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Compelled Subsidies and the First Amendment

Why both the dissent and majority in Janus were wrong, and what the next lawsuits may look like.

Blogmaster Eugene Volokh and I have an article out now in the Supreme Court edition of the Harvard Law Review: Compelled Subsidies and the First Amendment, a comment on the Supreme Court's decision in Janus v. AFSCME which we've blogged about here extensively this summer.

In the article we argue that both the dissent and the majority opinion were wrong, but about different things. The dissent was wrong to think that public sector unionism justifies a substantial burden on First Amendment activity; but the majority opinion was wrong to think that there was any First Amendment burden in the first place. We also discuss the implications of Janus, arguing that it will imperil some other similar compelled funding regimes and may make unions retroactively liable for agency fees collected to date.

Harvard has also published two responses to our article, one by Aaron Tang and Fred Smith, and one by Erwin Chemerinsky and Catherine Fisk. Interestingly, both pieces take aim only at our discussion of the implications, especially the warning about retroactive liability. (Chemerinsky and Fisk also write a little bit about implications for other regimes, taking a more modest reading of Janus than we do.)

As for the question of retroactive liability, I think our respective pieces point to all of the important cases, so interested readers may have to make up their own minds -- and indeed, federal courts across the country will be making up their minds as these lawsuits progress, and I may find time to write more about them as that happens. But I should stress in advance that our warning about retroactive liability does not imply that these lawsuits are clear winners, or even necessarily that these lawsuits should be winners in a perfect world. Still, I continue to believe that they are not clear losers, either. And if one imagines that unsettled questions of retroactive liability might make it to the Supreme Court in the next few years, I do not think that agency fee cases are going to be the vehicle most likely to appeal to the Court's sympathies.

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  • ravenshrike||

    So long as closed shops, especially as regards to public sector jobs are a thing, mandatory funding for a union is by definition compelled speech. Now, if you remove public sector unions as closed shops, there's some arguable wiggle room and much more if you eliminate them entirely, but until then no.

  • Stephen Lathrop||

    Apparently you don't know what a closed shop is. It generally means you can't get hired unless you are already a member of a union, and for that, you have to stay a member at all times. Does that describe any public sector job? I doubt it.

  • Kazinski||

    "It generally means"

    It also means being forced to agree to join a union in order to keep a job.

    Some people, and the supreme court find that is coercive speech.

    It's kind of interesting that many of the same people that think Citizens United allowing mostly unfettered voluntary speech is a threat to democracy, but the government requiring involuntary contributions from government workers is a bedrock part of public discourse.

  • Rev. Arthur L. Kirkland||

    Nobody is compelling anything. Choose another job if you don't like the working conditions.

    Similarly, shareholders should not be able to "opt out" of paying for corporate conduct. Choose another investment if you don't like the company's conduct.

    Quit whining, clingers.

  • mad_kalak||

    I just wanted to leave a comment that says "weaponized free speech" so I can be the first on the thread to use the term, before someone else uses it un-ironically that is.

  • Dick King||

    See https://bit.ly/2Fde6Hk .

    It looks like agency fee money is in fact used to further the interests of one of the nation's two major political parties, with fairly substantial effect. An argument that agency fees are not forced speech rings hollow, given that there appears to be a substantial effect on the eardrums upon which this forced speech falls. If there were no forced speech, people wouldn't be hearing it and affecting their voting behavior.

    -dk

  • Stephen Lathrop||

    Why would you put that link in, given that it doesn't address your claim? Or do I misunderstand? Can you explain?

  • ||

    "The better view, we think, is that requiring people only to pay money, whether to private organizations or to the government, is not a First Amendment problem at all. "

    It seems to me that your argument speaks in the voice of Roberts from his ACA approbation: 'this is a tax and you don't get to complain about what taxes get used for as a first amendment matter. government essentially presupposes your acquiesence in the consensus of the rule of law and it is effectively self negating to say that you only have to follow the laws you agree with'.

    I think that is true as far as it goes, but i think you mistake whether this is a tax or effectively a bill of attainder. the way you know a tax is that it is paid to the government and by its general applicability. and you don't get to withhold the tax because you don't like some (or all) of what the government spends it on. It just seems fundamentally wrong to present this as a tax, even moreso than with the ACA because it is not generally applicable to everyone who works, but only to a modest number who work under covered circumstances. And most obviously it does not go to government. I think here , to crib from non-delegation lexicon, the government has the right to impose taxes not to impose taxers.

  • ||

    I do think this looks different if the government uses tax money to cover the cost of labor side of negotiations to some extent because that is a present expenditure each budget cycle. Folks can vote against officials on the notion that this is poor policy (or for officials because they think efficient operation of government requires the labor peace accomplished by collective representation of government employees). But to say that such a system could be implemented does not make the present system free of first amendment concerns.

    If one tried to look at this from the prism of closed shops on the private side, one thinks the employer could choose to accept a closed shop for convenience but should we recognize the power of a union to agree on behalf of workers other than those who voluntarily support the union, so its a circular problem. The whole idea of making a labor force into a subpolity so if 51% of your coworkers choose a certain representation you are stuck with it seems fundamentally wrong to me. Your approach is to effectively suggest that the court has skipped a first order issue. i would say that accepting forced unionization is the issue and not the question of whether the dues are simply a tax and not speech.

    Indeed, the crowning irony of your argument is to say that compelled union fees must be OK because lawyers have to pay the bar association. That falsely assumes this arrangement is OK!

  • mse326||

    Baude and Volokh's position intuitively seems wrong, but then I think about car insurance. The government mandates you buy insurance to drive and the insurance company can and does use that money for lobbying purposes. I don't think anyone has ever thought of that as a 1st Amendment violation.

    I think the position is one that is probably right but doesn't sit well.

  • mse326||

    At the same time I have a hard time squaring this with say McCutheon. If compelling the giving of money isn't compelling speech that means that giving of money isn't speech. But then how does giving money to a political campaign implicate the 1st Amendment? Perhaps it's the same thing. It isn't speech and was wrongly decided and just doesn't sit right. But at least based on caselaw the view seems foreclosed.

  • Gunstar1||

    The difference is, and this is one that Baude and Volokh have not ever addressed, in all other compelled payment laws, it was not speech you were being forced to pay for. In this case it is.

    So paying for a service, then the company uses those funds to say what the company thinks, has nothing to do with you.

    Here, you are paying someone to speak for you, and a law says they are the only ones allowed to speak.

    They never directly address this. They simply say car insurace nor taxes are 1st amendment issues, then somehow directly paying for the service of someone to speak on your behalf is not compelled speech and also not a 1st amendment issue.

  • Kazinski||

    You have a choice of dozens of car insurance companies, how many labor unions are they allowing you to choose from?

  • ME2R||

    Your argument, in a nutshell, seems to be that the government compels taxes to support many causes one may not choose to support. Perhaps we should look closer at those "causes." Has the government, in its support of an infinite number of causes, greatly overreached. Maybe we should get back to the core and "general welfare" be viewed more narrowly.

    Additionally, since educational institutions, in particular, are so partisan in the employment and their speech, perhaps we should look as to whether Janus is applicable.

  • rsteinmetz||

    In many cities the government is dominated by Democrats with little opposition One way to look at agency fees is as a kickback or at least forced donation to the Democratic Party.

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