process applies. I wouldn't stretch the analogy to the Londoner/Bi-Metallic distinction (the early cases that drew the distinction) too far to say it has much to offer on whether one has a first amendment right not to have dues withheld. But, I do think it offers something to explain why I think EV's analogy is not right.

  • jawlz||

    I'll preface this by saying my knowledge of labor law is remarkably limited (and that would be a generous assessment of it at that), so I may be way off track here...

    That said, wouldn't Olivia's remedy be similar to the general public's? The general public can engage in the political processes and practices you describe above. Can't Olivia, though, by virtue of being a dues-paying union member, exercise her own ability (depending on the constitution/governing rules of her union) to vote for or against union leadership and negotiated employment contracts, or even to advocate to her coworkers joining a different union, or even forming a new union altogether?

  • FlameCCT||

    IIUC it depends on the State law(s) regarding unions. If the State mandates union membership and payments to said union if one is to work for the government then that is using the force of government against the individual. If the union is limited to only negotiating salary, benefits, etc.; i.e. restricted in their own "rights" then it would most likely be Constitutional as both the union and individual are restricted. However when you allow political contributions, etc. from the union then you are only restricting the individual not the union and that violates several Constitutional Rights as the government is forcing payment, association, etc.

  • Brett Bellmore||

    "A law may deprive you of your property just as surely as an adjudication. Yet, the DPC does not attach to deprivations by legislation."

    More of a standing excuse, as I understand it. A law of general application victimizes too many people, none of them end up with a "particularized" injury.

  • adamscales||

    Brett, it's firmly a limitation of how the DPC is understood, but the conceptual link to standing (as you suggest) is strong. And the concept of "particularized injury" is what I'm getting at here - Olivia has it, Owen doesn't. Although this doesn't give us the answer, it explains why, in my view, the situation are different and why we *might* be more inclined to find a remedy for Olivia's dissatisfaction than Owen's.

    Relatedly, Jawiz: Yes, Olivia could do that, but she is not in the same boat as her fellow citizens, even the union-hating ones, because only she is having additional money extracted from her paycheck beyond her required tax contributions. So, that's going to severely limit her effectiveness in appealing to fellow taxpayers. To be clear, I don't see a clear doctrinal cash-out here; I am merely explaining why these strands of thought, legitimated by how the DPC (and standing) are understood, complicated EV's analogy here.

  • NToJ||

    First of all, why wouldn't government employees have a remedy at the ballot box? Don't they have the right to vote and appeal to the interests of fellow taxpayers?

    Second, government employees are volunteers. They have even better recourse against government compelled use of their money than taxpayers. Because they can just quit the government job.

  • FlameCCT||

    If the government can compel government employees to pay union/"fair share" dues in order to keep their employment then the government can also compel the unions to not have political activity and restrict them to negotiating and supporting the members only.

    I would note that unions are also volunteers. They have the same recourse against government compelled use of their money. Because they can just quit the government too.

  • NToJ||

    "...then the government can also compel the unions to not have political activity and restrict them to negotiating and supporting the members only."

    What's problematic about that?

  • FlameCCT||

    Nothing about that particular statement is problematic. It is when government only restricts the individual while not restricting the union that is problematic. Either both are restricted or neither are restricted.

    I would also not that unlike the taxpayer voting for/against a politician; the taxpayer does not have any vote for/against the union actions.

  • NToJ||

    The taxpayer has a vote against pro-union legislators.

  • ||

    Because I'm being forced to pay for speech I disagree with. I disagree with speech for collective bargaining.

  • damikesc||

    He's also ignoring that Owen is forced to contribute, partially, to force Olivia to contribute.

    If a union is beneficial, forced membership and forced collection of dues would be unnecessary.

  • Rev. Arthur L. Kirkland||

    If a union is beneficial, forced membership and forced collection of dues would be unnecessary.

    There's the level of insight we have come to expect from a right-wing blog's commenters.

  • damikesc||

    There's the level of insight we have come to expect from a right-wing blog's commenters.

    This service is vital and its members support them. This is why we have to threaten to fire them to make them financially support it. It's free market or something...

  • Rev. Arthur L. Kirkland||

    Why are churches freeloaders? Ostensibly good people who consume services without paying for them. This must confound you to no end.

  • damikesc||

    Why are churches freeloaders? Ostensibly good people who consume services without paying for them. This must confound you to no end.

    You're aware that churches get their money by their parishioners willingly, right? No "Tithe or be fired" stuff, right?

