Symposium: Hijacked riders, not free riders

Andrée Sophia Blumstein is the solicitor general of Tennessee, which joined an amicus brief with 19 other states in support of the challenger in Janus v. AFSCME.

The petitioner’s name in Janus v. American Federation of State, County, and Municipal Employees, Council 31 may prove to be telling. Janus is the ancient Roman deity of beginnings and transitions; the Supreme Court’s decision in this case could bring about a significant shift in public-sector labor law.

Mark Janus is a child-support specialist employed by Illinois. The American Federation of State, County and Municipal Employees is the exclusive representative empowered to negotiate with Illinois about wages, hours and conditions of employment for Janus’ bargaining unit. Janus has chosen not to join this public-sector union. He objects to certain positions the union advocates and believes the union’s demands are contrary to the interests of the citizens of Illinois, particularly because the union is not sensitive to the state’s financial difficulties. Yet, to keep his job, Janus is forced by Illinois law to pay mandatory agency fees to AFSCME — fees that go to fund the advocacy he opposes. The amount of the fees is set solely by the union and may be as high as union dues. Janus is not alone: Approximately five million public employees in about 22 states pay mandatory agency fees, as a condition of employment, to a government-appointed exclusive representative whose agenda may be anathema to them.

Janus has challenged the constitutionality of the mandatory agency fees. He argues that public-sector mandatory agency fees are nothing but a compelled-speech regime that violates the First Amendment because it forces government employees to associate with, and subsidize speech by, a third party whom they do not support.

The First Amendment creates a marketplace in which ideas about political, economic and social issues may compete freely for public acceptance without government interference, as the Supreme Court reaffirmed in 2012, in Knox v. Service Employees International Union, Local 1000. Two years later, in Harris v. Quinn, the court declared it a “bedrock principle” of the First Amendment that, “except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.” So, for example, in Rutan v. Republican Party of Illinois, the court held that a state may not compel a public school teacher to contribute to or be member of a political party as a condition of her employment.

As Justice Lewis Powell observed in a 1977 concurring opinion in Abood v. Detroit Board of Education, because the goal of a public-sector union is to conform public decision-making to its views and interests, “a public-sector union is indistinguishable from the traditional political party.”  Indeed, then-Justice William Rehnquist, concurring separately in Abood, could not fathom a “constitutional distinction” between a government employer requiring that, as a condition of employment, a public employee be a Democrat or a Republican and the requirement that a public employee contribute to the collective bargaining costs incurred by a union. It should follow that requiring government workers like Mark Janus to fund a political organization like AFSCME as a condition of employment violates the First Amendment.

But to reach that result, the Supreme Court will have to overrule Abood. Paradoxically, Abood upheld the very thing it expressly said is not permitted: government-compelled subsidy of the speech of a third party for political or ideological causes. Abood recognized that mandatory agency fees impinge on employees’ First Amendment interests, but, by side-stepping strict or exacting First Amendment scrutiny to justify the impingement, the court was able to view compelled payment to an exclusive representative to bargain with the government about wages, hours and conditions of employment as neither political nor ideological.

When it comes to private-sector union activity, one may be able to distinguish between political and nonpolitical advocacy, but that distinction evaporates in the public-sector context. The collective-bargaining activities of public-sector unions necessarily involve matters of public interest. The terms and conditions of public employment are intrinsically political; they are matters of public concern because the public pays the bill. And money allocated to higher wages, for example, affects not only the taxpayers’ pocketbooks but also other budget priorities and policy choices, such as the scope or level of public services. The positions unions take on these matters of public policy can have serious consequences for state and local budgets — consequences as dire as bankruptcy, as in the case of Detroit.

Thus, when a union bargains with a public employer about salaries, health-care benefits, triggers for promotion, merit-based-versus-seniority-based raises, teacher tenure, classroom size, pensions or leave policies, the union is negotiating about core political issues — issues consecrated to the First Amendment marketplace of ideas. A nonmember employee may believe that merit pay is the only way to ensure quality public service and may adamantly oppose a lock-step promotion system. But that employee is then compelled, under Abood, to pay the union to bargain against his interests when the union advocates for lock-step promotions and raises.

