Are unions a constitutional anomaly?

• Author: Estlund, Cynthia
• Position: Abstract through II. The Anomalous Quid Pro Quo at the Heart of Labor Law A. The Quid and the Quo in the NLRA's Treatment of Labor Unions 1. The Unusual Powers of the Unions Under Federal Labor Law, p. 169-199

This term in Friedrichs v. California Teachers Ass'n, the Supreme Court will consider whether ordinary public employees may constitutionally be required to pay an "agency fee," as a condition of employment, to the union that represents them in collective bargaining. The Court established the terms of engagement in the 2014 decision Harris v. Quinn, which struck down an agency fee on narrower grounds while describing the current doctrine approving agency fees, blessed many times by the Court itself, as an "anomaly." This Article asks whether labor unions are themselves anomalies in our legal system, particularly in their constitutional entitlements. Its answer is a qualified and complicated "yes."

Unions are indeed distinct in our legal system--distinct even among private entities with public regulatory functions, which have frequently provoked constitutional controversy. On the one hand, unions are voluntary associations of workers with constitutional entitlements to freedom of expression and associational autonomy. On the other hand, unions are both regulated and regulatory actors within a statutory scheme that sets them far apart from other voluntary associations. They are subject to a sui generis constellation of rights, powers, restrictions, and duties--a quid pro quo that both constrains and empowers unions, and that is embodied in the paradigmatic case that is the central focus here, in the National Labor Relations Act, the Taft-Hartley Act, and the Landrum-Griffin Act. Whatever the wisdom of that quid pro quo-- and it has been criticized from both ends of the political spectrum--it provides an essential context for adjudicating constitutional claims by and against unions.

This Article calls for reframing those constitutional claims to include both the quid and the quo of labor law--not only the alleged burdens that the labor laws impose on unions or individuals, but also any logically linked benefits or powers it confers on the claimant. If the alleged burden is logically linked to some corresponding benefit or power, the latter may offset or justify the former, and lower the level of constitutional scrutiny required. Rigorous attention to both the additions to and subtractions from unions' entitlements under the labor laws, along with a cautious approach to the threshold question of state action, is necessary to preserve the residual yet fundamental autonomy interests of unions. The proposed analysis recasts not only the agency fee controversy and the related puzzle posed by state "right-to-work" laws, but also recurring challenges to the constitutionality of restrictions on union expression and recent efforts to bring "worker centers" under the umbrella of labor law. At the same time, it offers clues to the future of unions and labor law if the Court continues down the path foreshadowed in Harris.

TABLE OF CONTENTS INTRODUCTION I. PUTTING THE AGENCY FEE CONTROVERSY IN CONTEXT A. A Short History of the Long Campaign Against Union Security B. Harris v. Quinn, and Some Paradoxes in the Agency Fee Debate C. What Unions Are Not: The Limited Value of Analogies II. THE ANOMALOUS QUID PRO QUO AT THE HEART OF LABOR LAW A. The Quid and the Quo in the NLRA's Treatment of Labor Unions 1. The Unusual Powers of Unions Under Federal Labor Law 2. The Unusual Restrictions on Unions 3. Union Autonomy, Freedom of Association, and State Action 4. The Quid Pro Quo in Public Sector Labor Law B. Why Are Unions Anomalous (in the United States and Beyond)? III. REFRAMING CONSTITUTIONAL CLAIMS BY AND AGAINST UNIONS A. Expanding the Frame of Constitutional Analysis B. Some Applications 1. Revisiting the Agency Fee Problem 2. Reconsidering the Anomaly of State "Right-to-Work" Laws 3. Rethinking the Constitutionality of Restrictions on Peaceful Labor Picketing 4. Worker Centers as Labor Organizations? The Quid Without the Quo C. The Future of the Quid Pro Quo and of Unions CONCLUSION INTRODUCTION

This term in Friedrichs v. California Teachers Ass'n (1) the Supreme Court will consider whether ordinary public employees may constitutionally be required to pay an "agency fee," as a condition of employment, to the union that represents them in collective bargaining. The Court established the terms of engagement in 2014 in Harris v. Quinn, (2) which struck down an agency fee provision on narrower grounds, but which expanded the "right to refrain" from associating with unions and raised the specter of constitutionalizing the "right-to-work" regime that now prevails in nearly half the states. Along the way, the Court proclaimed the current agency fee regime, blessed many times by the Court itself, to be an "anomaly." This Article takes that observation as a point of departure for a broader inquiry into whether labor unions are themselves anomalies in our legal system, particularly in their constitutional entitlements. The answer is a qualified and complicated "yes."