  • NToJ||

    "If a union is beneficial, forced membership and forced collection of dues would be unnecessary."

    You're going to love having children.

  • damikesc||

    Have them. And I do adore it. And I don't expect them to contribute anything.

  • Bob from Ohio||

    Compelling an employee to pay taxes is just different than compelling them to pay a non-government third party. The citizens of the government unit can control [or at least influence] the amount of the taxes and can direct the government officials or remove them from office.

    If the citizens can exercise similar control over the unions, then I guess I can live with it. The unions are not going to like that though.

  • NToJ||

    "Compelling an employee to pay taxes is just different than compelling them to pay a non-government third party."

    It might be different, but at least at the state level, the states are sovereign. Can they not require their employees to purchase uniforms? Can they not choose who the vendors of those uniforms will be?

  • Brett Bellmore||

    Can they not chose that the uniforms will have, in large letters on the backs, "Vote for Jones!"?

    Because the idea that public employee unions aren't political organizations is a sick joke. They are, everywhere, unavoidably, because the other side of the negotiations they engage in is controlled by politicians, and gaining those politicians' favor is the surest way to a favorable outcome in those negotiations.

  • bernard11||

    The idea that government contractors aren't political organizations is a sick joke. They are, everywhere, unavoidably, because the other side of the negotiations they engage in is controlled by politicians, and gaining those politicians' favor is the surest way to a favorable outcome in those negotiations.

  • Brett Bellmore||

    Why, I agree, and I object to compulsory agency fees paid to employers, too.

  • bernard11||

    Well, that's rare.

    Can we push it a bit further?

    Lots of companies are affected by government decisions, even if they do not contract directly with the government. Do you see a problem with them, or for that matter, individuals similarly placed, contributing to politicians?

    If you do, what do you think is the best solution to this problem? Please note that answers like,"reduce the power of government" don't really address the issue, since government will always have some power the exercise of which will affect individuals and businesses.

  • Brett Bellmore||

    Well, you could drop the pretense that everybody in the workforce must inevitably be represented by the same union, and permit competing unions, and allow workers to negotiate on their own behalf.

    The unions say that they must be supported by all the workers, because they negotiate for and provide services to all the workers, and it would be unfair to permit free riders. But it was the unions themselves that demanded that monopoly position, demanded that they represent even non-members.

  • NToJ||

    That might be a 1A issue. From OP:

    "Requiring employees to pay money just doesn't violate the First Amendment (though requiring them to say certain things or actually join certain groups might)."

  • damikesc||

    It might be different, but at least at the state level, the states are sovereign. Can they not require their employees to purchase uniforms? Can they not choose who the vendors of those uniforms will be?

    Can they say that no blacks can work for the government?

    Since, clearly, there are limits, that is what is the argument is about.

  • NToJ||

    "Can they say that no blacks can work for the government?"

    No, because of reverse incorporation of the 14A. Do you think the EPC prohibits state governments or the federal government from requiring their own employees to fund unions through mandatory fees?

    Join the argument.

  • NToJ||

    I should add: The federal government would be prohibited from saying no blacks work for the government by reverse incorporation of the 14A (through 5A). The states would be directly prohibited by the 14A.

  • damikesc||

    No, because of reverse incorporation of the 14A. Do you think the EPC prohibits state governments or the federal government from requiring their own employees to fund unions through mandatory fees?

    So, clearly, states are not sovereign. They have limits. Time to enforce them further to protect the liberty of its citizenry.

  • NToJ||

    Why don't you tell us what constitutional limits you believe prevent states from requiring mandatory dues from government employees' paychecks to fund, for example, collective bargaining?

  • damikesc||

    Why don't you tell us what constitutional limits you believe prevent states from requiring mandatory dues from government employees' paychecks to fund, for example, collective bargaining?

    Freedom to assemble guarantees the right to NOT assemble as much as it protects the right to do so. The government cannot force you to join a private group against your wishes.

  • NToJ||

    Nobody is required to join a union. The "mandatory" funding does not require joining the union. Even if it did, there's nothing "mandatory" about it since the funding is a condition of voluntary employment with the government. If you're complaining about exclusive representation, that was held constitutional in MSBCC v. Knight 465 US 271 (1984). And exclusive representation is not association; nobody is going to confuse the views of a union with the views of all its members.

  • damikesc||

    Nobody is required to join a union.

    Well, unless they want a job in their chosen line of work. Then, yeah, they have to.

