Unions today are under First Amendment fire, with the compelled speech doctrine as the weapon of choice. Conservative interests are waging a legal war against agreements that include "fair-share service fees, " under which public-sector unions are permitted to charge nonunion members to pay their share of the costs of collective bargaining. Espousing libertarian theories of free speech doctrine, an array of conservative-funded litigants maintain that fair-share service fees, at least in the context of public-sector unions, constitute a form of political speech, and that laws mandating their payment by nonunion members violate the First Amendment's prohibition against compelled speech. The Supreme Court is poised to accept this position, having granted certiorari in Janus v. American Federation of State, County & Municipal Employees, Council 31, a case that threatens to overrule the Court's longstanding acceptance of the constitutionality of fair-share service fees.
Notwithstanding the superficial appeal of the compelled speech argument, this Article argues that pro-union interests have plenty of cover within the First Amendment's freedom of association doctrine. Viewing Janus and its ilk through an associational lens demonstrates the fallacies that lie behind doubts concerning the constitutionality of such agreements. Although it is doubtful that the Supreme Court will reaffirm the constitutionality of fair-share service fees this term, it is important to air such arguments in order to head off potentially even more significant First Amendment attacks on unionism that are currently underway and to articulate a theory of the First Amendment that remains consistent with the basic New Deal compromise that leaves matters regarding labor policy to our legislatures, where they belong.
Unions, once a pillar of modern civil society, are under attack in both legislatures and courts. For several years now, conservative interests have been on a renewed mission to undermine the ability of workers (particularly public-sector workers) to unionize, largely in recognition of the effectiveness of unions in politics. (1)
Legislative efforts, funded by the Koch network and facilitated by the American Legislative Exchange Council (ALEC), have resulted in a variety of statutes seeking to curtail the economic and political power of unions, occasionally even in states where public support for unions is high. (2) The Wisconsin Budget Repair Bill of 2011, which significantly restricted the collective bargaining rights of the state's "general employees," was atypical only insofar as it prompted massive public protests against Governor Scott Walker for his role in backing it. (3) Collectively, these efforts comprise the newest iteration of an impassioned debate about the value of unionism, a debate that has been ongoing since the adoption of the National Labor Relations Act in 1935. (4)
Not satisfied with these legislative wins, conservative interests are now seeking to constitutionalize their gains. State laws allowing public-sector unions to bargain for contracts that permit nonunion employees to be charged what are known as "fair-share service fees" have come under particular First Amendment fire. (5) While such laws do not permit collective bargaining agreements that mandate union membership as a condition of employment, they do authorize unions to bargain for contracts in which those employees who opt out of union membership must still contribute to the costs of the union's employment-related representation, including its collective bargaining. (6) These charges arise because states, including California and Illinois, require unions to represent members and nonmembers equally and fairly as a condition of the right to be an exclusive representative of the unit. (7) From the union's perspective, these agreements, known as "agency shops," are justifiable on the grounds that nonunion employees should not be permitted to free ride on the union's statutorily mandated, employment-related bargaining, which benefits both union and nonunion employees alike.
While the constitutionality of fair-share service fees has long been settled, (8) conservative litigants, emboldened by a series of Roberts Court opinions espousing libertarian theories of free speech doctrine, (9) contend that requiring nonunion employees in the public sector to pay their portion of the cost of a union's employment-related representation constitutes compelled speech in violation of the First Amendment. (10) This term, the conservatives are poised to succeed. In granting certiorari in Janus v. American Federation of State, County & Municipal Employees, Council 31, a case initially brought by the Governor of Illinois, but now being litigated by three state employees, the Supreme Court has taken up the invitation to strike down agency-shop arrangements."
Notwithstanding the superficial appeal of the compelled speech argument, this Article argues that existing freedom of association doctrine provides plenty of cover for the unions. Neither First Amendment doctrine nor principle dictates a finding that agency-shop arrangements are unconstitutional for public-sector workers--and this is not simply because the Supreme Court upheld these arrangements forty years ago in Abood v. Detroit Board of Education. (12)
Indeed, viewing Janus and its ilk through an associational lens brings into sharp relief the fallacies that lie behind doubts concerning the constitutionality of fair-share service fees. The associational angle remains important regardless of the outcome in Janus, because a favorable ruling for the petitioner in Janus is just the beginning. (13) A second thread of anti-union litigation, in the lower courts, has set its sights on reversing the constitutionality of state-sanctioned exclusive bargaining units. (14)
It therefore remains critical to elucidate the ways in which both existing freedom of association doctrine and fundamental First Amendment principles support the constitutionality of state-sanctioned exclusive bargaining units. Doing so, moreover, offers a much-needed opportunity to push back on both the libertarian (15) and managerial tendencies of the Roberts Court (16) while drawing out two friendly amendments to Professor Magarian's provocative account of dynamic diversity. (17) The first is a nudge to recognize the mechanics of politics. The second, and possibly more fundamental, is a caution to remember that the First Amendment is not an end in itself.
Certainly, as Professor Magarian eloquently explains "self-government requires [a] constant debate"--one which is boisterous and inclusive of a broad array of citizens. (18) A functioning democracy, however, requires more than boisterous discourse. It also requires a plurality of representative and participatory organizations capable of translating that discourse into the rough-and-tumble of politics in which the ultimate goal is political responsiveness from our policymaking bodies.
The freedom of speech and the freedom of association, moreover, are protected to ensure such politics--to ensure, that is, "that the political process by which those legislative judgments are made is an open one." (19) In other words, they do not function to take certain issues or modes of regulation off the legislative agenda (e.g., speech regulation)--unlike the Reconstruciton Amendments. Instead, they seek to ensure the conditions necessary such that the full range of policy possibilities are capable of making it onto the legislative agenda, where there is sufficient support.
Ultimately, these two friendly amendments, like the arguments made below, are driven by the central commitment of our liberal democracy--namely, that fundamental and fraught political debates (including those about the merits of unionism) should be left to the political process in Congress and in the states--where they belong. Unions may or may not be a good thing. Conservatives view public-sector unions as self-serving and rent-seeking. Progressives see them as the last bastion of middle-class power. The First Amendment's function, however, is not to end political debate.
To the degree that a ruling in favor of the petitioner in Janus seeks to put an end to political debate about labor policies by constitutionalizing the viewpoint of right-to-work advocates, it is clearly in error. None of the state practices supporting unionism that have been challenged on First Amendment grounds threaten the ability of right-to-work advocates to get a fair shake in the political process. Indeed, recent right-to-work legislative successes are prima facie evidence vindicating not only our democratic process but also the value of federalism as a mechanism for accommodating diverse preferences. (20) The First Amendment requires that pro-union forces be afforded the same political opportunities.
FIRST AMENDMENT COVER AND THE FREEDOM OF ASSOCIATION
The Constitutionality of Fair-Share Service Fees
Existing First Amendment doctrine does not require a finding that agency-shop arrangements in the public-sector are unconstitutional. Indeed, existing freedom of association doctrine effectively precludes a win for these plaintiffs, revealing the fallacies of the alleged compelled speech argument that has been offered. The First Amendment objections to fair-share service fees are predicated on a bait-and-switch (speech for association)--one that is facilitated by a jurisprudence that is insufficiently attentive to the differences between these two cognate First Amendment rights. (21)
Contemporary challenges to fair-share services fees, like the challenge at issue in Abood--the precedent that conservatives seek to overturn--are, at bottom, claims of alleged compelled association. Despite efforts to distract the Court with a variety of references to the compelled speech doctrine, nonunion members' primary objection to the agency shops has...