Friedrichs vs. California Teachers Assn., which will be argued before the U.S. Supreme Court on Monday, could significantly rebalance state and local political power for the first time since the rise of public sector unions in the 1960s and 1970s.
The case concerns laws in California and 22 other states that permit public sector unions to force everyone covered by their contract to contribute money to the union — even if an individual worker wants no part of it. For decades, such statutes have increased the membership rolls and inflated the coffers of unions for teachers and other government workers, turning them into political powerhouses and the backbone of the Democratic Party. All that could change if the court rules for the plaintiffs, a group of nine teachers led by Rebecca Friedrichs, who has taught elementary school for 26 years, most recently in Anaheim.
The constitutional basis for the status quo is Abood vs. Detroit Board of Education. In that 1977 decision, the Supreme Court said that even though workers cannot be forced to join a union, they still must pay the union for negotiating with management on their behalf. These costs to nonunion members are called “agency fees.”
The ruling rested on two connected ideas, both of which are still vigorously supported by organized labor. The first is “exclusive representation”: Through a one-time vote to unionize, a majority can compel everyone to accept a union as their agent in collective bargaining. The second is the “free rider” argument: If a union now has to represent all workers equally, then members and nonmembers alike must pay a fair share of those costs.
In states where laws protect agency fees, significantly more public employees become union members. Stanford University political scientist Terry M. Moe, for instance, found that more than 90% of teachers belong to unions in states that permit agency fees. In states that don't, only 68% of teachers are unionized.
Why? Agency fees are almost always nearly the same amount as union dues, so many people just join the union. They're paying for it anyway.
The 1st Amendment problems inherent in compelling any payments to public employee unions should be obvious. The first is that money is fungible. Abood imagined a clear line separating political spending and collective bargaining costs. In practice, however, whether money comes from dues or agency fees, the union just gets more money to spend.
Besides, to fully opt out of political spending, a nonmember has to explicitly decline (usually in writing) to pay whatever portion of his agency fee the union claims it allocates to politics. Some workers forget to do so. As a result, in states like California with agency fees, public employee unions consistently are among the top political spenders.
Unions also interpret spending categories like “member education” broadly. It's not uncommon for negotiations-related fliers, emails and ads to look and sound a lot like political advocacy.
Second, when it comes to public sector unions, all issues subject to collective bargaining are inherently political. Even wages are a political question — because unions invariably argue that more tax dollars should be spent on public workers' salaries or pensions rather than other priorities. Therefore, even if a strict separation of bargaining and lobbying expenditures were possible, nonmembers still end up underwriting political positions they may not support.
Justice Samuel A. Alito Jr. alluded to this problem in his decision in a recent case, Knox vs. SEIU: “Collective bargaining [in the private sector] concerns the union's dealings with the employer; political advocacy and lobbying are directed at the government. But in the public sector, both collective bargaining and political advocacy and lobbying are directed at the government.”
The entire agency fee then violates a nonunion worker's right to freedom of speech and association. Alito also wrote that concerns about free riders weren't enough to overcome these 1st Amendment objections.
Public sector unions became political powerhouses by essentially co-opting the cash, and therefore the voice, of people who opposed their views. Public employees certainly have benefited from that influence, but it has made government more expensive for taxpayers and less efficient for everyone else. The Supreme Court has an opportunity to restore some balance.
Daniel DiSalvo is an associate professor of political science at the City College of New York-CUNY and a senior fellow at the Manhattan Institute. He is the author of “Government Against Itself: Public Union Power and Its Consequences.”