The more I think about the Friedrichs case, the more I am reminded of broccoli. Remember how the opponents of the Affordable Care Act kept going on about broccoli? If the government could make you buy health insurance, then couldn’t the government also force you to buy broccoli? The implication was that this would be some sort of outrageous infringement upon personal autonomy. Unfortunately, defenders of the Affordable Care Act tended to avoid addressing this argument directly. The Obama Administration lawyers argued strenuously that health insurance is not the same as broccoli, but they never challenged the premise that the federal government can’t require us to buy broccoli. In fact, the federal government already compels us to buy broccoli and a ton of other fruits and vegetables. The government spends tax dollars on school lunches, military meals, agricultural research, crop insurance subsidies, and the White House garden, to name some of the more obvious ways that taxpayers are forced to pay for broccoli.
The Friedrichs plaintiffs object to paying money to the union that represents them because they disagree with some of the union’s public policy positions. But, as government employees, the Friedrichs plaintiffs routinely fund speech on public policy that they may disagree with. For instance, the pension fund covering California public school teachers maintains a series of investment policies, and each policy contains implicit and in some cases, explicit, political judgments. To take one example, there is a policy addressing how the pension fund will respond to divestment requests. As participants in the pension plan, the Friedrichs plaintiffs are funding this speech. Furthermore, it’s not possible for a pension fund to avoid making public policy choices. Any investment decision is political in a sense, and not just because corporations use their treasuries to engage in political speech. Refusing to consider the environmental consequences of an investment is as much a political decision as taking into account the investment’s potential impact on the environment. If they win their case at the Supreme Court will the Friedrichs plaintiffs claim a First Amendment right to a rebate of all administrative fees their pension fund incurs?