Is Public Sector Collective Bargaining Identical to Lobbying for First Amendment Purposes?

The Petitioners in Harris v. Quinn argue in their merits brief that Abood v. Detroit Bd. of Educ. should be overturned, essentially asking the Court to declare all public sector “agency shop” or “fair share” agreements unconstitutional. (For more background on Abood and the “fair share” agreement in Harris v. Quinn, see this explainer.)

This post analyzes one of the Petitioners’ arguments for overruling Abood: their argument that all public sector collective bargaining is lobbying, indistinguishable for First Amendment purposes from the political activity of private advocacy groups. In what follows, I argue that the Petitioners’ lobbying argument is rhetorical rather than substantive: it does not address the substantive basis for the Court’s longstanding distinction between public sector collective bargaining and lobbying but rather simply names all public sector union activity “lobbying.” The Harris v. Quinn Court’s ultimate treatment of its prior precedent should hinge on the persuasiveness of its previously articulated reasons for distinguishing lobbying and collective bargaining, not on whether public sector bargaining can abstractly be called “lobbying.”

The Petitioners’ Lobbying Argument

The Petitioners supply a broad definition of lobbying from Merriam-Webster’s Collegiate Dictionary: “to “lobby” means “to conduct activities aimed at influencing public officials.”” Pet. Brief at 40. Under this definition, whenever a union seeks an audience with the State, including for collective bargaining purposes, it is lobbying the government. Pet. Brief at 41. Applying this definition, the Petitioners argue that the Illinois law under review in Harris v. Quinn forces independent home care providers to finance union lobbying because the law imposes a statutory duty on the union representing the providers to negotiate with state officials over Medicaid reimbursement rates (i.e., the providers’ wages) and related policies. Pet. Brief at 38.

The primary legal support for the Petitioners’ equation of collective bargaining and lobbying comes from this passage in the Supreme Court case Lehnert v. Ferris Faculty Ass’n: “[t]he dual roles of government as employer and policymaker… make the analogy between lobbying and collective bargaining in the public sector a close one.” Pet. Brief at 23. The Petitioners ask the Court to go one step further and admit that this “tenuous distinction” is in fact no distinction at all: public sector collective bargaining is lobbying.

If public sector collective bargaining is lobbying, the Petitioners argue,  then public sector “fair share” agreements are unconstitutional under United States v United Foods. In this Supreme Court case, a mushroom producer challenged fees imposed pursuant to the Mushroom Promotion, Research, and Consumer Information Act to fund advertisements promoting mushroom sales. The Court held that the fees violated the mushroom producer’s First Amendment rights, distinguishing the case from three other compelled speech cases in which mandatory assessments were upheld by the Court: Abood, Keller v. State Bar of Cal., and Glickman v. Wileman Brothers & Elliott, Inc. In each of these three cases, compelled assessments were found to be constitutional because they were part of a larger regulatory purpose that justified the compelled association. The United Foods Court described Abood, for example, as holding that “the infringement upon First Amendment associational rights worked by a union shop arrangement was “constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.”” The Court reasoned that the mandatory fees in United Foods were unlike the assessments in Abood, Keller, and Glickman because they were not part of some larger regulatory scheme—the primary purpose of the association was to finance advertisements. So, under United Foods, a mandatory assessment is unconstitutional if the purpose of the assessment is exclusively expressive.

The Harris v. Quinn Petitioners’ brief cites United Foods to argue that because public sector collective bargaining is lobbying, the Illinois law in question compels association for exclusively expressive purposes, and therefore is unconstitutional for the same reason the mandatory fees for mushroom advertisements were found unconstitutional in United Foods. This constitutional defect is present in all public sector “fair share” agreements.

The Court’s Close Analogy Between Public Sector Collective Bargaining and Lobbying

The Petitioners cite to the Court’s recognition in Lehnert that the analogy between the public sector collective bargaining and lobbying is “a close one,” yet surprisingly the Petitioners’ brief does not discuss the reasons why the Court decided to maintain the distinction between these two categories in Abood and Lehnert. This section of the post explores these reasons.

In Abood, the Court specified that while “fair share” agreements for public sector unions did not violate the First Amendment rights of dissenting public employees in the bargaining unit, public sector unions “cannot spend funds for the expression of political views, on behalf of political candidates, or towards the advancement of other ideological causes not germane to its duties as collective-bargaining representative.” The Court acknowledged that there will be difficult problems in drawing lines between collective bargaining activities and ideological activities unrelated to collective bargaining. The same line drawing exercise is required in the private sector, “but in the public sector the line may be somewhat hazier.” This is because in the public sector, establishing a collective bargaining agreement often requires not merely negotiating at the bargaining table, but subsequent approval by other public authorities. Often, the Court explained, the provisions of public sector collective bargaining agreements requiring additional expenditure of government funds must be ratified in budgetary and appropriations decisions. No comparable additional step is required in the private sector, where the union confronts the employer as a unified whole and not as one of a number of fragmented governmental decision-makers.