    The "mandatory" funding does not require joining the union. Even if it did, there's nothing "mandatory" about it since the funding is a condition of voluntary employment with the government.

    "If you work here, you must donate to the Republican Party. No, it's not mandatory...it's just a condition of voluntary employment here with the government".

    nobody is going to confuse the views of a union with the views of all its members.

    ...yet unions "speak" for their members routinely.

  • NToJ||

    "Well, unless they want a job in their chosen line of work. Then, yeah, they have to."

    No, they aren't. They are required to be represented by the union, not to join it.

    ""If you work here, you must..."

    Even though this isn't speech, do understand that the government may restrict its employees speech without infringing on any liberties the employee has as a private citizen. See Garcetti 547 US 410.

    "...yet unions "speak" for their members routinely."

    Yes, they represent the workers. When they're the exclusive representative entity, they even represent the interests of non-members. And exclusive representation was upheld as constitutional over 30 years ago.

  • jjrzw72||

    I have a hard time seeing a First Amendment objection to a state law requiring the state to pay, say, .25% of bargaining-unit payroll to the collective-bargaining agent (which the state would naturally take into account in setting salary/benefits).

    If that assumption is correct, then the tax/fee distinction seems awfully formalistic to be constitutionally significant.

  • damikesc||

    I have a hard time seeing a First Amendment objection to a state law requiring the state to pay, say, .25% of bargaining-unit payroll to the collective-bargaining agent (which the state would naturally take into account in setting salary/benefits).

    If they said you must give .10% to a church, would you not see an issue?

    Compelled speech is wrong. Period.

  • NToJ||

    "If they said you must give .10% to a church, would you not see an issue?"

    That would be a 1A issue but not a free speech issue.

    "Compelled speech is wrong. Period."

    But we aren't talking about compelled speech. As the OP points out, compelled taxation (income taxes, for instance) aren't speech. So compelled dues for government employees wouldn't be either. Do you have a counterargument?

  • damikesc||

    But we aren't talking about compelled speech. As the OP points out, compelled taxation (income taxes, for instance) aren't speech.

    The money is going to the union's advocacy. Money is fungible, after all. So, every dime taken at the threat of termination is being used to speak against the interest of numerous members.

    It is compelled speech. Just because you like the compelled speech does not change the equation.

  • NToJ||

    What makes you think I like compelled speech? We've having a discussion about the Constitution, not shit that I like.

    But if you think it's compelled speech, confront the taxation example. Do you think taxes are compelled speech too? If so, do you think the 1A prohibits taxation?

  • damikesc||

    But if you think it's compelled speech, confront the taxation example. Do you think taxes are compelled speech too? If so, do you think the 1A prohibits taxation?

    I think issue advocacy should not be permitted to use federal monies, no. No federal monies should go to either party. None should go to the assorted Congressional caucuses, either. Taxes are absolutely compelled and are used for speech. But given that an Amendment was passe to allow them, it is a moot point.

  • NToJ||

    Could you define "issue advocacy"? Virtually any expenditure could be swallowed by that definition.

    Do you think the federal government should be prohibited from spending money to promote freedom of speech and association?

  • damikesc||

    Do you think the federal government should be prohibited from spending money to promote freedom of speech and association?

    It's not an "issue". It is a Constitutional Amendment. Trying to limit it is an issue. Monies should not be used to champion that.

  • Brett Bellmore||

    "There are two sides to collective bargaining -- the employer and the employees."

    I think by stating it this way you've already biased the result, because you're assuming there are only two sides, although there are N individuals, where N is much, much larger than 2.

    So in a sense you've already resolved, before starting out, to shoehorn all the employees together into one "side", even though the employees may have disparate interests.

  • jjrzw72||

    Why can't a state formalize the decision of whom it will listen to, and whom it will ignore, in setting labor policy for its employees?

    The First Amendment doesn't require the state to consider my (1A protected views) on anything, and state employees' speech on workplace concerns isn't even protected by the First Amendment.

  • damikesc||

    I think by stating it this way you've already biased the result, because you're assuming there are only two sides, although there are N individuals, where N is much, much larger than 2.

    Also, with public employees, the two sides aren't there.

    The TAXPAYERS are the employers. But unaccountable bureaucrats make the decisions on wages and they are basically impossible to terminate.

  • Larvell Blanks||

    I believe this is the second time recently where Eugene has taken the position that, if the government can use general tax revenues to pay for something, then it necessarily follows that the government can require individuals to make payments directly to a private entity to fund activities the individual disagrees with. This supposed principle — which is simply asserted, rather than convincingly reasoned — strikes me as wholly non-libertarian, and a vast expanse of government power.