Though an employee may disagree with a union’s decisions, he is bound by them. The union has negotiating authority to the exclusion of all competing organizations and even to the exclusion of the individual nonmember employee. This in effect gives the union legislative power over the employee.

Even the Abood majority recognized the “truism” that the activities of public-sector unions are political because the unions exist to influence governmental policy-making. Bargaining with the government necessarily involves bargaining about the use of public resources and the propriety of public policies. Private-sector negotiations are controlled by the normal competitive forces at work in the free market, such as supply and demand and financial self-interest. But public-sector bargaining seldom knows such constraints. The public employer is largely immune from competition and is motivated to accede to the demands of the public-sector union because union members are also the employer’s constituents and power base.

In short, negotiations about wages, benefits, pensions, hours and other conditions of government employment are inherently political and ideological. They require public-policy judgments about how best to allocate scarce public resources. The line drawn in Abood is incompatible with this reality, and requiring public employees to fund a public-sector union’s collective bargaining activities does in fact compel speech on matters of public interest in violation of the First Amendment.

Proponents of the outcome in Abood argue that mandatory agency fees are justified, on the theory that nonmembers should not be “free riders.” Because the efforts of an exclusive representative will “benefit” even nonmembers, those beneficiaries should pay their “fair share” to compensate the union for its efforts. But this theory ignores the fact that public-sector unions are already well-compensated by the enormous power and concomitant advantages they get from choosing to become exclusive bargaining representatives. And it ignores the disproportionate toll on the free-speech rights of the nonmembers.

The nonmembers are not free riders; they are hijacked riders. Mandatory agency fees compel nonmembers’ union association.  Mandatory agency fees also compel those who pay them to support particular speech. The nonmembers are forced to support a government-sanctioned advocacy organization to lobby the government and to influence public policies on behalf of a special-interest group from which they have purposefully disassociated themselves.

Speech on public issues has traditionally been entitled to special protection under the First Amendment because, more than self-expression, it is essential to self-government, as the court held in 2011 in Snyder v. Phelps. Curtailment of political speech should be subject to strict scrutiny: It is justified only in the rarest of circumstances and only when it furthers a compelling government interest and is narrowly tailored to achieve that goal. Abood did not provide that special protection.

This case presents the same issue on which the Supreme Court split 4-4 in Friedrichs v. California Teachers Association after Justice Antonin Scalia’s death. Crystal balls foretell that Justice Neil Gorsuch will now supply the fifth vote to overrule Abood.  The decision is certain to be of historic consequence for labor law, and the constitutional issues are extremely important.

If the court overrules Abood, public employees will no longer be required to pay mandatory agency fees to unions for their collective-bargaining activities. That result would be entirely consistent with the general public policy of the right-to-work states that already prohibit compulsory agency fees. It would also bring about a significant change in the other states. Without their Abood safe harbor, public-sector unions could lose a significant source of funding.

On the other hand, the change Janus seeks could be a positive transition for public-sector unions. Overturning Abood will push them to attract more members, which should incentivize them to embrace policies and advocate for agendas that better reflect the actual interests — political and personal — of the potential new members.

Whether or not the court overrules Abood, the decision will add significantly to compelled-speech jurisprudence. We can expect some interplay with the other compelled-speech cases granted this term, Masterpiece Cakeshop v. Colorado Civil Rights Commission and National Institute of Family and Life Advocates v. Becerra. The court has yet to settle on a comprehensive and comprehensible compelled-speech doctrine, as it has done in cases involving suppression of speech. Janus offers a salutary opportunity for contouring such a compelled-speech doctrine, and, especially, for determining the standard(s) of scrutiny applicable in compelled-speech cases.