Issues to Watch

First Amendment Challenges Threaten Funding Schemes For Public Sector Unions Could Shape The Upcoming National Election


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First Amendment Challenges Threaten Funding Schemes For Public Sector Unions Could  Shape The Upcoming National Election

Christian Piatt*

As politics returns to center stage with each party trying to find its next presidential candidate, the issue of public sector unions is coming before the Supreme Court.  Recently, the Supreme Court heard Harris where a small group of employees sought First Amendment protection from mandatory contributions to public sector unions.  Harris v. Quinn, 134 S. Ct. 2618 (2014).  The Court struck down aspects of the challenged scheme but limited the decision to a small class of employees.  A second suit now follows on the heels of the Court’s 5-4 decision in Harris.  In Friedrichs, a school teacher alleges that mandatory contributions to a union infringe her First Amendment rights by requiring her to fund a third party organization whose political agenda conflicts with her personal beliefs.  Friedrichs v. California Teachers Ass’n., No. 13-57095, 2014 WL 10076847 (9th Cir. Nov. 18, 2014) cert. granted, 135 S. Ct. 2933 (2015).  Whichever way the Court holds will certainly fuel passionate, widespread debate throughout the upcoming election season.

Traditionally, Democratic political candidates support the work rules negotiated by organized labor, even in the public sector.  Hugo Mialon & Paul Rubin, The Economics of the Bill of Rights, 10 Am. L. and Econ. Rev. 1 (2008).  Not surprisingly, unions representing public sector employees tend to support Democratic candidates and policies.  Id.  On the other hand, Republican policies prefer “Right to Work” rules that limit the collective bargaining power of organized labor.  Id.  Now, legal challenges ask the Supreme Court to decide whether unions representing government workers may require non-member contributions.  The result could have far reaching political ramifications.  Lyndsay Layton, Supreme Court Ruling on Unions Reverberates, Wash. Post. (June 30, 2014), https://www.washingtonpost.com/local/education/supreme-court-ruling-on-unions-reverberates/2014/06/30/f6045362-006e-11e4-8fd0-3a663dfa68ac_story.html.  The Court’s decision in Friedrichs v. California Teachers Ass’n, where the Plaintiff seeks an end to all mandatory contribution schemes to public sector unions, could affect many people in seemingly unrelated professions.  Id. (stating that 26 states have mandatory contribution schemes similar to the one challenged here).

While organized labor seeks to secure better bargains for the individual, employers bear the cost of the plans.  In 2011, Wisconsin instituted legislation aimed at decreasing the influence of labor unions.  Friedrichs v. Cal. Teachers Ass’n., No. 13-57095, 2014 WL 10076847 (9th Cir. Nov. 18, 2014) cert. granted, 135 S. Ct. 2933 (2015).  Governor Walker challenged the unions directly, and withstood widespread protests while implementing “right to work” policies in the state.  Id.  With Wisconsin leading the way, other states undertook similar efforts, which now brings the issue of collective bargaining into the upcoming national election debates.  Id.  Ignoring union opposition, Republican-led legislatures challenged union-friendly laws in Indiana, Idaho, Tennessee, New Jersey, and Michigan.  In response, unions organized ballot initiatives that overturned “right to work” legislation in Ohio and Idaho.  Id.   

In Harris v. Quinn, a group of personal assistants from Illinois brought suit against the state on grounds that a mandatory contribution to the public union violated their First Amendment right to free speech.  Harris v. Quinn, 134 S. Ct. 2618 (2014).  The Illinois suit alleges that contributions to the union require workers to contribute to a political group they do not support, thus raising a Constitutional free speech challenge.  Id. at 2623–25. 

The government may not prohibit the dissemination of ideas that it disfavors nor compel endorsement of ideas it approves.  U.S. Const. amend. I.  Following this rationale, the Supreme Court struck down the scheme in Illinois, which compelled state employees to make a “fair share” contribution to the cost of negotiating a collective bargaining agreement.  In a 5-4 vote, the Court held that requiring personal assistants and non-union, Medicaid funded home health care assistants to pay union fees violates protections guaranteed by the First Amendment.  Harris, 134 S. Ct. at 2620.  Justice Alito carefully limits the decision to apply to a very narrow class of employees.  The personal assistants challenging the law in Harris are not the same as other state employees.  See id. at 2621.   

Most significantly, in deciding the case, the Court stated that “compelled funding of the speech of other private speakers or groups presents the same dangers as compelled speech.”  Id. at 2639.  This finding raises the stakes for unions and the policy makers who support them.  To uphold mandatory contributions, the state must now show that the contribution schemes advance a compelling state interest and that requiring mandatory contributions is the least intrusive method by which the interest can be achieved.  Id. at 2625.

A new suit brought by a California teacher challenges the narrow exemptions drawn by the Court in Harris.  Friedrichs v. Cal. Teachers Ass’n., No. 13-57095, 2014 WL 10076847 (9th Cir. Nov. 18, 2014) cert. granted, 135 S. Ct. 2933 (2015).  Not satisfied with the narrowly defined class of exemptions, Plaintiff Rebecca Friedrichs seeks an end to all mandatory contribution schemes for public unions.  Layton, supra.  Friedrichs alleges First Amendment violations on grounds that the union agenda conflicts with her personal political views.  Friedrichs, 2014 WL 10076847, at *1.  Friedrichs draws attention to federal laws expressly granting employees the right to decide for themselves whether to participate in a union.  See, e.g., 5 U.S.C. § 7102 (2012).  The holding in Harris bolsters her case by providing that a person can be compelled to subsidize third party speech “except perhaps in the rarest circumstances.”  Harris, 134 S. Ct. at 2644.

While the Court seems to create a minefield for anyone seeking to enforce union funding schemes, the opinion provides insight into potential defenses.  Id.  The Court indicated that public universities create a compelling interest in securing diverse funding for public sector labor unions.  Id. at 2644 (citing Rosenberger v. Rector and Visitors of Univ. of Virginia, 515 U.S. 819 (1995)).  Additionally, the Court held that it was permissible to require lawyers to pay membership dues in order to remain active in their respective bar associations.  Keller v. State Bar of California, 496 U.S. 1, 14 (1990).  Mandatory membership in the bar served a compelling state interest because of the professional nature of the legal profession.  Id.  Because the practice of law relates to rules and ethical proposals developed by the Bar Association, a lawyer must pay fair share dues for any activities related to developing and implementing the professional standards.  Id.  Taken together, Keller and the allowances for public universities provide a solid foundation on which the California Teachers Union may defend their funding scheme. 

While the First Amendment provides that Congress shall pass no law abridging the right to free speech, an economics approach permits censure of “speech that is harmful if the costs to society outweigh the interests and rights of the individual against the general welfare of society.”  See Mialon & Rubin, supra.  The Supreme Court’s record on where the balance between individual liberty and the interest in general welfare lies is intentionally ambiguous.  Brandenburg v. Ohio, 395 U.S. 444, 450 (1969) (leaving lower courts to interpret whether a danger is clear or imminent).  But any decisions interpreting the right to free speech is important, and thus we should care about the case here.  The Supreme Court plans to hear Friedrichs v. California Teachers Union in the October 2015 Term. 


*Christian Piatt graduated from George Mason University in 2001.  He served as an Officer in the Army and Army Reserves for 10 years before attending law school.   He serves as a mentor to Veterans participating in Baltimore City Veteran’s Docket.

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