Will Baude at The Volokh Consipracy has a good piece on the Supreme Court’s decision to review Harris v. Quinn. The question raised in Harris is whether the “fair share” provision contained in a collective bargaining agreement between a union of homecare workers and the state of Illinois – a provision that requires workers to pay fees to cover collective bargaining and contract administration costs – is constitutional. The Court has approved of these types of agreements since, at least, its decision in Abood v. Detroit Board of Education.
Baude suggests that if the Court is going to use Harris to revisit Abood it ought to reconsider “both sides” of Abood. The Court, that is, should consider not just whether Abood “provide[s] enough protection for speech” but also whether fair share agreements raise a First Amendment question “in the first place.” Baude’s suggestion is that they may not.
But I want to expand on another point that the post raises. As Baude points out, the Court’s recent decision in Knox v. SEIU deems the approval of fair share agreements a First Amendment “anomaly.” In support of this proposition, Knox includes this quote from Clyde Summers:
If a community association engages in a clean-up campaign or opposes encroachments by industrial development, no one suggests that all residents or property owners who benefit be required to contribute. If a parent-teacher association raises money for the school library, assessments are not levied on all parents. If an association of university professors has as a major function bringing pressure on universities to observe standards of tenure and academic freedom, most professors would consider it an outrage to be required to join. If a medical association lobbies against regulation of fees, not all doctors who share in the benefits share in the costs.
The suggestion, of course, is that community associations and parent-teacher associations are analogous to unions, and just as we wouldn’t permit the state to compel payments to community associations we shouldn’t permit the state to compel payments to unions.
What Knox misses, however, and what this quote misses too, is the fundamental distinction between community associations and parent-teacher associations, on the one hand, and unions on the other. The fundamental distinction is this: unions, unlike these other groups, have a statutory obligation to provide representation to all the workers in a relevant bargaining unit, even workers who choose not to become members of the union. This duty means not only that unions must treat members and non-members equally when unions negotiate a collective bargaining agreement, it also means that unions have to grieve and arbitrate just as zealously (and expensively) on behalf of non-members as they do on behalf of members. [In Illinois, where Harris takes place, this statutory obligation is found at 5 ILCS 315/16(d).]
It is this obligation – an obligation that distinguishes unions from all these other types of associations – that has led the Court to approve agreements requiring workers to pay dues to the union (so long, to be clear, as the required payments are limited to those necessary to support the union’s collective bargaining and contract administration functions, and don’t fund political activity).
An excellent statement of this proposition comes from Justice Scalia’s concurrence in Lehnert v. Ferris Faculty Ass’n. Here is how Justice Scalia put it:
Our First Amendment jurisprudence recognizes a correlation between the rights and the duties of the union, on the one hand, and the nonunion members of the bargaining unit, on the other. Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them; or, looked at from the other end, where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost. The ‘compelling state interest’ that justifies this constitutional rule is not simply elimination of the inequity arising from the fact that some union activity redounds to the benefit of ‘free-riding’ nonmembers; private speech often furthers the interests of nonspeakers, and that does not alone empower the state to compel the speech to be paid for. What is distinctive, however, about the ‘free riders’ who are nonunion members of the union’s own bargaining unit is that in some respects they are 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. In the context of bargaining, a union must seek to further the interests of its nonmembers; it cannot, for example, negotiate particularly high wage increases for its members in exchange for accepting no increases for others. Thus, the free ridership (if it were left to be that) would be not incidental but calculated, not imposed by circumstances but mandated by government decree.
This is precisely the situation in Harris v. Quinn.