U.S. Supreme Court to Rule – Is Government Unionization a Free Speech Issue?

Since the Supreme Court has the power to stir up controversy like few other American institutions, public debate about government unionization is certain to intensify in coming months. This fall, the justices will take up Friedrichs v. California Teachers Association, which concerns the question of whether public sector workers can be required to pay “agency” fees to unions for collective bargaining expenses. Rebecca Friedrichs, an Orange County schoolteacher, believes that compulsory agency fees violate her First Amendment right not to subsidize speech to which she objects. Depending on how, and how broadly, the Court rules on this question, Friedrichs could be the most consequential labor case since at least the 1970s.

Allowing public employees to unionize has to be one of the worst policy ideas of the last 50 years. But to frame the issue as one of free speech is to overlook the fact that government unions do the greatest harm to the public, not individual government workers. Unions paralyze administrations, bankrupt cities, stifle local political life, and flout sovereignty. A ruling against the California Teachers Association would be a far greater victory for the cause of good government than for the First Amendment.

All discussion about public unions is shaped to some degree by labor’s decline in corporate America. Over the last three decades, private unions have lost members at a clip of roughly 150,000 per year on average. The collapse of private unions, a once reliable and wealthy constituency for the Democratic Party, has been an enormous political boon for public sector unions, because it increased demand for their resources. This decline has also neutralized Democrats’ ability to object to government unionization on principle. Back when the steel, coal, and autoworkers unions had real clout, many Democrats were openly opposed to expanding unions’ reach into the public sector. In a 1937 letter to the President of the National Federation of Federal Employees, President Franklin Roosevelt famously and forthrightly explained why “the process of collective bargaining, as usually understood, cannot be transplanted into the public service.” But, having just signed into law the National Labor Relations Act and spearheaded other union-friendly initiatives, FDR could say that without anyone accusing him of being anti-worker. Now, however, the Democratic Party can’t point to any significant achievements in strengthening unions, because no one has any good ideas about how to revive labor in the private sector. Their union bona fides are nothing like FDR’s were, so even Democrats who have serious misgivings about government unions’ right to exist must tiptoe around the point.

This is unfortunate, because Democrats, who hold most state and local offices in blue America, often grasp the nature of problem with special clarity. In Lessons of Hope, his memoir about serving as Michael Bloomberg’s schools chancellor, Joel Klein writes “[l]ike anyone who first encounters the teachers’ contract in New York City, I had trouble believing that certain parts of it were real.” Klein marveled at how poor teachers were not fired but “excessed.” Their jobs were eliminated “ostensibly through no fault of [their] own,” and they were sent off to find and claim an open position at some other unfortunate school, against the wishes of that school’s principal and even if it meant bumping a new teacher out of a job. (An annual ritual in many school systems, this “dance of the lemons” practice is featured in the 2010 documentary Waiting for Superman.) Never having worked in city government before, Klein was continually amazed at the United Federation of Teachers’ stunts, but these bizarro-world labor rules have been in place for years, among a variety of professions, and across the unionized public sector. Buzz Bissinger relates in his 1998 book A Prayer for the City that the Philadelphia Police Department “couldn’t hire sketch artists but instead under union rules had to give police officers art lessons.”

Unions have placed onerous workforce regulations into contracts through collective bargaining negotiations as well as into state laws by applying political pressure. Both tactics are daunting to overcome. Unlike with agency fees levied for collective bargaining purposes, a union non-member can opt-out of funding what the Supreme Court calls “political or ideological projects.” But, under current law, unions are allowed to collect dues for these purposes unless workers explicitly object. Since only a small percentage go to the trouble of doing so, the money keeps flowing in. The Center for Responsive Politics maintains a list of the “Top Organization Contributors” to federal political campaigns, parties, and other groups since 1990. Three out of the top six slots are occupied by government unions. Unions’ “taxing power” is an even more effective weapon on the state and local level. In 2012, California voters nixed Proposition 32, which would have prohibited unions from automatically deducting dues intended for political purposes. Unions and their allies spent $73 million to defeat this ballot initiative, $21 million from the California Teachers Association alone.

As for reforming workforce regulations via collective bargaining, the problem there is that almost nothing comes for free. Even changes with overwhelming public support often must be offset by some compensating financial advantage. In 2007, the autopsies of two Boston firefighters who died in a fire revealed traces of alcohol, cocaine, and marijuana. City government moved during the next bargaining round to institute random drug and alcohol testing for all firefighters but was thwarted until, following an arbitrator’s ruling, it agreed to grant a quid pro quo pay increase of 1.5 percent.

In California the average urban firefighter earns pay and benefits well in excess of
$200,000 per year. These unaffordable rates of pay make it impossible to hire
more firefighters, undermining their safety and the safety of the public.