  • Larvell Blanks||

    For one thing, tax policy is a core political matter, and openness about tax rates is important. For another thing, governments are supposed to make choices about expenditures based in part on the tax revenue available to them. Saying "if government can pay for X with tax revenues (after balancing out the competing claims of paying for Y and Z instead), it can just require you to pay a private company directly so it doesn't have to use tax revenues" frustrates the whole tax/expenditure process. There are all sorts of reasons why collecting taxes is different from just ordering a transfer payment, and the professor simply assumes his conclusion, not very persuasively.

  • Sam Gompers||

    A state can force workers to give money to a 3rd party that engages in political speech that they are opposed to and it doesn't violate the the First Amendment, because a state imposes taxes. -- First Amendment Scholar Eugene Posner

  • Rev. Arthur L. Kirkland||

    The state is compelling nothing; a citizen who dislikes a union's activity is free to find another job, just as an investor who dislike's a corporation's activity is free to find another investment.

  • Sam Gompers||

    A citizen who dislikes the state mandated agency fees for Focus On the Family is free to move to another state, just like a citizen who dislikes a union's activity.

  • jdgalt1||

    That's exactly like saying a citizen who doesn't like the government's actions is free to find another country to live in. Bon voyage!

  • OtisAH||

    What you may not understand about the American form of government is that we elect our leaders. If an American objects to how the government operates, they can vote to change the people running the government. You don't have to leave the country. But you can try if you want.

  • damikesc||

    OK, who do we vote out of office who is negotiating with these unions?

    Can you provide the ELECTED officials' name?

    Oh, you cannot, can you?

    It's because they are not elected. They are also impossible to terminate.

  • Rev. Arthur L. Kirkland||

    Your understanding of American government is limited. This diminishes the persuasiveness of your arguments, at least among educated and informed people.

  • NToJ||

    You would vote out the people who mandate the dues.

  • damikesc||

    So, again, which Congressperson mandated the wages.

    Why, none of them. They aren't "responsible". It's that darned agency. They cannot be controlled and all, dontcha know?

  • NToJ||

    The agency is acting under legislation, in this case specifically the Illinois Public Labor Relations Act. People voted for it. People can vote for candidates who support repeal of hte IPLRA.

  • damikesc||

    Which, with their comically union-friendly state Constitution, is unlikely to be permitted.

  • Allutz||

    I think this argument misses a threshold issue of whether the government can even legally acknowledge and recognize a union to bargain with under the 1st Amendment. Doing so is, necessarily, government endorsement of that union's viewpoint.

    Thus, one may say that you have begged the question of whether the collective bargaining itself is even legitimate.

  • OtisAH||

    Recognition is a statement of acknowledgement, not support. Members organize under a union. This organization of members tells the government "We are they and they is us." And the government says, "We accept that you is them and they are you."

  • Allutz||

    The government goes further than recognizing their existence. It also says they are the only bargaining unit allowed to bargain, and in this case goes even further saying you must be part of that single union (to the exclusion of all others) in order to bargain.

  • NToJ||

    "Doing so is, necessarily, government endorsement of that union's viewpoint."

    Government speech is exempt from 1A scrutiny. See Johanns 544 US 550 (2005).

  • NToJ||

    I mean... free speech scrutiny. There could be other constitutional constraints, including within the 1A.

  • damikesc||

    Odd, government endorsement of religious speech runs afoul. Odd.

  • NToJ||

    So the 1A contains five discrete categories of prohibitions on establishment of religion, or interference with the free exercise of same. Those are separate and apart from the 1A's prohibition against interference with freedom of speech.

  • NToJ||

    "on" should be "including"

  • Allutz||

    It is not merely speech as their recognition grants that party rights that it strips from other parties. Endorsement in this context is not a term of art, but rather a general concept. The legal posture would be viewpoint discrimination, and the best analogy establishment of religion.

  • Eidde||

    Depending on the specific jurisdiction, there may not even be "two sides" to a "negotiation" between the government and a government union.

    In some cases it may be a case of a union demanding pay and benefits for its members versus a government which wants to pinch pennies and cut pay and benefits.

    In other cases the union would, in "negotiating," be pushing against an open door, since their members are not only union members but voters and members of the governing coalition's base.

    In that circumstance, who actually represents the public interest?

