Can a state force you to allow someone to speak on your behalf? While the First Amendment would seem to make such a result doubtful, the Ninth Circuit ruled that Katherine Miller can be forced by the state of Washington to accept an advocacy group as her “authorized agent,” representing her in all bargaining matters. Miller owns a childcare business, and Washington gives subsidies to providers on behalf of needy families who can’t afford childcare. Before 2006, the state determined the level of subsidies through legislation and regulation, but after that year the state recategorized home childcare providers as “public employees” for purposes of collective bargaining and authorized the providers to elect an exclusive collective‐bargaining representative to negotiate with the state on their behalf concerning childcare assistance policies.
Miller sued, arguing that the First Amendment prevented Washington from forcing her to accept the union as her bargaining representative. The judges on the Ninth Circuit gave little weight to Miller’s First Amendment objections, holding that a 1984 Supreme Court case placed such a scenario outside the realms of the First Amendment. That case, Minnesota State Board for Community Colleges v. Knight, has been misinterpreted by many courts as immunizing exclusive representation schemes from First Amendment challenge.
Miller has petitioned the Supreme Court to review her case. The Cato Institute, alongside the Buckeye Institute, has filed a brief in support. We argue that the lower courts have misappliedKnight to these cases of exclusive representation. In order to restrict Miller’s First Amendment rights of speech and association, the state must pass the heightened scrutiny of the First Amendment.
Knight was a challenge to Minnesota’s Public Employment Labor Relations Act (PELRA). PELRA contained a collective‐bargaining provision that required public employers to “meet and negotiate” with respect to the “terms and conditions of employment” with a certified exclusive representative. The Supreme Court upheld these provisions on the ground that individuals do not have “a constitutional right to force the government to listen to their views.” However, the decision did not address a First Amendment challenge to compelled representation because that challenge was not raised by either parties.
While the Knight decision seems to be purposely limited in its application; the First, Second, Seventh, and now the Ninth Circuit have made a mountain out a molehill. They interpret the Court’s holding in Knight as preventing any First Amendment challenge to compelled exclusive representation. These circuits have not only misrepresented what the Court held in Knight, but have brushed aside the obvious First Amendment issues with forcing someone to accept an unwanted representative to speak on their behalf. In fact, the Court’s recent decision in Janus v. AFSCME held that compelled exclusive representation is “itself a significant impingement on associational freedoms that would not be tolerated in other contexts.” The Court should take the case to clarify that exclusive representation is a significant First Amendment harm does not pass constitutional scrutiny.