Compelled Subsidization Doctrine
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
It is to be expected that disputes will arise between an organization and some of its members, and that First Amendment principles may be implicated. Of course, unless there is some governmental connection, there will be no federal constitutional application to any such controversy.1 But, in at least some instances, when government compels membership in an organization or in some manner lends its authority to such compulsion, there may be constitutional limitations. For example, such limitations can arise in connection with union shop labor agreements permissible under the National Labor Relations Act and the Railway Labor Act.2
Union shop agreements generally require, as a condition of employment, membership in the union on or after the thirtieth day following the beginning of employment. In Railway Employes' Dep’t v. Hanson, the Supreme Court upheld the constitutionality of such agreements, noting that the record in the case did not indicate that union dues were being “used as a cover for forcing ideological conformity or other action in contravention of the First Amendment,” such as by being spent to support political candidates.3 In International Ass’n of Machinists v. Street, where union dues had been collected pursuant to a union shop agreement and had been spent to support political candidates, the Court avoided the First Amendment issue by construing the Railway Labor Act to prohibit the use of compulsory union dues for political causes.4
The Supreme Court held in Janus v. American Federation of State, County, and Municipal Employees, Council 31, that “public sector agency-shop arrangements violate the First Amendment,” 5 overruling a forty-year old precedent, Abood v. Detroit Board of Education, that had generally approved of such arrangements.6 However, even Abood itself had only permitted some aspects of compelled fee regimes,7 and the Court had, for years prior to Janus, signaled its growing discomfort with Abood.8 Understanding the historical course of the jurisprudence governing compelled agency fees is important to understand the ramifications of Janus.
In Abood v. Detroit Bd. of Education,9 the Court found Hanson and Street applicable to the public employment context.10 Recognizing that any system of compelled support restricted employees' right not to associate and not to support, the Court nonetheless found the governmental interests served by an “agency shop” agreement11 —the promotion of labor peace and stability of employer-employee relations—to be of overriding importance and to justify the impact upon employee freedom.12 But the Court drew a different balance when it considered whether employees compelled to support the union were constitutionally entitled to object to the use of those exacted funds to support political candidates or to advance ideological causes not germane to the union’s duties as collective-bargaining representative. To compel one to expend funds in such a way is to violate his freedom of belief and the right to act on those beliefs just as much as if government prohibited him from acting to further his own beliefs.13 The remedy, however, was not to restrain the union from making non-collective-bargaining-related expenditures, but was to require that those funds come only from employees who do not object. Therefore, the lower courts were directed to oversee development of a system under which employees could object generally to such use of union funds and could obtain either a proportionate refund or a reduction of future exactions.14 Later, the Court further tightened the requirements. A proportionate refund is inadequate because “even then the union obtains an involuntary loan for purposes to which the employee objects” ;15 an advance reduction of dues corrects the problem only if accompanied by sufficient information by which employees may gauge the propriety of the union’s fee.16 Therefore, the union procedure must also “provide for a reasonably prompt decision by an impartial decisionmaker.” 17
In Davenport v. Washington Education Ass'n,18 the Court noted that, although Chicago Teachers Union v. Hudson had “set forth various procedural requirements that public-sector unions collecting agency fees must observe in order to ensure that an objecting nonmember can prevent the use of his fees for impermissible purposes,” 19 it “never suggested that the First Amendment is implicated whenever governments place limitations on a union's entitlement to agency fees above and beyond what Abood and Hudson require. To the contrary, we have described Hudson as 'outlin[ing] a minimum set of procedures by which a [public-sector] union in an agency-shop relationship could meet its requirements under Abood.'” 20 Thus, the Court held in Davenport that the State of Washington could prohibit “expenditure of a nonmember's agency fees for election-related purposes unless the nonmember affirmatively consents.” 21 The Court added that “Washington could have gone much further, restricting public-sector agency fees to the portion of union dues devoted to collective bargaining. Indeed, it is uncontested that it would be constitutional for Washington to eliminate agency fees entirely.” 22