It is important not to overstate the anomaly, for unions belong to a larger category of private entities with public regulatory functions. (3) As Professor Louis Jaffe observed in 1937, the legislature "has neither the personnel nor the information to provide the detailed day-by-day regulation which is necessary if regulation is to be responsive to complex, ever changing situations." (4) Nor are administrative bodies always up to the job. Rather, "[g]roup self-government" by regulated actors can better solve some problems--for "experience and experiment lie immediately at hand"--and better satisfy demands for participation and self-expression in a complex democratic society. (5) The New Deal launched a number of experiments in group self-government, some short-lived, others more enduring. (6) More recently, much modern regulatory scholarship has converged around the notion of "regulated self-regulation," and the importance of engaging both targets and beneficiaries of regulation--mostly private corporations and private associations--in the regulatory enterprise. (7) Labor law, in which collective bargaining between unions and employers partially supplants direct regulation of terms and conditions of employment, was and is a leading exemplar of regulated self-regulation through private groups. (8)

Constitutional controversy has periodically flared over public regulatory structures in which private groups play a leading role. (9) The controversy peaked in the mid-1930s when the Court blew up central components of the early New Deal partly because of improper delegation of legislative power to private groups. (10) But even after the New Deal "switch in time," public regulatory schemes in which private institutions play central roles have drawn constitutional scrutiny. (11) Examples include vestiges of New Deal-style corporatism, such as state-backed trade associations; (12) venerable vessels of professional self-regulation, such as the integrated bar associations that regulate lawyers in many states; (13) and innovative adjuncts to urban government, such as "business improvement districts" that represent, tax, and regulate local businesses. (14)

One constitutional challenge to some of these public-private regulatory schemes is that they violate a First Amendment right to refrain from associating with private organizations and from contributing to their expressive activities. (15) The single biggest target of these First Amendment challenges, and a recurring source of constitutional litigation from the New Deal to the present, has been organized labor. Under U.S. labor laws, unions typically represent not only their own members but also some nonmembers of the union, some of whom object to paying dues or fees that may be required of them as a condition of employment. Those objectors have contributed to and benefited from an expanding constitutional right to refrain from what they claim is compelled association and expression.

For private entities with public regulatory functions, it may be inevitable that those regulatory functions come with powers, responsibilities, and restrictions that would otherwise be intolerable, or at least anomalous, for voluntary associations in a free society. But that is about as far as generalities will take us in understanding the nature of labor unions for purposes of constitutional adjudication. Unions are unlike other organizations in our society, even other private groups exercising public regulatory functions. Very simply, context matters, and it should matter in adjudicating constitutional challenges that arise from the mix of public and private power in the labor setting, just as it should in other settings. This Article contends for what Professor Pildes calls "institutional realism" (16) in the constitutional review of claims by and against labor unions. Pildes addresses the constitutional status of public institutions such as courts and administrative agencies, (17) but the virtues of realism versus formalism apply when analyzing private institutions that play a central role in public regulatory schemes. Institutional realism in the labor law context requires courts to grapple with the institutional particularities of labor unions and labor law. (18)

Unions are voluntary membership associations with a long history of independent activism, a foundational claim to organizational autonomy, and constitutional rights to freedom of speech and association. (19) They were central protagonists in the epic industrial conflict that roiled American society for much of the past century, and they were also central to its settlement. (20) By virtue of that settlement, unions became regulatory actors, as well as regulated actors, in the administration of industrial relations and became subject to a constellation of powers, privileges, duties, and restrictions unique to labor relations.

Labor law both restricts and empowers labor unions in ways that set them apart from other voluntary associations. (21) Consider the current controversy over...