Breaking News

Union fees, bar association dues, and the funding of political speech

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, First Amendment challenges to the use of membership fees by a union or bar association to engage in political speech, as well as the definition of a state “tax” under the federal Tax Injunction Act.

Two petitions ask the justices to consider the First Amendment implications of professional fees that are used for political and ideological speech. In Baisley v. International Association of Machinists and Aerospace Workers, an airline employee challenges a fee levied by an airline workers’ union even though he is not a union member. Under the federal Railway Labor Act, the employee’s exclusive bargaining representative is the International Association of Machinists and Aerospace Workers. The employee alleges that the union contracted with his employer, United Airlines, to compel employees to pay fees in an amount equal to union dues. He further alleges that the fees are used to fund the union’s ideological and political activities unless a non-member affirmatively opts out of contributing to the union’s speech. The employee argues that this practice violates both the Railway Labor Act and the First Amendment. He relies on prior decisions holding that public-sector unions and employers must get an employee’s affirmative consent before extracting union dues or fees.

Next, in Crowe v. Oregon State Bar, the justices are asked to review the use of mandatory attorney dues by the Oregon State Bar to fund political and ideological speech. The challengers are Oregon attorneys who say the state bar uses the mandatory dues to fund legislative advocacy and other speech on matters of public importance. They ask the court to clarify prior case law on bar-association dues and declare that the Oregon policy is subject to the same “exacting” First Amendment scrutiny as laws involving subsidized speech by public-sector unions.

Lastly, Healthcare Distribution Alliance v. James asks the court to clarify the difference between state taxes and other types of assessments, such as penalties or fees. New York passed a law imposing an annual surcharge on opioid manufacturers and distributors. The state uses the money to pay for remedial programs related to opioid abuse. Pharmaceutical trade groups challenged the law, arguing that it is unconstitutional. The U.S. Court of Appeals for the 2nd Circuit held that the surcharge is a “tax” under the federal Tax Injunction Act, which prohibits federal courts from enjoining the collection of state taxes. The trade groups say the 2nd Circuit’s ruling conflicts with decisions by three other circuits about what constitutes a “tax” under the TIA.

These and other petitions of the week are below:

Healthcare Distribution Alliance v. James
Issue: Whether the New York Opioid Stewardship Act’s surcharge is a “tax” within the meaning of the Tax Injunction Act, despite having features that other circuits repeatedly have held indicative of a punitive fee.

Leontaritis v. United States
Issues: (1) Whether, if a jury is instructed to “determine” a fact by indicating a “unanimous finding beyond a reasonable doubt” and does so, the resulting verdict indicates a finding beyond a reasonable doubt, as opposed to a mere failure to find; and (2) whether, if a jury verdict finds a fact beyond a reasonable doubt, a district court’s sentencing decision must accept the jury’s determination or instead may base the sentence on its own independent finding that contradicts the jury’s.

Baisley v. International Association of Machinists and Aerospace Workers
Issue: Whether opt-out procedures for collecting union fees for ideological and political activities violate the First Amendment or the Railway Labor Act.

Nettles v. Midland Funding, LLC
Issues: (1) Whether, under Spokeo, it is sufficient for standing simply to allege a violation of the procedural rights created by the Fair Debt Collection Practices Act, as six circuits have held, or must a plaintiff also always allege an additional injury beyond such a violation, as five circuits (including the 7th in this case) have held; and (2) whether some additional injury is required for standing under the Act, whether it is sufficient to allege mental distress or lost time dealing with a violation of the Act, as the 4th, 11th, and D.C. Circuits have held, or whether something more than mental distress or lost time is required, as the 7th (in this case) and 9th Circuits have held.

Crowe v. Oregon State Bar
Issue: Whether the statute that compels attorneys to subsidize Oregon State Bar’s political and ideological speech is subject to “exacting” scrutiny.

Recommended Citation: Mitchell Jagodinski, Union fees, bar association dues, and the funding of political speech, SCOTUSblog (Jun. 11, 2021, 4:27 PM),