And then, in Knox v. Service Employees International Union,23 the Court did suggest constitutional limits on a public union assessing political fees in an agency shop other than through a voluntary opt in system. The union in Knox had proposed and implemented a special fee to fund political advocacy before providing formal notice with an opportunity for non-union employees to opt out. Five Justices characterized agency shop arrangements in the public sector as constitutionally problematic in the first place, and, then, charged that requiring non-union members to affirmatively opt out of contributing to political activities was “a remarkable boon for unions.” Continuing to call opt-out arrangements impingements on the First Amendment rights of non-union members, the majority more specifically held that the Constitution required that separate notices be sent out for special political assessments that allowed non-union employees to opt in rather than requiring them to opt out.24 Two concurring Justices, echoed by the dissenters, heavily criticized the majority for reaching “significant constitutional issues not contained in the questions presented, briefed, or argued.” Rather, the concurrence more narrowly found that unions may not collect special political assesments from non-union members who earlier objected to nonchargeable (i.e., political) expenses, and could only collect from nonobjecting nonmembers after giving notice and an opportunity to opt out.25
Doubts on the constitutionality of mandatory union dues in the public sector intensified in Harris v. Quinn.26 The Court openly expressed reservations on Abood's central holding that the collection of an agency fee from public employees withstood First Amendment scrutiny because of the desirability of “labor peace” and the problem of “free ridership.” Specifically, the Court questioned (1) the scope of the precedents (like Hanson and Street) that the Abood Court relied on; (2) Abood's failure to appreciate the distinctly political context of public sector unions; and (3) Abood's dismissal of the administrative difficulties in distinguishing between public union expenditures for collective bargaining and expenditures for political purposes.27 Notwithstanding these concerns about Abood's core holding, the Court in Harris declined to overturn Abood outright. Instead, the Court focused on the peculiar status of the employees at issue in the case before it: home health care assistants subsidized by Medicaid. These “partial-public employees” were under the direction and control of their individual clients and not the state, had little direct interaction with state agencies or employees, and derived only limited benefits from the union.28 As a consequence, the Court concluded that Abood,'s rationale—the labor peace and free rider concerns—did not justify compelling dissenting home health care assistants to subsidize union speech.29
In Janus v. American Federation of State, County, and Municipal Employees, Council 31, the Supreme Court formally overruled Abood and held “that public sector agency-shop arrangements violate the First Amendment.” 30 The Court rejected the governmental interests said to justify the compelled fees in Abood holding that labor peace can be achieved through less restrictive means and that the government does not have a “compelling interest” in avoiding free riders.31 The majority opinion criticized Abood''s extension of Hanson and Street, saying neither of those cases “gave careful consideration to the First Amendment” and arguing that Abood's reliance on those cases led it to apply an overly deferential standard to analyze public-sector agency fee arrangements.32 In the Court's view, granting too much deference to legislative judgments about the strength of asserted government interests or about whether the challenged action truly supports those interests “is inappropriate in deciding free speech issues.” 33 The Court also disagreed with additional justifications said to justify the agency-shop arrangements, notably holding that they could not be upheld under Pickering v. Board of Education,34 a case in which the Court acknowledged that public employers may sometimes place certain restrictions on employees' speech.35 Accordingly, after Janus, “States and public-sector unions may no longer extract agency fees from nonconsenting employees.” 36
In Ysursa v. Pocatello Education Ass'n,37 the Court upheld an Idaho statute that prohibited payroll deductions for union political activities. Because the statute did not restrict political speech, but merely declined to subsidize it by providing for payroll deductions, the state did not abridge the union's First Amendment right and therefore could justify the ban merely by demonstrating a rational basis for it. The Court found that it was “justified by the State's interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics.” 38
The Court has held that a labor relations body may not prevent a union member or employee represented exclusively by a union from speaking out at a public meeting on an issue of public concern, simply because the issue was a subject of collective bargaining between the union and the employer.39
- The Labor Management Reporting and Disclosure Act of 1959, 73 Stat. 537, 29 U.S.C. §§ 411-413, enacted a bill of rights for union members, designed to protect, among other things, freedom of speech and assembly and the right to participate in union meetings on political and economic subjects.
- Section 8(a)(3) of the Labor-Management Relations Act of 1947, 61 Stat. 140, 29 U.S.C. § 158(a)(3), permits the negotiation of union shop agreements. Such agreements, however, may be outlawed by state “right to work” laws. Section 14(b), 61 Stat. 151, 29 U.S.C. § 164(b). See Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949); AFL v. American Sash & Door Co., 335 U.S. 538 (1949). In industries covered by the Railway Labor Act, union shop agreements may be negotiated regardless of contrary state laws. 64 Stat. 1238, 45 U.S.C. § 152, Eleventh; see Railway Employes' Dep’t v. Hanson, 351 U.S. 225 (1956).
