June 30, 2015 1:43PM

Supreme Court to Consider Ending Forced Public‐​Sector Union Dues

Today, the U.S. Supreme Court announced that it would hear Friedrichs v. California Teachers Association, which asks the court to consider whether compulsory public-sector union dues violate the First Amendment right to free speech--which includes the right to be free from compulsory speech. The Cato Institute filed an amicus brief supporting the petitioners' request that SCOTUS hear the case.

In 26 states, public-sector unions can force non-members to pay dues anyway. As I noted last year: 

The unions contend that these compulsory dues are necessary to overcome the free rider problem (non-union members may benefit from the collectively-bargained wages and benefits without contributing to the union), but plaintiffs in Friedrichs v. California Teachers Association point out that numerous organizations engage in activities (e.g. – lobbying) that benefit members and non-members alike without giving such organizations the right to coerce non-members to pay. That’s especially true when the individuals who supposedly benefit actually disagree with the position of the organization. 

But even if unions could demonstrate that the dues were necessary to prevent freeriding, the U.S. Supreme Court held in Harris v. Quinn last year that “preventing nonmembers from freeriding on the union’s efforts” is a rationale “generally insufficient to overcome First Amendment objections.” Federal law allows dues-payers to opt out of the portion dedicated to express political activities (e.g. - lobbying), but the petitioners argue that public-sector collective bargaining itself is inherently political. As the Cato Institute's legal eagles explain:

Ever since the 1977 case of Abood v. Detroit Board of Education, it has been unconstitutional for unions to spend nonmembers’ compulsory dues on blatant political activity such as political ads. But unions can still collect so-called “agency fees” from nonmembers in order to fund activities “germane to [the union’s] functions as exclusive bargaining representative” such as the costs of collective bargaining to secure “advantages in wages, hours, and other conditions of employment.” Every year, public-sector unions must separate their political spending from their “agency fees” and give nonmembers an opportunity to opt-out of the political spending.

Yet, when it comes to public-sector unions, it is somewhat bizarre to say that some of the spending is “political” and some isn’t. A teachers union may run political ads advocating for particular public policy positions, but it also collectively bargains in order to fight for similarly “political” gains, such as class size, school year length, and teacher qualifications. In a sense, a teachers union is just another political party that lobbies the government for preferred policies, and, whether it is spending on political ads or collectively bargaining, both are “political.” 

In Harris v. Quinn, the majority appeared to signal that they agree with the petitioners' assertion and they cast a gimlet eye on Abood:

The Abood Court’s analysis is questionable on several grounds. Some of these were noted or apparent at or before the time of the decision, but several have become more evident and troubling in the years since then. [...]

Abood failed to appreciate the difference between the core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech involuntarily funded by their counterparts in the private sector. In the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector. 

In other words, at least five justices appear inclined to hold that public sector collective bargaining is inherently political and that forcing someone to contribute toward it would violate the First Amendment right to be free from compulsory speech. If so, it would be a major blow to the teachers unions--significantly reducing their revenue and their political clout--and therefore a major victory for education reform.