When Are Union Dues a Form of Speech?

By
Christopher E. Babbitt
March 01, 2018

Christopher E. Babbitt is a partner at WilmerHale in Washington, D.C. He was one of the lawyers who filed an amicus brief in the Supreme Court in the Janus case. The views in this piece are his own and not those of the firm or its clients.


The Supreme Court heard oral argument this week in a case that could upend decades of First Amendment doctrine in areas well beyond the context of organized labor in which it arose and where its consequences will be most directly felt. The argument was unusually intense, yet also unusually revealing about the choice posed for the Court.

The case, Janus v. American Federation of State, County, and Municipal Employees, Council 31, presents a First Amendment challenge to state laws that authorize public-sector unions to charge “agency” or “fair share” fees to employees who choose not to become union members yet benefit from the unions’ work. As reported in The New York Times on the eve of oral argument and detailed in a brief by two Democratic senators, the case represents the culmination of a concerted effort by opponents of organized labor (and proponents of right-to-work laws) to weaken labor unions, particularly in the public sector.

In upholding the constitutionality of agency fees more than 40 years ago in Abood v. Detroit Board of Education (1977), the Court held that unions could charge such fees to cover costs connected to the public functions they perform but could not charge nonmembers for political activities. The future of that balance — between the government’s interests in managing its own workforce and in imposing fees to fund public functions and individuals’ interests in not subsidizing speech with which they disagree — was central to Monday’s argument.  

The petitioner, Mark Janus, an employee of the State of Illinois, argues that all union speech directed at the government is “political speech indistinguishable from lobbying the government” and that nonmembers have a First Amendment right to avoid paying for any union activities. That’s so, he says, even where states enlist unions to perform public functions (such as processing employee grievances) within the government workplace. In his view, the Court should overrule Abood and declare agency fees categorically unconstitutional. Reversing the United States’ historical position on the issue, Solicitor General Noel Francisco joined Janus in asking the Court to overturn its precedent. That prompted Justice Sonia Sotomayor to ask “how many times this term already you have flipped positions from prior administrations.” (His answer: Three.)   

...the case represents the culmination of a concerted effort by opponents of organized labor (and proponents of right-to-work laws) to weaken labor unions, particularly in the public sector.

The union contends that declaring agency fees unconstitutional would weaken it and unions in general because, as Illinois’ lawyer explained in response to a question from Chief Justice John G. Roberts, Jr., “over the long term, human nature and basic economics dictate that the free-rider problem will become endemic, and not only that, but contagious.” That problem occurs when non-union employees benefit from union activities funded by union members who pay dues. Unions would be obliged to raise fees on their members to counteract the loss of revenue from nonmembers. That would increase the pressure on the remaining members to become free riders themselves — a point substantiated by a brief filed by a group of economists, including three Nobel laureates.

The oral argument highlighted two sets of doctrinal difficulties presented by Janus’s position. First, the Court has long held that the government has broader discretion to restrict speech as an employer than as sovereign, and that when a citizen chooses to work for the government, “the citizen by necessity must accept certain limitations on his or her freedom,” Garcetti v. Ceballos (2006). The Court has reasoned that the government should enjoy the same latitude as a private employer to manage its workforce and that the government could not function “if every employment decision became a constitutional matter,” Connick v. Myers (1983). To state a First Amendment claim under current law, a government employee must first establish that he or she is speaking both “as a citizen” and on “a matter of public concern.”

Justice Elena Kagan asked the solicitor general whether the government’s position was that “all speech about employment conditions, about pay, about vacation, … about all of the various employee benefits that … are really the heart of collective bargaining … is a matter of public concern” entitled to First Amendment protection. When the solicitor general said yes, she remarked that his answer was “a very unusual position for the government to be taking, looking after the long-term interests of the United States Government, because essentially what that means is that you will have to litigate all employee/employer disputes” as First Amendment cases.

Justice Anthony M. Kennedy’s most pointed questions focused less on those doctrinal matters and more on the political consequences of a unionized workforce.

