If everyone agrees that forcing public employees to subsidize a labor union’s political or ideological speech impinges their First Amendment rights—and the Supreme Court has been unanimous on that point for decades—then what possible justification is there for requiring workers who’ve declined to join the union to go through the arduous process of opting out from making such payments year after year?
There is none, argues Cato’s amicus brief in Friedrichs v. California Teachers Association. As the Court recounted in Knox v. SEIU (2012), “acceptance of the opt-out approach appears to have come about more as a historical accident than through the careful application of First Amendment principles.” But as a matter of principle, opt-out plainly violates the cardinal rule that procedures involving compelled speech and association must be “carefully tailored to minimize the infringement” of First Amendment rights.
Under the opt-out approach, dissenting workers bear the risk that, if they are unsuccessful in following the opt-out procedure reluctantly administered by the union, their money will be used to further political and ideological ends with which they do not agree. The labor union, whose constitutional rights are not at stake, bears no risk at all—by default, it gets the money.
For example, a teacher who learns partway through the year that her payments to the union are being used to fund speech that she finds abhorrent—and the union here lobbies on controversial issues like abortion, gun control, and immigration reform—is still compelled by the government to continue funding that speech until the next opt-out period.
Unions, of course, favor opt-out precisely because it allows them to take advantage of inertia on the part of would-be dissenters who fail to object affirmatively. But that is no basis to countenance the wholesale violation of public employees’ First Amendment rights. Courts “do not presume acquiescence in the loss of fundamental rights,” and application of that principle here will spell the end of abusive opt-out regimes.
The Supreme Court will hear argument in Friedrichs in the middle of the upcoming term, likely in January. For more on the case and our argument, see this SCOTUSblog essay.