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Symposium: A ruling for plaintiffs would revive Lochner

Catherine Fisk is a professor of law at the U.C. Berkeley School of Law.

Janus v. American Federation of State, County, and Municipal Employees, Council 31 presents a First Amendment challenge to all Illinois public-sector labor-relations statutes and all Illinois government labor contracts that require union-represented employees to pay a fee to the union for services that the union is required by law to provide. Mark Janus asks the Supreme Court to overrule its 1977 decision in Abood v. Detroit Board of Education, and invalidate hundreds of state and local labor laws and thousands of contracts.

Federal law and the laws of almost every state and local government that allows collective bargaining provide that a union chosen by a majority of employees represents all employees. This structure was modeled on political democracy. Like elected governments, the elected union has significant legal responsibility to develop and implement rules governing the workplace. A union must be able to charge those whom it represents for the cost of creating and administering the system of laws governing the community. In the political sphere those payments are known as taxes; in the unionized workplace they are known as dues (for those who choose to join the union) or agency fees or fair-share fees (for those who don’t). Unlike elected political leaders, however, unions have a duty to represent all fairly; elected union representatives cannot discriminate against those who oppose or choose not to join the union.

Janus argues that nobody should have to pay fees because paying the fee is speech, or at least it is a subsidy for speech, and the government cannot compel speech.

We know where this ends: If payment of taxes is voluntary, people won’t pay taxes and government will collapse. And when democratic governance collapses, what is left is rule by whoever happens to have the most power. That’s one reason business groups support the attack on union fees: They want to get rid of unions so that employers can impose workplace rules without organized opposition. Another reason business groups oppose fair-share fees is that they want to shift the entire cost of providing a collective good to union supporters so that unions and their members will have less money to spend on political activity. In that respect, the analogy between union fees and the current debate over taxes is even clearer. The goal is to weaken the institutions that support a more equitable distribution of wealth, and also to weaken labor unions because they support Democrats.

The political implications of this case are huge. But the doctrinal implications are significant too. Even those who dislike unions generally, or government employee unions specifically, should be troubled by four implications for First Amendment doctrine if the Supreme Court declares agency fees unconstitutional.

First, this case asks the Supreme Court to hold unconstitutional a requirement to pay money to an organization for services the organization is required by law to provide to the fee-payer. As Justice Antonin Scalia explained in Lehnert v. Ferris Faculty Association, in which the court unanimously upheld a Michigan law requiring fair-share fees, “where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost.” In 2014, in Harris v. Quinn, the court invalidated an Illinois law providing for fair-share fees for home-care workers because, in the court’s judgment, that particular legal regime gave the union insufficient responsibilities in contract negotiation or administration to warrant charging nonmembers. Justice Samuel Alito’s opinion attempted to minimize the significance of the statutory requirement of fair representation, explaining that “private speech often furthers the interests of nonspeakers, and that does not alone empower the state to compel the speech to be paid for.” But what Scalia emphasized in Lehnert is that nonpaying members of the bargaining unit “are free riders whom the law requires the union to carry–indeed, requires the union to go out of its way to benefit, even at the expense of its other interests.” Thus the court has upheld compulsory bar dues for lawyers because state bars use dues to administer the admission and discipline system (Keller v. State Bar of California), and compulsory student-activity fees because public universities use them to fund all student activities (Board of Regents v. Southworth). The court in Harris distinguished bar dues and student fees on the grounds that the state has a greater interest in requiring lawyers and students to fund the admission, discipline and student activity systems than did Illinois in requiring home-care workers to fund the negotiation and administration of a contract. But given the importance to state and local governments of managing their workforces, it would be a shocking departure from federalism principles for the Supreme Court to decide that governments have no interest in requiring cost-sharing of the elaborate personnel processes that public employment often entails.

Second, if it violates the First Amendment right of a nonmember to be compelled to pay fees to the union that is required by law to provide representation services, it equally violates the rights of the union and its members to require them to use their money to speak on behalf of the nonpayer. But neither the dissenting fee payer nor the union should have a First Amendment claim. Contractually required fees for union representational services are no more a compelled subsidy for expressive activity than is compulsory payment of insurance premiums or utility bills — both of which the government requires and both of which fund speech and other activities. The heart of the argument that unions violate employees’ rights when they spend fees and dues on expressive activity is that unions, unlike insurance companies or public utilities, spend the employees’ money rather than the union’s. This is fundamentally false. Like insurance companies, homeowners’ associations and utility companies, unions pool money contributed by many stakeholders and spend it to provide services and to engage in expressive activity. When they do so, they advance the interests of the entity and its stakeholders who support the action, and, sometimes, they thwart the interests of stakeholders who oppose it. But a full First Amendment analysis of the issues must consider the interests of the entity and its members as well as the interests of those who contribute to the union but oppose the action in question.

Third, if the Supreme Court accepts the argument that paying fees violates the First Amendment rights of government employees, it will be the only case in which the court has held there is a First Amendment right to refuse to pay money to support speech that is not itself protected by the First Amendment. In all the court’s compelled-speech cases, including its compelled-fee cases, the speech that was being compelled was protected by the First Amendment. In West Virginia Board of Education v. Barnette, the original compelled-speech case, the right to refuse to salute the flag existed because a flag salute is First Amendment speech. But government employees have no First Amendment rights to engage in speech on the job. In Garcetti v. Ceballos, the court held that a deputy district attorney had no First Amendment protection for writing a memo to his supervisor raising concerns about the use of possibly false police testimony in a criminal case. In Borough of Duryea v. Guarnieri, the court held that a police chief had no First Amendment protection for complaints he made about oversight of how he did his job. The First Amendment, as the court currently construes it, does not protect public employees’ requests for better pay or benefits, for job assignments to be made on the basis of seniority or merit rather than favoritism, or for freedom from retaliation for complaining about working conditions – the basic stuff of government-employee union contracts. The court cannot, consistent with its First Amendment jurisprudence, hold that there is a First Amendment right to refuse to pay a fee to support speech when the underlying speech – requesting better working conditions – is not protected by the First Amendment.

Finally, if it violates the First Amendment to require an employee to pay a fee allowing the union that represents her to engage in speech on her behalf, might it not also violate the First Amendment to appoint the union to represent her at all? Janus argues that the First Amendment protects the right of an individual employee to refuse to pay for union representation; the next case will argue that the First Amendment protects the right of an individual employee to refuse to be represented. For example, last year in  D’Agostino v. Baker, the U.S. Court of Appeals for the 1st Circuit rejected a First Amendment speech and freedom-of-association challenge to the exclusive-representation provision of Massachusetts law. Such cases just repackage under the First Amendment the substantive-due-process arguments made against the National Labor Relations Act in the 1930s. As the employer contended in NLRB v. Jones & Laughlin Steel Corp., in 1937, “[f]rom the standpoint of the employee, the law has recognized that he should not be forced into a relationship which may be distasteful to him.” The court rejected that argument because regulating the workplace inevitably puts employers and employees into relationships on terms that they might not prefer. The Lochner-era invalidation of labor laws has been deplored for 80 years as judicial activism, politicians in robes substituting their deregulatory views of labor policy for those of the elected representatives. The court cannot rule for the plaintiffs in Janus without reviving under the First Amendment the very judicial activism that it wisely discarded in 1937.

Recommended Citation: Catherine Fisk, Symposium: A ruling for plaintiffs would revive Lochner, SCOTUSblog (Dec. 19, 2017, 2:17 PM),