Guest Post: Do Arguments Against Fair Share Fees Make it Harder for the Government to Privatize Services?

Andrew Strom

Andrew Strom is an Associate General Counsel of Service Employees International Union, Local 32BJ in New York, NY.

Andrew Strom is Associate General Counsel of SEIU Local 32BJ.

Almost forty years ago, in Abood v. Detroit Bd. of Ed., the Supreme Court held that public sector employees cannot be required to pay union dues as a condition of maintaining their employment, but they can be required to pay fair share fees to cover the cost of negotiating and enforcing collective bargaining agreements. Then, last year, in Harris v. Quinn, the Court carved out an exception to this rule for home care workers on the grounds that they were not “full-fledged public employees,” and at the same time, the Court majority described this previously settled body of law as “questionable on several grounds.”

Emboldened by Harris v. Quinn, the plaintiffs in Friedrichs v. California Teachers Assn. are asking the Court to overturn Abood, and hold that a state violates the First Amendment rights of workers even by requiring them to pay fair share fees to cover collective bargaining. The attacks on the constitutionality of fair share fees make it a good time to step back and understand why there is even a First Amendment issue here, and what broader implications the First Amendment argument may have. Abood is based on an earlier case holding that “if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.” In Abood, the Court recognized that public employees who disagree with the union that represents them are “free to participate in the full range of political activities open to other citizens.” So, in that sense they are neither penalized nor inhibited from exercising their constitutionally protected rights of speech and association. Instead, the infringement on those rights comes from requiring the employee to fund an entity that engages in speech that the individual finds objectionable.

The plaintiffs in Friedrichs argue that the Abood Court was wrong to distinguish between collective bargaining and other activities engaged in by unions. Instead, they argue that in the public sector, collective bargaining is inherently political, and thus, they should not be required to fund the union’s collective bargaining operations as a condition of maintaining their employment. Of course, in Abood, the Court acknowledged that virtually all activities of public sector unions “may be properly termed political.” The Court went on to point out that the First Amendment also protects “expression about philosophical, social, artistic, economic, literary, or ethical matters,” and thus, the key inquiry should not be whether you can attach the label “political” to the activities at issue.

So far, those who advocate for overturning Abood haven’t spent much time addressing whether employment should be treated differently from other benefits or opportunities provided by the government. But, if the Court accepts the argument that the government may never condition the granting of a benefit on providing financial support to an entity that engages in expressive activity that an individual finds objectionable, then a decision overturning Abood could have unexpected and wide-ranging implications. For instance, consider the question of access to national parks. If you want to visit Alcatraz Island, you must pay $30.00 to Alcatraz Cruises, a private ferry service. It’s not clear where the money goes, but according to a sustainability report issued by the company in 2012, some of that money went to the purchase of renewable energy credits and other money went toward the production of on-site renewable energy. Surely not everyone who visits Alcatraz supports these initiatives. If people can’t be required to pay fair share fees to a union in order to have access to public employment, then it is not clear how they could be required to pay fees to Alcatraz Cruises in order to visit a national park.

The same argument applies whenever the government requires individuals to pay money to a private vendor in order to take advantage of government services. Consider the Medicare Prescription Drug Plan, known as Part D. According to a 2011 Congressional Budget Office report, beneficiaries receive a federal subsidy of about three quarters of the costs of the basic benefit, but in order to access these benefits, they must pay private insurance companies the remaining twenty-five percent of the premium. These insurance companies obviously engage in a great deal of free speech activity on important and potentially controversial issues. If an individual objects to the speech engaged in by the insurance company providing their Part D benefit, does that raise a serious First Amendment issue?

The group behind the Friedrichs case is the Center for Individual Rights, which states on its website that its “seeks to restore a principled conception of limited government.” It would be ironic if its success in Friedrichs ended up being used as an argument against privatization of public services.

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