While the Abood Court recognized this difference between public and private sector collective bargaining, it did not subsequently conclude that the justifications for private sector “fair share” agreements are not applicable to the public sector. On the contrary, in the public sector the state retains the same interest in maintaining labor peace and preventing free-riding. The major difference is that in the public sector the activities that further these compelling interests are broader in scope because of the fragmented nature of government. Hence, courts might have a harder time distinguishing between collective bargaining and lobbying in the public sector compared to the private sector.

In Lehnert, the Court attempted to clarify the line between public sector union expenditures germane to collective bargaining and expenditures on unrelated ideological activities. Lehnert involved faculty at a state college who objected on First Amendment grounds to particular uses by their union of their service fees. The Court, in a plurality opinion, held that “the State constitutionally may not compel its employees to subsidize legislative lobbying or other political union activities outside the limited context of contract ratification or implementation.” The Court thus affirmed the Abood distinction between collective bargaining and unrelated ideological activities, but clarified this distinction as it applied to specific expenditures. The Court found that, in addition to funding contract ratification and implementation, the local union could use “fair share” fees to fund the collective bargaining costs of its state or national parent union, to send delegates to various union conventions, and to prepare for a strike. The Court held that the union could not use the fees on public relations expenditures designed to enhance the general reputation of the teaching profession, nor could the fees be used fund a union program aimed at increasing state public education funding, or to finance litigation unrelated to the bargaining unit.

The Lehnert Court did not maintain that all public sector collective bargaining is ideological activity for which the assessment of mandatory fees is impermissible. It acknowledged, following Abood, that the line between collective bargaining and unrelated ideological activity is “somewhat hazier” in the public sector when compared to the private sector, but did not take this as a reason to disavow Abood’s justification for assessing public sector collective bargaining fees. Rather, the Lehnert Court attempted to clarify the line by specifying in greater detail what counts as germane to collective bargaining.

The Petitioners’ Lobbying Argument in Context

If, in some instances, it is difficult to tell two things apart, is that a reason for thinking that the two things are the same? The Abood and Lehnert Courts certainly did not think so. According to these decisions, when a public sector union meets with government officials to negotiate a collective bargaining agreement it is not “lobbying” the government in the way the Petitioners use the term. Rather, under Abood and Lehnert public sector collective bargaining is designed to serve a specific function within a larger regulatory scheme: to effectuate the compelling state interest in supporting the system of labor relations Congress and the Illinois legislature have identified as necessary to maintain labor peace. The lynchpin of that system of labor relations is collective bargaining. Accordingly, the State has an additional compelling interest in preventing free riders from undermining the ability of unions to fund their collective bargaining activities. Hence the necessity for “fair share” agreements. Clearly, under the justifications given in Abood and Lehnert, public sector “fair share” agreements are not unconstitutional under United Foods.

If this analysis is correct, it suggests that what I have identified as the Petitioners’ “lobbying argument” is a rhetorical one. The Petitioners argue that collective bargaining in the public sector is, by definition, lobbying. As legal support, the Petitioners rely exclusively on Lehnert, but as the above analysis shows, this case does not support the Petitioners’ argument. In Lehnert and Abood, the Court developed a series of arguments justifying the use of public sector “fair share” fees for activities germane to collective bargaining but denying the use of those fees for unrelated ideological activity. The Petitioners’ lobbying argument does not significantly address this line of reasoning, nor does it offer explicit reasons for why the Court’s prior analysis of this First Amendment issue should be abandoned. Ultimately, whether or not public sector collective bargaining can be arbitrarily defined as lobbying ought to be irrelevant to the decision in Harris v. Quinn. The Court’s analysis on this issue should turn on its assessment of the compelling state interests that justified the “fair share” fees in Abood and Lehnert.

If the Court follows Abood and Lehnert, it could simply maintain the line drawn in Lehnert and allow the union to charge mandatory assessments to fund, among other things, its negotiations with the State over Medicaid reimbursement rates and related policies, and its efforts to convince the State to approve appropriations to implement its collective bargaining agreements. Following Lehnert, the Court would not permit the union to compel fees for general promotional advertising like the mushroom advertisements in United Foods. Nor would the union be permitted to use “fair share” fees to support litigation or lobbying on matters unrelated to professional needs of its members.

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