Friedrichs and Broccoli


Published December 1st, 2015 - 12.01.1530


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?

Similarly, if the Friedrichs plaintiffs want to take advantage of the employer-subsidized health insurance they are offered, they have to pay a share of the premiums.  Those premiums go to health insurance companies that engage in extensive lobbying and political speech.  According to the National Institute on Money in State Politics, Anthem Blue Cross of California has made $24 million dollars in political contributions over the past 19 years.  This is in addition to millions of dollars the health insurer spends on lobbying and other advocacy.

As taxpayers, the Friedrichs plaintiffs are forced to fund even more speech that they find objectionable.  They have suggested that they may disagree with their union about whether teachers should receive higher pay based on longevity, but what if a school district hired a consultant who advised adoption of a similar policy?  Would that raise a First Amendment issue for taxpayers who prefer a different compensation system?

In other words, if the Supreme Court starts treating all spending as speech, then it will face a lot more claims from individuals who have to pay for broccoli even though they would prefer brownies.

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