
Andrew Strom is a union lawyer based in New York City. He is also an adjunct professor at Brooklyn Law School.
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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September 24
The Trump administration proposes an overhaul to the H-1B process conditioning entry to the United States on a $100,000 fee; Amazon sues the New York State Public Employment Relations Board over a state law that claims authority over private-sector labor disputes; and Mayor Karen Bass signs an agreement with labor unions that protects Los Angeles city workers from layoffs.
September 23
EEOC plans to close pending worker charges based solely on unintentional discrimination claims; NLRB holds that Starbucks violated federal labor law by firing baristas at a Madison, Wisconsin café.
September 22
Missouri lawmakers attack pro-worker ballot initiatives, shortcomings in California rideshare deal, some sexual misconduct claimants prefer arbitration.
September 21
USFS and California seek to improve firefighter safety, Massachusetts pay transparency law to take effect, and Trump adds new hurdles for H-1B visa applicants
September 19
LIRR strike averted; DOJ sues RI over student loan repayment program; University of California employees sue Trump for financial coercion
September 18
Senate Democrats introduce a bill to nullify Trump’s executive orders ending collective bargaining rights for federal employees; the Massachusetts Teachers Association faces backlash; and Loyola Marymount University claims a religious exemption and stops recognizing its faculty union.