  • mydisplayname||

    There are seldom two sides to a negotiation between the government and a public-sector union. As Franklin Roosevelt noted, "The employer is the WHOLE PEOPLE, who speak by means of laws enacted by their representatives in Congress. Accordingly, administrative officials and employees alike are governed and guided, and in many instances restricted, by laws which establish policies, procedures, or rules in personnel matters."

    Your are correct in stating that each union member is part of the voting base; therefore, when a public sector union (a collection of voters) disagrees with its employer (the totality of voters), it is nothing more than a nobly-named minority of the whole people are arguing against the un-anointed majority of the whole people.

  • OtisAH||

    The government. The government represents the public interest.

    Btw, by my experience in a public employee union, the only relevant example of the two you provide is the first one. Especially, since the crash. As I'm fond of pointing out, people running for office are far more likely to do so walking across the backs of public employees than they are by being carried by public employees.

  • Brett Bellmore||

    "The government. The government represents the public interest."

    Buchanan won a Nobel prize for economics demonstrating that this isn't really true.

  • OtisAH||

    That's nice. Good for him.

  • Rev. Arthur L. Kirkland||

    I thought the goobers had soured on Nobel prizes . . . the establishment, elitism, strong liberal-libertarian universities, Obama, Alinsky . . .

  • Eidde||

    I don't see anyone named Alinsky on this list.

  • Brett Bellmore||

    It's the peace prize that's totally political. The science prize is still good.

  • MightyMouse||

    Abraham Lincoln will be rolling in his grave if Illinois is allowed to go bankrupt on the bicentennial.

  • Toranth||

    How is this mandatory union fees different than the extreme licensing requirements that states put out? That seems to be objectionable because it interferes with people trying to make a living.
    Here, mandatory union membership (or worse, mandatory fees without membership) interferes with people trying to make a living. They lose a significant chunk of their paycheck, and in return for being "permitted" to do their job - and maybe lose other things as well, if the union doesn't represent that worker's interests.

    And not just political interests - many job restrictions interfere with worker's careers. For example, unions make it difficult fire under-performing employees, or demand pay be given based on seniority rather than performance. For a young worker, these roadblocks can permanently damage their career.

    Sure, it unions may help some workers. Being required to have 200 hours of training will help people wash hair, too. But making it required is a tyrannical interference in what should be the free choices of the employee and his or her employer.

  • Ramer||

    Professor, how does your position square with US v United Food (2001) and Johanns v. Livestock Marketing Ass'n. In United Foods, the court held the USDA could not compel mushroom growers to pay a private entity to promote produce advertisements designed to promote the mushroom industry because it was compelled speech.

    But in Johanns the court distinguished United Food and held USDA could compel cattle ranchers payments to the government who immediately turned the funds over to an industry group that promoted the interests of cattle ranchers.

    The Court held that the transfer of the payment to the government made all the difference. And this makes sense form a compelled speech standpoint because there is no symbolic forced funding of a private organization. In other words, when you pay are forced to pay money to a private entity promoting a cause, you are symbolically supporting that cause. But when you pay those same funds to the gov't and the gov't turns around and gives it to the private entity, on a dollar basis it may not make a difference but symbolically it makes a world of difference. and in compelled speech cases, that is sufficient.

    taxes and those taxes are given to a cause you don't like, you are not symbolicing

  • UVaGrad||

    I'm obviously not Eugene, but I suspect his answer is that United Food was wrongly decided, and that Johanns, while it reached the correct outcome, did so for the wrong reason.

  • Eugene Volokh||

    Indeed. They are all part of the Abood line, which I think was wrong from its inception (and the mess that has arisen in that line helps show Abood's error).

  • mse326||

    Can the government compel everyone to give money to Planned Parenthood just because they can tax everyone and give money to PP itself? That seems wrong.

  • Rev. Arthur L. Kirkland||

    Your argument is that government can't (or shouldn't be permitted to) tax citizens to fund payments to health care providers for services?

  • mse326||

    Nope that isn't what I said at all. I actually explicitly said they can tax citizens and then give money to PP.

  • NToJ||

    Of course the government can do this. The governments in most of the states already do this, as does the federal government. There have been lawsuits. Incredibly, the government can also take your money and give it to textbook publishers.

  • mse326||

    Can you provide examples where the government forces you to directly give money to PP? Read what I said, I acknowledged they can tax citizens and the spend the money on what they want with no issue.

