Supreme Court to hear arguments on forced union fees

On Jan. 11, lawyers for the plaintiffs in Friedrichs v. California Teachers Association will argue before the U.S. Supreme Court that the First Amendment prohibits the government from forcing its employees to pay union fees.

Can the government force its employees to give money to a union as a condition of keeping their jobs? That’s the question the U.S. Supreme Court will consider Jan. 11 when it hears arguments in Friedrichs v. California Teachers Association.

The plaintiffs in the case are elementary school teacher Rebecca Friedrichs and nine other California public school teachers who have been forced to pay fees to a teachers union even though they don’t support the union’s political agenda and don’t want it to speak on their behalf. They argue that the First Amendment rights to freedom of speech and freedom of association protect their right to choose whether to support a union.

Their argument is well-founded. The Supreme Court has long held that the right to free speech includes a person’s right not to be forced to pay for speech with which he or she disagrees, and the right to freedom of association includes a person’s right not to associate with a group he or she wants no part of. Forcing people to give money to a union would seem to obviously violate these First Amendment rights.

But the Supreme Court ruled in a 1977 decision, Abood v. Detroit Board of Education, that governments can force employees to pay union fees to serve the government’s purported interest in preserving “peace” in the workplace and preventing “free riding” by people who would reap the alleged benefits of union representation without paying. At the same time, however, the court prohibited the government from making workers pay for certain union political activities, such as electioneering. So, ever since, unionized government employees have had the right to opt out of paying full union dues, but have been forced to pay so-called “fair share” fees or “agency fees” to cover the union’s cost of representing them in collective bargaining.

In 2014, in Harris v. Quinn, a five-justice majority of the court harshly criticized the Abood decision, noting that it was poorly reasoned and based on unsupported premises. In Harris, the court considered whether the government can force people who aren’t government employees, but merely receive a government subsidy for some activity, to pay union fees. And the court said no, ruling that even if a government can make its actual employees pay union fees – which it found highly questionable – it certainly cannot make people who aren’t even its employees do so.

The court didn’t have to overturn Abood to decide Harris, so it didn’t. But the justices strongly suggested that they would rule that Abood was wrongly decided if a case forced them to consider the issue. Friedrichs is that case.

The Friedrichs case also presents a second question: Can the government force unionized employees to “opt out” to avoid paying for union politics?

Currently states with government-worker unions, including Illinois, automatically make unionized employees pay full union dues unless an employee informs the state that he or she doesn’t want to be a union member – which means that workers have to take the affirmative step of opting out to avoid paying for union electioneering and other political activity. The Friedrichs plaintiffs argue that workers shouldn’t have to take action just to protect their First Amendment rights. As they point out, opting out is not necessarily easy: Workers who would prefer not to pay for union politics often don’t know how to avoid doing so and end up paying full dues rather than subjecting themselves to the procedural hassles involved in opting out.

So the Friedrichs case could have several different outcomes.

Possible outcome No. 1: The court could overturn Abood and rule that government workers have the right to choose whether to support a union. This would be a landmark victory for worker freedom and a huge blow to government unions, which depend on coerced contributions to survive. The unions know that when workers have a choice, a large percentage of them will choose not to support a union. If the court rules this way, it is likely to also require governments to use an “opt in” system under which unionized workers would only pay dues if they have affirmatively chosen to join a union.

Possible outcome No. 2: The court could allow governments to keep making their workers pay union fees but require them to have an “opt in” system under which workers would only pay full union dues (and thus pay for union electioneering and the like) if they affirmatively chose to join a union. This would also hurt government-worker unions financially: They oppose an “opt in” system because they know that if people are directly presented with a clear choice, many fewer will choose to pay full dues.

Possible outcome No. 3: The court could allow Abood to stand and maintain the status quo. This seems unlikely in light of the court’s evisceration of Abood in the Harris decision – but some justices are famously unpredictable, so anything is possible.

The Liberty Justice Center, or LJC, the Illinois Policy Institute’s litigation partner, filed an amicus brief in Friedrichs on behalf of a group of Illinois state workers who have been forced to support a union. LJC also represents those workers in a separate federal lawsuit challenging Illinois laws that force state employees to pay union fees. The Friedrichs decision, which the court will issue by the end of June 2016, will determine the outcome of the Illinois case: If Rebecca Friedrichs and her fellow plaintiffs win, then so will the Illinois employees – and all government workers who haven’t been free to choose whether to give their money to a union.