City budgets are mainly devoted to salaries and benefits which are, in turn, determined by collective bargaining contracts. Authorizing collective bargaining in the public sector means creating entities not only with an incentive to maximize their own benefit at the expense of taxpayers, but, in the case of union leadership, a legal obligation to do so as well. To fail to push city budgets to the brink of insolvency, and sometimes beyond, is, for union leadership, tantamount to leaving money on the table. Though no local government has declared bankruptcy since Detroit in June 2013, the ongoing struggles of Chicago and the Chicago Public Schools show that it’s only a matter of time before the next surge of municipal insolvencies. As Kristi Culpepper, a Kentucky state official and influential public finance analyst recently explained to Bloomberg, “Can you imagine a scenario where the CEO of a large corporation announced that the corporation is approaching insolvency, and the employees responded by asking for a raise? That is what is happening with Chicago Public Schools.”

A government with a unionized workforce is not truly sovereign; its commitment to the public is qualified by its legal commitment to accept collective bargaining. I once attended a city council meeting that took place while contract negotiations were underway and witnessed a series of the city’s duly elected officials stand up and publicly plead with union leadership to settle on reasonable terms. Who is in charge here?

Public employee unions are often likened to Tammany Hall, but the comparison is unfair—to Tammany Hall. For all their flaws, the old political machines reliably turned out voters and thus kept levels of civic participation high. During the era of rule by government union, local voting rates have plummeted. According to New York City’s Board of Elections, turnout in mayoral elections has declined from over 90 percent in the early 1950s to 26 percent in the recent 2013 election. Unions contribute substantially to voter apathy through bolstering one-party rule by Democrats. Far from being discontent over consistently uncompetitive elections and the lack of rival interest groups, unions celebrate their success at stifling local democracy: “We elect our bosses” boasts the American Federal State County Municipal Employees union in its promotional materials. Even at the height of their power, labor legends like Walter Reuther of the United Autoworkers and John L. Lewis of the United Mine Workers of America could not have made that claim.

States could quickly restore sanity to government budgets and administrations by rolling back their public labor laws. But that’s unlikely. With the federalist solution to government unionization unavailing, it therefore falls to the Supreme Court to save states from themselves.

The Left’s tendency to see the argument against government unionization as an attack on all organized labor is somewhat understandable, in that conservatives do often conflate the cases against public and private labor. Conservatives oppose unions because a weaker labor movement means a weaker Democratic Party and, in their view, a stronger economy, and because “compulsory unionization” cannot stand as a matter of principle. The Right tends to insist that under no circumstances should any worker, ever, be required to pay a cent in dues or fees to a union to which he does not wish to belong. “Right-to-work” laws, such as exist in 25 American states, prohibit compulsory fees.

Friedrichs v. California Teachers Association argues for the essential justice of right-to-work within the government employment context by raising the question of whether states’ public labor laws violate the First Amendment, and in the Roberts Court it may find a receptive audience. The conservative justices, Alito in particular, have painted a target on Abood v. Detroit Board of Education (1977), which relied on earlier decisions about private labor disputes to uphold the constitutionality of agency fees for government workers. The Abood Court saw no reason why, if the avoidance of free-ridership and the promotion of labor peace justified the existence of the private-sector agency shop, the same reasons would not apply equally well in the case of Detroit’s public schools.

Justice Alito believes that the Abood Court was not sensitive enough to the First Amendment concerns surrounding the imposition of agency fees in the public sector. Why does the law protect a teacher’s right to withhold financial support from a campaign to protect seniority when her union pursues it through lobbying but not when it does so at the bargaining table? In recent jurisprudence regarding narrower public labor questions, Alito has gone out of his way to question Abood’s reasoning. Writing for a 7-2 majority in Knox v. Service Employees International Union, Local 1000 (2012), he stated that “The justification for permitting a union to collect fees from nonmembers—to prevent them from free-riding on the union’s efforts—is an anomaly.” And it’s not only agency fees that Alito has a problem with on First Amendment grounds, but also unions’ legal ability to rely on an “opt out” system of dues collection: “An opt-out system creates a risk that the fees paid by non-members will be used to further political and ideological ends with which they do not agree.”

Friedrichs contemplates a future in which government unions function in a manner somewhat like Planned Parenthood, the American Association of Retired Persons, and the National Rifle Association. These groups are often vilified for their political influence despite depending heavily, if not exclusively, on annual appeals to donors for their funding. Some conservatives even argue that right-to-work strengthens unions, because leadership must work harder to earn members’ dues. Perhaps. It’s difficult to imagine that public unions’ decline will be as precipitous as private unions’, if for no other reason than school districts aren’t economically vulnerable like the steel and auto industries were. Nonetheless, decades of experience with right-to-work states attests that unions are weaker when they lack the power to tax workers.