- 351 U.S. 225, 238 (1956).
- 367 U.S. 740, 749–50 (1961). Justices Douglas, Black, Frankfurter, and Harlan would have reached the constitutional issue, with differing results. On the same day that it decided Street, the Court, in Lathrop v. Donohue, 367 U.S. 820 (1961), declined to reach the constitutional issues presented by roughly the same fact situation in a suit by lawyers compelled to join an “integrated bar.” These issues, however, were faced squarely in Keller v. State Bar of California, 496 U.S. 1, 14 (1990), which held that an integrated state bar may not, against a members’ wishes, devote compulsory dues to ideological or other political activities not “necessarily or reasonably related to the purpose of regulating the legal profession or improving the quality of legal service available to the people of the State.”
- 585 U.S. ___, No. 16-1466, slip op. at 33 (2018).
- 431 U.S. 209, 229 (1977).
- Id. at 235.
- See, e.g., Harris v. Quinn, 573 U.S. ___, No. 11-681, slip op. (2014). In Friedrichs v. California Teachers Association the Court was equally divided on the question of whether to overrule Abood. 578 U.S. ___, No. 14-915, slip op. at 1 (2016).
- 431 U.S. 209 (1977).
- That a public entity was the employer and the employees consequently were public employees was deemed constitutionally immaterial for the application of the principles of Hanson and Street, id. at 226–32, but, in a concurring opinion joined by Chief Justice Burger and Justice Blackmun, Justice Powell found the distinction between public and private employment crucial. Id. at 244.
- An agency shop agreement requires all employees, regardless of union membership, to pay a fee to the union that reflects the union's efforts in obtaining employment benefits through collective bargaining. The Court in Abood noted that it is the “practical equivalent” of a union shop agreement. 431 U.S. at 217 n.10.
- 431 U.S. at 217–23. For a similar argument over the issue of corporate political contributions and shareholder rights, see First National Bank v. Bellotti, 435 U.S. 765, 792–95 (1978), and id. at 802, 812–21 (Justice White dissenting).
- 431 U.S. at 232–37.
- 431 U.S. at 237–42. On the other hand, nonmembers may be charged for such general union expenses as contributions to state and national affiliates, expenses of sending delegates to state and national union conventions, and costs of a union newsletter. Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991). A local union may also charge nonmembers a fee that goes to the national union to pay for litigation expenses incurred on behalf of other local units, but only if (1) the litigation is related to collective bargaining rather than political activity, and (2) the litigation charge is reciprocal in nature, i.e., other locals contribute similarly. Locke v. Karass, 129 S. Ct. 798, 802 (2009).
- Ellis v. Brotherhood of Railway, Airline & Steamship Clerks, 466 U.S. 435, 444 (1984).
- Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986).
- 475 U.S. at 309.
- 551 U.S. 177 (2007).
- 551 U.S. at 181, citing 475 U.S. 292, 302, 304–310 (1986).
- 551 U.S. at 185, quoting Keller v. State Bar of Cal., 496 U.S. 1, 17 (1990), and adding emphasis.
- 551 U.S. at 184.
- 551 U.S. at 184 (citations omitted).
- 567 U.S. ___, No. 10-1121, slip op. (2012) .
- Id. at 17 (Alito, J., joined by Roberts, C.J., and by Scalia, Kennedy, and Thomas, JJ.).
- 567 U.S. ___, No. 10-1121, slip op. (2012) (Sotomayor, J., joined by Ginsburg, J., concurring).
- 573 U.S. ___, No. 11-681, slip op. (2014).
- Id. at 8–20.
- Id. at 24–27.
- Id. at 27.
- 585 U.S. ___, No. 16-1466, slip op. at 33 (2018).
- Id. at 12–13.
- Id. at 36.
- Id. at 37.
- 391 U.S. 563 (1968).
- Janus, slip op. at 26.
- Id. at 48.
- 129 S. Ct. 1093 (2009).
- 129 S. Ct. at 1098. The unions had argued that, even if the limitation was valid as applied at the state level, it violated their First Amendment rights when applied to local public employers. The Court held that a political subdivision, “created by the state for the better ordering of government, has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator.” Id. at 1101, quoting Williams v. Mayor of Baltimore, 289 U.S. 36, 40 (1933).
- Madison School Dist. v. WERC, 429 U.S. 167 (1977).
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