*This is part of ACSblog's Symposium on Janus v. AFSCME

Janus v. American Federation of State, County, and Municipal Employees, Council 31 presents a First Amendment challenge to Illinois public-sector labor-relations statutes and contracts that require union-represented employees to pay a fee to the union for services that the union is required by law to provide. Hundreds of such municipal and state laws have been on the books for over half a century in about half the states, and the Supreme rejected a First Amendment challenge to them in 1977 in Abood v. Detroit Board of Education. To overturn this settled practice will upend labor relations affecting tens of thousands of teachers, first responders, health care providers, clerks, and other public servants. To rule for the challengers will also require the Supreme Court to make new law in the area of free speech with implications far beyond the working conditions of public employees.

Collective bargaining in both the public and private sector is modeled on political democracy. A union is elected by a majority. Like an elected government, it develops and implements rules governing the community and must be able to charge those whom it represents for the cost of doing so. In the political sphere those payments are known as taxes; in the workplace they are known as dues (for those who choose to join the union) or agency fees or fair-share fees (for those who don’t).

Unlike elected political leaders, however, unions have a duty to represent all fairly. This legally enforceable duty of fair representation prohibits union representatives from discriminating against those who oppose or choose not to join the union. And it requires unions to provide services to all, not just to those who pay their fair share.

Janus argues that nobody should have to pay fees because paying the fee is speech, or at least it is a subsidy for speech, and the government cannot compel speech. The Supreme Court would never accept this argument about taxes. If taxes were optional, people would free ride on the bus or on their neighbor’s willingness to pay taxes to fund schools and parks. Nor would anyone claim that a private organization (which is what a union is) must give away services for free: airlines don’t have to let passengers fly free, and insurance companies don’t have to pay the medical bills of someone who didn’t purchase insurance. As Justice Antonin Scalia explained in Lehnert v. Ferris Faculty Association, in which the Court unanimously upheld a Michigan law requiring fair-share fees, “where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost.”

The business groups who challenge Illinois law in Janus argue that the burden on unions is small because they benefit from the opportunity to bargain and because the burden of providing free representation is small. They rely on the Court’s 2014 decision in Harris v. Quinn, which invalidated an Illinois law providing for fair-share fees for home-care workers because, in the Court’s judgment, that particular legal regime gave the union insufficient responsibilities in contract negotiation or administration to warrant charging nonmembers. The Harris Court minimized the significance of the statutory requirement of fair representation, explaining that “private speech often furthers the interests of nonspeakers, and that does not alone empower the state to compel the speech to be paid for.” But there is no other circumstance where, as Justice Scalia emphasized in Lehnert, the law allows “free riders whom the law requires the union to carry--indeed, requires the union to go out of its way to benefit, even at the expense of its other interests.”

The threat of free riding prompted the Supreme Court to reject First Amendment challenges to compulsory bar dues for lawyers (Keller v. State Bar of California), and compulsory student-activity fees at public universities (Board of Regents v. Southworth) even though such dues and fees are used to fund speech with which some lawyers and some students disagree. Harris distinguished bar dues and student fees on the ground that the state has a greater interest in requiring lawyers and students to fund the admission, discipline and student activity systems than did Illinois in requiring home-care workers to fund the negotiation and administration of a contract. But that distinction is not available in Janus: given the importance to state and local governments of managing their workforces, it would be a shocking departure from federalism principles for the Supreme Court to decide that governments have no interest in requiring cost-sharing of the elaborate personnel processes that public employment often entails.

What Janus asks the Court to rule is unprecedented elsewhere in the law. Cities routinely hire lobbyists to protect their interests in state and federal legislatures. Could taxpayers object to cities using their funds to engage in lobbying with which the taxpayers disagree?  Every employee who is covered by a health or pension plan contributes some tiny amount to the insurance company’s lobbying or other political speech or a pension plan’s investment in companies that engage in speech with which the employee may disagree. Neither taxpayers nor pension or health plan participants can object to government or plan lobbying or other speech because we treat it as the speech of the organization, not the individual.

  The rules should be the same for unions as other private organizations that collect mandatory fees for services. Unions have a First Amendment right to spend their money to advance the goals chosen by the elected leadership. If it violates an objecting employee’s free speech right to pay her fair share of contract negotiation and administration, why does it not equally violate the rights of the union and its members to force them to use their money to enforce the contract rights of the free rider? It can’t be the dissenting nonmember has First Amendment right not to pay for very same thing that the union and its members are required by the duty of fair representation to provide to that nonmember.

 A balanced approach to the First Amendment would reject the compelled speech claim. Contractually required fees for union representational services are no more a compelled subsidy for expressive activity than is the union’s duty to provide fair representation to all represented employees. Like insurance companies, homeowners’ associations, and utility companies, unions pool money contributed by many stakeholders and spend it to provide services and to engage in expressive activity. When they do so, they advance the interests of the entity and its stakeholders who support the action, and, sometimes, they thwart the interests of stakeholders who oppose it. But they do not violate anyone’s First Amendment rights because the speech is the entity’s, not that of the individual stakeholders.