  • NToJ||

    I had interpreted you to be asking whether the government could tax and give to PP. Anyway, I'm not sure what the distinction is. If the government can take your money through taxation and give it to others, I'm not sure what the problem is with them requiring you to stroke a check directly to the tax recipient.

    But if you want an example, the State of Texas has outsourced Texas Accessibility Standards review to private third-parties, and requires you to pay fees to a Registered Accessibility Specialist in order to secure permits for construction.

  • mse326||

    The problem is that under this theory the government can force all tax payers to give to anyone or anything since it can do so itself.

  • Ramer||

    That is the key issue. I think anyone can see that there is a difference between a law requiring someone to give money directly to Planned Parenthood and a law taxing me so that the government can fund Planned Parenthood. There is a First Amendment element in who you hand the money over too.

    Professor, do you also think Wooley v. Maynard was wrongly decided? I think you are giving short shrift to the differences between laws that compel speech and laws that otherwise restrict speech. Compelled speech laws infringe on the right to personal belief, which is I would argue the most fundamental right we have a free humans.

  • Intelligent Mr Toad||

    A better headline for this would be

    "The Two Sides FACES of Collective Bargaining: A Way of Looking at the First Amendment Question in Janus"

  • Eugene Volokh||

    Nice!

  • MightyMouse||

    An insult to janitors everywhere :(

  • Beldar||

    How could you not have titled this, "The Two Faces of Collective Bargaining," Prof. Volohk?

  • Beldar||

    Well, now I blush (with one of my faces). Moral: Refresh browser, the indication that you're the first commenter here is a false one.

  • MightyMouse||

    Question; if there is only 10 power rangers in the state, and the state needs all 10 (by their forces combined) to defend the state, but 1 of the rangers says he will not cooperate unless all the other power rangers donate half their paychecks to planned parenthood. Is it constitutional for the state to require all power rangers to make this unwilling payment on condition of employment?

  • Union Thug||

    Doesn't the government compel people who want to practice law to join and pay dues to the Bar Association? And doesn't the Bar Association (at least in NY) lobby politicians on matters of public concern that individual lawyers may or may not agree with? If so, how is that different from the case of a public employee being forced to fund collective bargaining speech that he or she disagrees with?

  • Eugene Volokh||

    The Court concluded that it was much the same -- see Keller v. State Bar (1990).

  • Ghost of Patrick Henry||

    The better analogy is not mandatory State Bars, which Keller held perform a quasi governmental function, but to the American Bar Association, which is an advocacy organization, like unions.

    A lawyer cannot be compelled to join the ABA. No court has ever held that they can be so forced.

    Freedom of speech and association are keys to liberty. Coercion should be resisted unless it is absolutely necessary.

    Professor Volokh has merely "grown" in office, i.e., taken on the leftist thought processes of his peers and his fellow conspirators.

  • Union Thug||

    So if the state gave the unions a quasi governmental function to perform then the 1st amendment issue goes away?

  • jdgalt1||

    Let's get real here. The truth of the matter is that "agency fees" have little or nothing, ever, to do with the costs of bargaining; they are nearly all spent on political campaigns chosen by the union (or its parent entity such as SEIU or AFL-CIO). And spending your money, or not, on a political campaign is absolutely an individual, not group, right. (For that matter, even if the "agency fees" were spent only on bargaining costs, the same logic holds true because entering into a contract, or not, is also absolutely an individual, not group, right.)

    The only honorable thing for the Supreme Court to do in this situation, both for public and private employers, is to eliminate the ability of unions to insist on representing entire "bargaining units." Make them represent only those individuals who choose to become paid members of the union, and only for so long as they choose to continue to pay dues. And while we're at it, let's also take away unions' exemptions from laws such as extortion, so they can no longer bully anyone iinto joining.

    Until these changes happen it is simply dishonest to regard unions as anything but gangsters.

  • MightyMouse||

    In essence, the ruling would make a union security clause illegal, i.e. a national right to work law. Sounds like legislating from the bench, no?

  • damikesc||

    In essence, the ruling would make a union security clause illegal, i.e. a national right to work law. Sounds like legislating from the bench, no?

    And the problem with a Right to Work law is...?

    People having too much freedom to choose to join a union or not?

  • Rev. Arthur L. Kirkland||

    Unions are gangsters.

    Conservatives are poorly educated, intolerant people who would have been rooting for Frick and the Pinkertons at Homestead.

    Where is the hope for America?

  • Rev. Arthur L. Kirkland||

    Unions are gangsters.

