Maggie McKinley is Climenko Fellow and Lecturer on Law at Harvard Law School.

We often forget that the First Amendment codifies more than just speech protections.  That amendment contains a bundle of rights, including the often-forgotten rights to petition and associate.  The agency fee doctrine is similarly bundled.

Under the agency fee doctrine, we worry that the government will violate an individual’s rights when the government forces that individual to engage indirectly in constitutionally protected activity—most often, to speak, associate, or petition—by forcing her to pay the union dues that subsidize that activity.  When the government requires an individual to pay dues to the union that the union uses to speak—by creating pro-Hillary Clinton advertising, for example—we look to the Speech Clause doctrine to verify whether the individual’s rights are violated.  The Speech Clause is especially concerned with core electoral speech and so the agency fee doctrine is especially concerned also.

Where the conduct at issue is direct engagement with government, the courts have traditionally looked to the Petition Clause.  Looking to the Petition Clause is important because that clause has its own set of concerns that often differ from the concerns of other First Amendment rights.

Unlike other agency fee cases that addressed issues of speech or association, Friedrichs deals with collective bargaining.   Collective bargaining is direct engagement with government, and the Court should therefore resolve Friedrichs by looking to the Petition Clause doctrine.

Most recently, the Court addressed the Petition Clause protections for public employee direct engagement with government in Borough of Duryea v. Guarnieri.

Guarnieri should guide the Court’s reasoning in Friedrichs.

In Guarnieri, the Court held unanimously that direct engagement with government in the form of a union grievance (or a complaint that the government had violated the terms of a collective bargaining agreement) was not protected by the Constitution if it addressed only terms of employment.  Under Guarnieri, the government can force an individual to subsidize the filing of those grievances without offending the agency fee doctrine, because the activity is not constitutionally protected.  The government makes us subsidize things all the time that are not constitutionally protected—our entire tax system, for instance—and that does not concern our compelled activity doctrine.

The facts in Friedrichs appear different at first blush because labor law uses two different words for conduct that affects the terms of employment agreements—collective bargaining and grievances.  But the focus of each is really quite similar.  Collective bargaining sets the terms of an agreement through initial negotiation.  Filing a grievance resolves the terms of an agreement through adjudication, usually following a dispute over what the terms actually are.  The ends of collective bargaining and filing a grievance, however, are the same:  terms of employment.  Collective bargaining sets the terms of an agreement for a group of employees; resolution of a grievance clarifies and enforces those terms for a group of employees.

Guarnieri held that direct engagement with government with respect to the terms of one’s own employment is not enough to garner constitutional protection.  At most, both collective bargaining and grievances affect only the employment terms for a particular group of employees.  Both can have wide ranging indirect implications.  But neither creates laws of general applicability and neither affects public budgets any more directly than any decision by the government to run public institutions in one way or the other.  To create a test that considers indirect impact on public policy would be to risk converting every internal conversation between public employees that sets office protocol into a possible constitutional question.  Should a public employee request to an administrator that all offices in the state purchase one type of copier paper over another obtain protection from the First Amendment?  It should not, regardless of the fact that the request could cost the state thousands of dollars and impact other policies indirectly.

Because the activity at issue in Friedrichs is not constitutionally protected, the Court should hold that the government does not implicate the agency fee doctrine when it compels an individual to subsidize that activity.

One might argue that setting the terms of employment through collective bargaining is of greater public concern than enforcement of those terms through a grievance because collective bargaining has the capacity to shape public policy (at least for those public employees covered by the contract).  But passing a law is insufficient to trigger Petition Clause protection in the public employment context according to the Guarnieri majority.   As the Court described, individuals historically petitioned on both public and private matters, and both types of petitions resulted in the passage of laws and setting of policy.  What mattered instead was whether the petition addressed an issue of broad public concern, not whether the petition affected public policy in some narrow or private sense.  According to Guarnieri, the employment terms of public employees were generally not issues of public concern.

It also bears mention that Guarnieri should provide particular guidance to the Court’s originalists.  As Catherine Fisk identified in her recent OnLabor post, Justice Scalia could hold a key vote in Friedrichs.  If Justice Scalia and Justice Thomas hold true to their originalist positions in Guarnieri, they should both vote that there is no constitutional violation in Friedrichs for collecting agency fees for collective bargaining.  In Guarnieri, Justice Scalia, joined by Justice Thomas, argued for a more stringent rule than that articulated by the majority.  Under Justice Scalia’s view, the Constitution would never protect direct engagement with government as an employer.  Collective bargaining is engagement with government as an employer, and Justice Scalia should view this activity as not protected.  Moreover, the history of petitioning shows that Justice Scalia’s proposed rule was more correct than the majority rule in Guarnieri.  Petitioning at the Founding (and beyond) did not involve negotiating terms of employment, and Justice Scalia’s rule does more to articulate a doctrine specific to the needs of the Petition Clause.

Justice Scalia has shown signs that he sees the connection between the Petition Clause and collective bargaining, and between Guarnieri and the agency fee doctrine.  As Jack Goldsmith observed in OnLabor, Justice Scalia’s questioning in oral argument for Harris v. Quinn appeared to side with the union.  The line of questioning also tracked closely Justice Scalia’s concurrence in Guarnieri.  It is of course a puzzle that Justice Scalia then joined the majority in Harris that included dicta distinguishing Guarnieri from collective bargaining.  But that puzzle could be quickly resolved with a reminder that dicta is simply dicta.

The Court resolved the issue in Harris by declining to extend the agency fee doctrine to quasi-public employees.  Justice Scalia likely joined on this point because his articulated rule in Guarnieri would apply only to engagement with the government as an actual employer and not a quasi-employer.  Expansion of the agency fee doctrine to quasi-employees, as noted by Harris, would lack a limiting principle to exclude anyone who received government funding in even the most indirect form.  Friedrichs involves public employees only and, therefore, would implicate Justice Scalia’s Guarnieri concurrence directly.