It is important to remember that government employees have no First Amendment rights to engage in speech on the job. In Garcetti v. Ceballos, the Supreme Court held that a deputy district attorney had no First Amendment protection for writing a memo to his supervisor raising concerns about the use of possibly false police testimony in a criminal case. In Borough of Duryea v. Guarnieri, the Court held that a police chief had no First Amendment protection for complaints he made about oversight of how he did his job. Because government employees have no First Amendment right to speak to their supervisors about their working conditions, it is logically inconsistent to say they have a right not to pay the cost of such speech. The Court should not hold there is a First Amendment right to refuse to pay money to support speech that is not itself protected by the First Amendment. In all other compelled-speech cases, including its compelled-fee cases, the speech that was being compelled was protected by the First Amendment. In West Virginia Board of Education v. Barnette, the original compelled-speech case, the right to refuse to salute the flag existed because a flag salute is First Amendment speech.

One final thought about the implications of a ruling for Janus. If government employees cannot be compelled to pay their fair share of collective bargaining because the negotiation and administration of a contract is First Amendment speech, does that mean that collective bargaining is speech protected by the First Amendment? Do employees therefore have a First Amendment right to bargain collectively? Does it call into doubt content-based restrictions on which employees may bargain, such as Wisconsin enacted after Scott Walker’s election 2011 when it stripped bargaining rights from teachers but left them for police officers, or such as many states have that prevent teachers from bargaining over class size but allow them to bargain over pay? One doubts the Court would so hold. Or is the Court truly prepared to hold that the only First Amendment right government employees have regarding speech related to their working conditions is the right not to pay fees to their union?

*This is part of ACSblog's Symposium on Janus v. AFSCME

With oral argument scheduled February 26 and Justice Gorsuch on the bench, conventional wisdom is that the Supreme Court is poised to reverse forty years of precedent in Janus v. AFSCME. Janus is one piece of a longstanding campaign by conservative groups to reduce the power of unions.The desires of many conservatives to weaken unions by removing their power to collect fees from employees they are compelled by law to represent appear to have blinded them to the potential unintended consequences of Janus. A brief filed by conservative scholars, however, reveals that some are beginning to awaken to the potential for Janus to disrupt existing constitutional doctrine, the ability of government employers to control their workforces, and stable labor relations in the United States.

The uniquely American system of labor relations relies on the doctrine of exclusive representation to insure that employers will have to deal with only one union, if chosen by a majority, for each bargaining unit of employees that have similar jobs and common interests.  As a corollary, the union is required to represent all employees in the bargaining unit fairly, even if the employees choose not to join the union. Because the union is mandated to represent the employees, many states allow the union to charge nonmembers a fee for representation. In 1977, the Supreme Court upheld such fees as constitutional in Abood v. Detroit Board of Education so long as the fees were used for collective bargaining and contract administration and not for any unrelated activities of the union. Janus, however, argues that Abood must be overturned because all activities of the union, including collective bargaining and contract administration, constitute protected political speech, and the plaintiff cannot be compelled to fund such speech.

The consequences of a ruling for the plaintiff are enormous, and not just for unions. If one pillar of the labor relations system is removed, the system may disintegrate, resulting in multiple unions representing the same groups of employees, competing with one another to obtain the best contract for their members.The employer will be required to contend with several unions demanding different wages and working conditions. Further, unions and their members will have their own constitutional claims if unions are required to represent employees without compensation. The speech rights of unions and their members are impaired if they must expend resources that could otherwise be used for their own speech to represent nonmembers without compensation. Additionally, if the objecting nonmembers have a right not to associate with the union, then the union members have a corresponding right not to associate with the objectors. Also, a mandate for free representation implicates due process, for the union’s property is being taken without compensation.

A ruling that all union activity is political speech has additional ramifications. Courts have regularly ruled that states like Wisconsin can provide collective bargaining rights to some groups of employees and not others, using the rational basis test to find no equal protection violation. Similarly, courts have allowed states to provide payroll deduction to some groups and not others on the same grounds. But if all union activity is protected political speech, then these distinctions implicate fundamental rights, invoking strict scrutiny for such classifications. Thus, the differential treatment of employee groups by the states may not survive. Indeed, unions may even have an argument that there is a constitutional right to collective bargaining.

Equally unlikely to survive are many governmental employer restrictions on employee speech. A long line of cases allows government employers to impose various restrictions on employee speech. The Supreme Court distinguishes employee speech from citizen speech, permitting employers to limit and control employee speech in the interests of the government as employer. When employees speak about their own terms and conditions of employment as opposed to matters of concern to the public, employers typically prevail in cases where they have disciplined or discharged employees for their speech. A ruling in favor of the Janus plaintiffs could obliterate the distinction, requiring employers to tolerate much unwanted speech by their employees.

Finally, if Janus prevails, the case will cast doubt on many other situations where the government requires payments from individuals that are used for purposes to which they object. As scholars, unions, and indeed the Court itself, have noted, taxes, bar dues, university student fees, utility bills, insurance premiums, government pension funds, continuing education requirements for licensing, and homeowners’ association dues involve government-compelled payments, sometimes to third party organizations that may use them for lobbying or other activity objectionable to those making the payments. If such payments are open to challenge on First Amendment grounds, the Court may have opened Pandora’s box.

There is a simple way to keep Pandora’s box closed. Reject the arguments of the Janus plaintiff and reaffirm Abood, which has served the country well for more than forty years.