    Conservatives are poorly educated, intolerant people who would have been rooting for Frick and the Pinkertons at Homestead.

    Where is the hope for America?

  • Rev. Arthur L. Kirkland||

    Unions are gangsters.

    Conservatives are poorly educated, intolerant people who would have been rooting for Frick and the Pinkertons at Homestead.

    Where is the hope for America?

  • Brett Bellmore||

    Legally they're gangsters. They've even got a court granted exemption from racketeering laws, because the Supreme court thought violence was too central to unions' negotiating tactics to be outlawed.

  • damikesc||

    Showing that laws being for the guys the elite don't like is not a new phenomenon in the US.

  • Rev. Arthur L. Kirkland||

    Guys like you call others "the elite" because even you, at some level, recognize that you are the lessers, making them the betters, or the "elite."

    Choose reason. Education. Tolerance. Science. Progress. Modernity. Inclusivity.

    Otherwise, you might become a right-winger who cowers behind faux libertarianism.

  • damikesc||

    Guys like you call others "the elite" because even you, at some level, recognize that you are the lessers, making them the betters, or the "elite."

    You don't get sarcasm. Or intellect. Or, honestly, the affection of any living creature. I'm not sure what you bring to the world outside of the moderately efficient exchange of O2 to CO2.

  • OtisAH||

    "The truth of the matter is that "agency fees" have little or nothing, ever, to do with the costs of bargaining; they are nearly all spent on political campaigns chosen by the union (or its parent entity such as SEIU or AFL-CIO)."

    So your theory is that collective bargaining and other non-political representation costs nothing?

  • damikesc||

    Precious little. Non-political representation costs precious little. It is why public unions, year after year, are the biggest political contributors.

  • OtisAH||

    No.

  • damikesc||

    Aren't you precious? Bless your heart.

  • OtisAH||

    No.

  • Brett Bellmore||

    For public employee unions, collective bargaining IS political. They rationally expend the money persuading politicians to give them more money.

  • Union Thug||

    I work for a public employee union. We contribute as much as we possibly can to politicians - for the same reason every other group does so. All that money comes from voluntary dues deductions by members who want their money used this way. Most members don't. Those that do fill out a separate form and do so voluntarily - we have no power to reward or penalize anyone. Some give pennies. Some give hundreds. Most give nothing.

    0% of an agency fee payers' dues go to those political contributions. Zero.

    In addition to political contributions, we have some employees whose job entails encouraging our members to vote for our endorsed candidates. Agency fee payers have the option of demanding a refund of that portion of their dues that are used this way. Most don't.

    The remainder of the agency fee payers' dues are used to negotiate contracts, enforce contracts through arbitration, defend employees in disciplinary matters, advocate for better non contractual working conditions, professional development, hand holding, etc. Those dues are also used to lobby the governor, state agencies and the legislature for laws and regulations that benefit our membership. This category makes up probably 80% of the organization's budget.

  • BrianOB||

    The fundamental flaw in this argument, as I see it, is that Owen and Olivia are in different relationships with regard to the school board and the union.
    As a taxpayer, Owen is the employer of the school board and while he probably feels he has little control over them, he and other taxpayers can exercise their power to remove board members and otherwise influence the board's policies and operations.
    Olivia has no comparable exercise of control over the union. While some unions are bottom-up organizations where the membership sets policy, even they don't extend that option to people who are subject to their collective bargaining but aren't members. Olivia isn't the employer or the employee of the union, she's just someone who's forced to pay dues if she wants to work for the school.

  • David M.||

    This is basically the same argument the recent guest on Slate's Amicus podcast made, and it's infuriatingly bad. Union fees are not the same as taxes. Taxes can't be explicitly and legitimately used to support a particular political candidate or party to the exclusion of the others, union dues can. Money is speech, and if you are using my money, acquired by force, to support a political candidate I disagree, it's as bad as compelled speech. The first amendment problem only goes away if unions are explicitly prohibited from engaging in any kind of political activity (support or endorsement of elected individuals or parties). I'm disappointed, Volokh is usually much smarter than this

  • loki13||

    I happen to agree with Prof. V., and I always appreciate it when someone follows their principles to a position that they may not happen to ideologically agree with, but that said-

    In the end, it doesn't matter. Pretty, pretty sure there are five votes for the contrary position, and that's what counts.

