[Eugene Volokh] Why There's No First Amendment Problem With Compulsory Union Agency Fees

In Abood v. Detroit Bd. of Ed. (1977), the Supreme Court held that requiring employees to pay funds to a union potentially violated the employees' First Amendment rights. (Union members of course paid such funds as a condition of their voluntary union membership, but under the Michigan rule, nonmembers would have to do it, too.) This burden on First Amendment rights, the Court said, was justified as to payments used for collective bargaining purposes, because of the government interests in preserving labor peace, and preventing free-riding on the union's collective bargaining activities. But, the Court unanimously held, this compelled funding had to be limited to collective-bargaining-related speech, and couldn't include funds used to pay for "other ideological causes not germane to its duties as collective-bargaining representative."

Unsurprisingly, this has led to a good deal of litigation about what is "germane" to collective bargaining, about what procedures may be used to gather the permissibly mandated fees without getting too much or too little, about how far this extends (compulsory bar dues for lawyers? compulsory student fees for university students?), and more. It has also led to calls -- especially from some conservative and libertarian judges, lawyers, and scholars -- to reject the entire germane/nongermane distinction, and strike down all such government-compelled payments. This term, in Janus v. ASFCME, the Supreme Court is confronting this very question.

My view, though, was the opposite: I don't think there's any First Amendment problem with compelled payments of union agency fees at all. The government can constitutionally require people to pay money to the government (in taxes), money that the government can then use for ideological purposes (e.g., supporting a war, opposing racism, promoting environmentalism, and so on). Likewise, the government can constitutionally require people to pay money to unions, money that the unions can then use for ideological purposes.

I don't say this because I support unions generally -- indeed, I'm somewhat skeptical of modern American unionism, both public-sector and private-sector. But I don't see any principled First Amendment reason for forbidding governments from requiring such payments from public employees (just as I don't see any reason why the government couldn't just pay its employees less and then pay the saved sums to unions as a "labor relations consulting fee" or some such).

My coblogger Will Baude, it turns out, has the same view as to the First Amendment matter (I can't speak to his policy views on unionism). And when we were asked to sign an amicus brief in this Term's so saying, we naturally said yes. You can read the whole brief -- drafted by Gregory Silbert, Adam Banks, and Samuel Zeitlin of Weil, Gotshal & Manges LLP, whom we thank for all their work -- but here's the Summary of Argument:

[1.] Abood v. Detroit Board of Education, 431 U.S. 209 (1977), this Court has observed, is "something of an anomaly" when it comes to the First Amendment. Harris v. Quinn, 134 S. Ct. 2618, 2627 (2014) (internal quotation marks omitted). In fact, Abood is even more anomalous than previously acknowledged. For the first time, "Abood . . . recognized a First Amendment interest in not being compelled to contribute to an organization whose expressive activities conflict with one's 'freedom of belief.'" Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 471 (1997). Abood then concluded that some interference with this new First Amendment interest was "constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations," and the need to avoid free-riding on the public union's collective bargaining efforts. Abood, 431 U.S. at 222.

The Court has since questioned whether Abood balanced the competing interests correctly, noting, for example, that "free-rider arguments are generally insufficient to overcome First Amendment objections." Harris, 134 S. Ct. at 2627 (internal quotation marks and alterations omitted). Petitioner and his amici press similar arguments for reversing Abood here. See Pet. Br. at 36–37.

Where Abood truly went wrong, however, was not in how it applied the new First Amendment objection it recognized. Rather, Abood erred by recognizing that objection in the first place. Compelled subsidies of others' speech happen all the time, and are not generally viewed as burdening any First Am