Less Perfect Union

When the Supreme Court Busts a Union

Can public-employee unions charge a fee in order to represent all their workers? The Supreme Court hears the case today.

01.11.16 5:01 AM ET

Scott Walker may be yesterday’s news, but his brand of union-busting Republicanism is about to have its day in court—Supreme Court. And it will probably win.

The Court will hear oral arguments in the case of Friedrichs v. California Teacher Association, which addresses an obscure but essential element of public employee unions: whether non-union members can be required, as a condition of employment, to pay fees to the union for negotiating their contracts.

On the face of it, it seems absurd that non-members should have to pay union fees. But it isn’t, really. While non-union-members lose some of the benefits of union membership in exchange for not paying dues, they still enjoy the central one: having the union do collective bargaining for them. So even if they choose not to pay dues and not to join, they are still required to pay a fee to cover those costs.

If non-members didn’t pay the fee, they would be what economists call “free riders”—people who get all the benefit but pay none of the cost. What would be the point of joining the union if you get its central benefit for free?

By way of comparison, suppose I don’t like U.S. policy, so I want to opt out of paying taxes. That’s not fair, because I still benefit from the country’s military, infrastructure, and so on. I’m a “free rider.” So while there are many things I can legally do to protest those policies, refusing to pay taxes is not one of them.

Likewise in the case of unions, which is why union fee provisions are often known informally as “fair share provisions.” Such fees, even if they were equal in size to union dues themselves, were held to be constitutional in the case of Abood v. Detroit Board of Education, in 1977.

That all makes economic sense, but this is politics, and public unions are a hot political issue.

In 2011, Wisconsin Governor Scott Walker defined his national reputation by stripping public-employee unions of their rights to collective bargaining and mandatory payment of dues — effectively killing the unions entirely. (He also made Wisconsin the 25th “right to work” state, crippling private-sector unions as well.) And in the presidential election, Walker went even further, proposing to abolish federal workers’ unions outright.

And it’s not just Scott Walker. In addition to Republican presidential candidates, all of who seek to curb the power of unions, the Koch-funded American Legislative Exchange Council, or ALEC, has advanced legislation for restricting collective bargaining, prohibiting dues deductions from paychecks — and opting out of the kind of dues-paying requirements now at issue in Friedrichs. In fact, Friedrichs would make the Kochs’ work unnecessary, since it would ban mandatory dues and mandatory fees nationwide.

When the Court last took up this issue two years ago, it ruled against the unions, though in a case where context limited the reach of the opinion. The 5-4 opinion in that case, Harris v. Quinn, held that public health workers who were contracted by the state of Illinois could not be required to pay union fees. This, the Court said, was actually an “expansion” of Abood, and struck it down for that reason.

But the Court also cast doubt on Abood itself — which is why, two years later, it looks like the precedent may be overturned, and public-sector unions busted nationwide. After a lengthy history of the cases leading up to Abood, Justice Alito, writing for the Court, called that case “questionable on several grounds” and “troubling,” and spent several pages tearing apart its core reasoning.

Ultimately, Abood was left standing, and so these statements are not quite settled law (Justice Kagan’s dissent called them “potshots”) but they certainly suggest that the clock is ticking.

The reason is the First Amendment. In Abood, the teachers who wanted to opt out of the teacher’s union said that their dues were promoting the union’s political speech, included on the issue of collective bargaining itself. Factually speaking, this is certainly true. Unions take political positions all the time, and mandatory union dues or “fees” are supporting them.

Thus, in Abood, the Court tried to distinguish between “chargeable” expenses (i.e., those connected with contract negotiations) and “nonchargeable” (i.e., political ones). But as Justice Alito noted in Harris v. Quinn, that distinction has proven very hard to maintain.

What expenses are really “germane” to collective bargaining? Whose salaries count? Must courts audit the unions’ budgets to ensure no constitutional violation is taking place?

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It’s easy to argue both sides of these questions, but that may not matter because of the makeup of the Court. Arguably, even some leaching of union dues into political speech may be justified by the public policy reasons for having public-sector unions. Arguably, the state may restrict (or compel) speech more when it is an employer than when it is a government.

But ultimately, with five justices having already signed onto a condemnation of Abood, the unions’ days seem numbered.

The best/last argument available to the unions is stare decisis, the precedential value of Supreme Court opinions. Stare Decisis (literally, “the decision stands”) is a powerful doctrine; it raises the bar for overturning precedents, and it saved Roe v. Wade at a time when many thought it was about to be overturned. And here, even if Abood is deemed to be “questionable,” stare decisis might save that holding too.

No doubt, that’s why Justice Kagan’s dissent two years ago spent five long paragraphs applying stare decisis to Abood. It seems unlikely that Justice Kennedy or Chief Justice Roberts would offer a ringing endorsement of public-sector unions, but as judicial conservatives, one of them might sign on to stare decisis.

It’s easy to be cynical about these cases. Is it the least bit suspicious that the court’s five conservatives oppose unions, while the court’s four liberals support them? Is it just a coincidence that the conservative members were appointed by Republicans, who are now engaged in a nationwide campaign of union-busting, while the liberals were appointed by Democrats, whose base includes the unions?

And it’s in the political realm, far more than the constitutional one, that Friedrichs will be relevant. In constitutional terms, this is yet another case balancing free-speech rights with government policy. It’s full of three-pronged tests and obscure legal standards.

But in political terms, if the unions lose in this case, they will be crippled around the country as their financial stability will be threatened. The entire dynamic of public sector employment will change dramatically, likely resulting in lower wages and fewer benefits.

It will be a huge win for the Republican Party, brought about by five Republicans in Washington, and Koch-funded activists who brought this litigation in the first place.

But there is one final irony. As workers are weakened, employers are strengthened. Thus, the Republican Party, which theoretically opposes the power of government, will in fact have greatly increased it.