    Also- "I'm disappointed, Volokh is usually much smarter than this[.]" You might want to consider the concept that there are people that try to follow their legal principles even when the final results don't match their ideological preferences (are yours). There are many things that I don't agree with, but are just fine under the constitution. Don't forget- just because something is constitutional doesn't mean it happens; you can always change the law (in your state, for example).

  • swood1000||

    If the Court held that the First Amendment prohibited government speech as long as the government taxes citizens, then much of the traditional activity of government would be prohibited, so the First Amendment could not have intended that.

    But private organizations are not the government. For there to be a government there must be taxes. But while we need a government in order for society to function properly there is no such need for a labor union. Would a law requiring all workers to donate to the Democratic Party also pose no First Amendment problems?

    Furthermore, not only is government speech not political advocacy, but a taxpayer's share of taxes attributable to specific government speech are miniscule compared to the employee's share of the amount being spent by the union on political advocacy.

  • Ghost of Patrick Henry||

    I am stunned that this argument is even being made by such an august scholar. The government, when it operates as the government is funded by taxes, which must be imposed equally (at least in theory) on all taxpayers. The fee paid to Manny is the same as the fee paid to the Superintendent. It is compensation from taxpayer funds for government operations. This is the same as paying for the Highways Superintendent to put a contract out for bid.

    However, the act of forcing the employees of the government to pay AFTER TAX funds to their union which they then use to advocate for, let's say, abortion on demand or the abolition of the United States by force of arms, is NOT a governmental act paid for by taxpayers, it is viewpoint coercion, i.e., forced speech in support of public policy positions which the individual person choses not to support.

    So, you have publically admitted that you cannot distinguish between these two situations? Taxes going to pay for a war vs. coerced payments to either the VFW or the Anti-war agitators.

    As I mentioned weeks ago, this is a decidedly anti-Libertarian way of thinking. Libertarians believe, above all, that it is the individual who is sovereign and that coercion should be kept to the minimum needed to maintain the peace and to protect individual rights.

    If unions are so beneficial to workers, then they should not need any coercion. Workers would choose them voluntarily, you know, in the exercise of their libertarian freedom of action.

  • NToJ||

    "...which must be imposed equally (at least in theory) on all taxpayers."

    I've got some bad news.

  • loki13||

    "If unions are so beneficial to workers, then they should not need any coercion."

    I like high-speed internet and a deluxe cable TV package.

    Now, imagine if I could get all that, each month, for free, just because some of my neighbors bought it. Maybe, because I am awesome and ethical and don't believe in bogus "libertarian freedom of action" argument, I might the provider out of the goodness of my heart. But, more likely, I would sit on my behind and reap the benefits of all that free stuff knowing that I don't have to pay for it.

    Same here. Unions are ... coerced ... into bargaining for the benefits of workers that aren't part of the union. Unions are ... coerced ... into representing those same people when they have issues with management. And unions are LIABLE under state coercion (otherwise known as the duty of fair representation) if they don't give it everything they've got for those individuals- did you know, for example, that if a union shirks its duties with regards to a non-union member, and that person is terminated, the union is COERCED into paying that person's wages for (and I wish I was making this up) up to their natural working like, less offsets?

    Anyway, I am not stunned you are making this argument.

  • Brett Bellmore||

    " Unions are ... coerced ... into bargaining for the benefits of workers that aren't part of the union."

    Get serious here. Unions insisted on that coercion. Demanded it. They demanded a monopoly, and then dare to call the people who didn't want their product "freeloaders".

    Propose to take that "coercion" away, end it, and see who complains loudest.

  • loki13||

    "Get serious here."

    I am perfectly serious. Freeloader, like you Brett, fail to see any benefits and prefer to live off of other people's work, while constantly decrying the so-called "benefits" others get.

  • WJack||

    The money comes from net tax payers who are paying the net tax consumers, i.e., government employees, union or not. No net tax payer seems to be involved . . . if not, the whole procedure is a charade.

  • Lee Moore||

    Presumably we would all arrive in pretty much the same place if the government paid its employees a little bit less and just handed a lump of money to the union to sit on the other side of the negotiating table. So this is a "form" thing. What difference does it make that the money becomes the employees' money, and then is whisked away to the union ? It's not a tax. So it must be a "taking" of some kind. It's not one of those complicated regulatory takings, as the amount of the taking is a specific monetary amount. So the question is whether it's a taking that requires compensation under the 5th Amendment. Since the claimed justification is that it benefits the employer to have one union to negotiate with, then for a public sector employer, the taking would seem to be for public use.

    So if EV is right, the plaintiffs may have picked the wrong amendment.

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