Justices Ruth Bader Ginsburg and Sotomayor asked about a second line of cases that derive from Abood. In those cases, the Court has held that nongovernmental organizations that perform public functions (like public universities and state bar associations, in addition to unions) can require members to pay fees to the organization without running afoul of the First Amendment. That’s so even where the fees subsidize speech with which some members disagree. As the Court has explained, states “have a strong interest in allocating to the members of the bar, rather than the general public, the expense of ensuring that attorneys adhere to ethical practices,” Harris v. Quinn (2014). Public universities also have an interest in charging students generalized activity fees in order to support extracurricular programs that foster a diversity of viewpoints, as the Court recognized in Board of Regents of University of Wisconsin System v. Southworth. And states have—for decades—been understood to have a compelling interest in partnering with unions to manage labor relations in the public sector.

Justices Ginsburg and Sotomayor asked whether, if Abood were overruled, the First Amendment would then require a ban on student activity fees and bar dues. They appeared unsatisfied with Janus’s assertion that the government has a more compelling interest in those arrangements than in managing the public-sector workforce. As Garrett Epps explained in The Atlantic, the Supreme Court agreed to hear the case in such a way that Janus was not required to present any evidence to support his claims, and neither the union nor the State of Illinois were permitted to present any evidence to rebut them.

Justice Anthony M. Kennedy’s most pointed questions focused less on those doctrinal matters and more on the political consequences of a unionized workforce. He appeared to accept Janus’s position that unions are inherently political and questioned whether the state has a legitimate interest in what he characterized as unions’ advocacy “for a greater size workforce, against privatization, against merit promotion, … for teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness, for increasing taxes.” In one telling exchange, he asked the union’s lawyer whether “if you do not prevail in this case, the unions will have less political influence, yes or no?”  When the lawyer responded that “yes, they would have less political influence,” Justice Kennedy replied, “Isn’t that the end of your case?” 

Justice Stephen G. Breyer asked — repeatedly — whether these doctrinal and practical concerns could be addressed by what he described as a “compromise” originally proposed by Justice Antonin G. Scalia (in an opinion joined by Justices Kennedy, Sandra Day O’Connor, and David H. Souter) in Lehnert v. Ferris Faculty Association (1991). The compromise would retreat from the status quo under Abood—which Justice Samuel A. Alito, Jr. has long sought to overturn, as reflected in his decisions in Harris v. Quinn and Knox v. Service Employees International Union (2012). But by narrowing the permissible scope of agency fees rather than eliminating them entirely, it would avoid what Justice Breyer described as “suddenly cut[ting the] legs” out from under union financing.

Under Justice Scalia’s compromise, unions would be permitted to charge nonmembers “only for the costs of performing the union’s statutory duties as exclusive bargaining agent” — e.g., the costs of contract negotiation and processing grievances — but not for the costs of lobbying the government or engaging in political activities. “Where the state imposes upon the union a duty to deliver services,” Justice Scalia explained in Lehnert, “it may permit the union to demand reimbursement for them; or, looked at from the other end, where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost.”

The compromise, which did not attract a majority of justices in 1991, was urged on the Court by two prominent constitutional law scholars — Charles Fried of Harvard Law School, who served as solicitor general during the Reagan administration, and Robert Post, a former dean and current professor at Yale Law School, who has written extensively on the First Amendment. Professors Fried and Post filed a friend-of-the-court brief explicitly “in support of neither party” to explain that Justice Scalia’s statutory-duties test would preserve the Court’s established First Amendment doctrine while respecting the First Amendment interests of dissident fee payers, by ensuring that unions did not charge for activities in the political arena. (I was one of the lawyers representing Professors Fried and Post in connection with their brief.)

Two years ago, when the Court was asked to overrule Abood in Friedrichs v. California Teachers Association (2016), the eight justices split 4-4. Justice Scalia died after the oral argument in that case, before the Court issued that decision. Justice Neil M. Gorsuch replaced Justice Scalia last year, and there is speculation that he will provide the fifth vote in favor of Janus. He did not ask a single question at Monday’s argument.