To put a human face on things, Friedrichs is about the firefighter who believes that, during contract negotiations, when city managers say they can afford a 2 percent but not a 5 percent raise, they’re being sincere and not just poormouthing, as his IAFF local alleges. Or the teacher who would be happy to accept a higher salary in exchange for less-stringent job protections, while watching union leadership pursue the opposite course funded by her agency fees. The agency fee regime is particularly unjust to young teachers who are compelled to financially support “last-in-first-out” (LIFO) contract provisions that explicitly threaten their own interests. Again, younger teachers can prevent unions from using their money to support LIFO through lobbying, but at the bargaining table they have no such right of refusal.

Compulsory agency fees should offend all freedom-loving Americans. That said, should the Court rule against Friedrichs, it would be a minor defeat for the First Amendment, but a catastrophe for future generations still burdened with trillions in pension debt, failing school systems designed to maximize benefits for their adult workforces rather than the children forced to attend them, and once-great cities bankrupted by rapacious compensation demands. These are the parties who have faced the full brunt of government unions’ strategy of “concentrated benefits, diffuse costs,” and thus have the most riding on Friedrichs’s outcome. After their decades-long run of systematically plundering state and local budgets, nailing government unions on First Amendment violations feels a bit like going after Al Capone for tax evasion.

About the Author:  Stephen Eide is a senior fellow at the Manhattan Institute’s Center for State and Local Leadership. Steve received his doctorate in political science in Boston College and previously was a Senior Research Associate at the Worcester Regional Research Bureau. His research focuses on public employee unions, retirement benefits, public finance, and urban policy. This article originally appeared in “The American Interest” and is published here with permission from the author.

3 replies
  1. Avatar
    S Moderation Douglas says:

    “Unlike with agency fees levied for collective bargaining purposes, a union non-member can opt-out of funding what the Supreme Court calls “political or ideological projects.” But, under current law, unions are allowed to collect dues for these purposes unless workers explicitly object. Since only a small percentage go to the trouble of doing so, the money keeps flowing in.”

    According to the California State Controller’s Office, roughly 30% of workers are “fair share” payers.

  2. Avatar
    S Moderation Douglas says:

    I don’t know why FDR’s opinion 80 years ago has any significant relevance now, and I know it has been parsed almost as much as the second amendment. But it begs to be noted, again, that in the same letter, he also said

    “Organizations of Government employees have a logical place in Government affairs. The desire of Government employees for fair and adequate pay, reasonable hours of work, safe and suitable working conditions, development of opportunities for advancement, facilities for fair and impartial consideration and review of grievances, and other objectives of a proper employee relations policy, is basically no different from that of employees in private industry.”

    His particular objections seemed to be militancy or strikes:

    “a strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government until their demands are satisfied. Such action, looking toward the paralysis of Government by those who have sworn to support it, is unthinkable and intolerable.”

    For what its worth, this link provides the letter in its entirety.


  3. Avatar
    S Moderation Douglas says:

    It’s the money, stupid.

    When I started work with the state (1972) there was no collective bargaining. I was a member of CSEA (California State Employees Association) I’m sure someone will correct me if my memory fails, but membership was optional. The state would regularly deduct Association dues from my pay and remit to CSEA, only if I authorized it in writing. The association used the dues for research and lobbying and for representing employees in adverse actions, among other things.
    There were no “contracts”, but the Association did meet with the legislature to advocate for pay and working conditions. I have no idea what percentage of workers were members. I do recall that I made $750 a month and I’m guessing dues were less than $10. A lot of money back then, but many of us thought it was worthwhile.

    After Brown signed the Dills act (I just learned, by the way, that it passed by 70 to 7 in the Assembly and 24 to 3 in the Senate.)the only immediate difference I saw were that dues became mandatory. (And slightly larger. After a respectful period, of course.)

    The first contract I recall, the union met and conferred with DPA, and agreed to a “x%” increase in pay plus a “y%” increase in benefits. DPA agreed to the increases due to high inflation and salary comparisons.

    That is collective bargaining.

    Unfortunately, or fortunately, depending on your perspective, the DPA does not have the power to appropriate funds. The contracts went to the legislature, who replied, “You can have ‘z%’ (which was less than the x plus y agreed to) but feel free to divide it between pay and benefits any way you see fit.”

    And THAT, is what we have come to know and love as “collective begging”. Thank you Mr. Dills.

    Ironically, in 1979 (11.3% inflation) the legislature passed, and Brown vetoed a 14.5 percent pay raise for state employees. He was overridden by the Legislature, something it has done only four times since 1946.”

    Still collective begging.

    But I digress. It’s the money, stupid. The big difference between 1976 and 2016 is not employee pay. It is not employee benefits. It is not “freedom of speech” for state employees.

    It’s the money the unions bring to political campaigns. And, yes, it is Democrat vs Republican. Liberal vs conservative. Social Security and Medicare vs the “alternative” du jour. The middle class vs unfettered “business” interests.

    It’s the money.


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