Symposium: Will the Court continue to recognize a distinction between bargaining with government and lobbying the government?

Bill Messenger

August 25, 2015

William Messenger is an attorney with the National Right to Work Legal Defense Foundation.  He argued on behalf of the petitioners in Harris v. Quinn.

The First Amendment generally forbids the government from forcing citizens to support a private organization’s speech and expressive activities. Yet, roughly forty years ago, the Supreme Court held in Abood v. Detroit Board of Education that the government can force public employees to financially support some types of union speech, but not other types. Specifically, Abood held that employees could be forced to subsidize union collective bargaining with the government, but not union political activities intended to influence government policy.

The Supreme Court is now revaluating Abood’s holding in Friedrichs v. California Teachers Association. In this case, several California public-school teachers and the Christian Educators Association, with the support of the Center for Individual Rights, urge the Court to overrule Abood because its underlying dichotomy is untenable. As the petitioners put it in their petition for certiorari, “public-sector collective bargaining is core political speech materially indistinguishable from lobbying.”

The road to Friedrichs began with Abood itself. There, Justice Lewis Powell, joined by Chief Justice Warren Burger and Justice Harry Blackmun, sharply criticized the majority opinion on the ground that “the public-sector union is indistinguishable from the traditional political party in this country,” because “[t]he ultimate objective of a union in the public sector, like that of a political party, is to influence public decision making in accordance with the views and perceived interests of its membership.” Moreover, then-Justice William Rehnquist, concurring with the majority only because he had dissented in the case striking down political patronage, was “unable to see a constitutional distinction between a governmentally imposed requirement that a public employee be a Democrat or Republican or else lose his job, and a similar requirement that a public employee contribute to the collective-bargaining expenses of a labor union.

The Supreme Court returned to this road in Knox v. SEIU (2012) and Harris v. Quinn (2014). In Knox, the Court held it unconstitutional for a union to force nonmember state employees to subsidize a campaign against two ballot propositions without the employees’ prior consent. The Court rejected the union’s argument that the expenditures were chargeable under Abood because the ballot propositions, if enacted, would have affected the union’s present and future contracts. Moreover, Knox recognized that “a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences,” and deemed Abood’s rationale “for compelling nonmembers to pay a portion of unions dues” to be “something of an anomaly.”

Two years later, the Court in Harris considered whether independent Medicaid providers, who were not state employees but merely received a state subsidy, could be forced to pay compulsory union fees under Abood. The Court sharply criticized Abood as having “questionable foundations.” The Court found Abood’s analysis “questionable” for no fewer than six reasons, most of which center on the political nature of collective bargaining with government.

Among other things, Harris found that Abood failed to appreciate the “conceptual difficulty” of distinguishing union bargaining activities from political activity because, “in the public sector, both collective-bargaining and political advocacy and lobbying are directed at the government.” Consequently, the Court explained, in “the public sector, core issues such as wages, pensions, and benefits are important political issues.” However, while refusing to extend Abood “to the new situation” before it, the Court did not overrule Abood because it found that decision inapplicable to the non-employee Medicaid providers forced to pay union fees in Harris.

Friedrichs likely represents the terminus of this line of reasoning. By design, the case squarely presents the question wrongly decided in Abood:  whether public school teachers can be forced to support union bargaining with a school district. Harris suggests that the Court will be receptive to the Friedrichs petitioners’ arguments that there is no relevant difference under the First Amendment between bargaining with government and lobbying government, in that both are petitioning government over matters of political and public concern, and that Abood should be overruled on these grounds.

Harris also suggests that the Friedrichs respondents have a difficult path ahead of them, because Harris rejected most union arguments for compulsory fees. Harris specifically rejected the notion that collective bargaining is akin to the grievance of a single employee, and thus not a matter of public concern, because the bargaining agreement resulting from a union’s petitioning on behalf of hundreds or thousands of employees may, as the Court put it, “have massive implications” for public policy. Harris also rejected as “unwarranted” the notion that compulsory fees are necessary for an exclusive representative to collectively bargain.        

Ironically, public-sector unions may themselves have done the most to undermine Abood’s dichotomy. Since Abood was decided in 1977, unions have amply demonstrated that their bargaining with government profoundly, and often adversely, affects public policy. This includes a significant impact on the public fisc, as public employees’ wages and benefits are a sizable percentage of public budgets, particularly at the local level. Public-sector collective bargaining has also had a significant effect on non-economic public policies. For example, union bargaining with public school districts often determines educational policies on matters of public concern such as class size, teacher tenure and discipline, and merit pay. For the respondents in Friedrichs to argue that union collective bargaining with government is merely an internal matter with no political component, and of no public concern, would be to ask the Court to deny the obvious.

Leaving aside the positive impact on public policy of reducing the unique power and financial resources of public-sector unions, the Friedrichs decision will have profound implications for the First Amendment rights of millions of workers. An estimated five million public-sector employees are currently subject to forced-fee requirements and must pay tribute to a union as a condition of their employment. Even under the existing precedents, this is, as the Court has recognized repeatedly, a “significant impingement” on the First Amendment rights of each and every individual worker who would not voluntarily support the union which government forces them to subsidize. Overruling Abood will end the most widespread abuse of First Amendment rights in the nation, while failing to do so will perpetuate it.