Look for the union label.

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Supreme Court's Next Big Case: Union Dues

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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You didn’t really think you could get out of this U.S. Supreme Court term without a teaser about the next big case, did you? On its last day of public business until the first Monday in October, the court dropped a big hint about next season’s episodes. It agreed to hear Friedrichs v. California Teachers Association, which squarely poses the question of whether the basic public-union arrangement that’s been in place since 1977 violates the First Amendment.

If you think that the same court that twice declined to sink the Affordable Care Act won’t upend settled law, think again. In Citizens United, and other cases, that same court used the same First Amendment to gut the campaign-finance arrangements that also dated to the mid-1970s. The Supreme Court in that decade was in compromise mode, and its constitutional decisions governing both unions and campaign finance made practical sense while being theoretically incoherent. Today’s court is, for better or worse, focused on principles -- and principle-lover No. 1 is Justice Anthony Kennedy, who will have the deciding vote in the California case.

The underlying legal-constitutional problem is that a union negotiates on behalf of all employees, but not all employees want to join the union. An individual has a free association and free speech right under the First Amendment not to belong to any club of which he or she doesn’t want to be a member, including a union.

But from the union’s perspective, allowing individuals to opt out of membership turns them into free-riders: They reap the benefits of union representation, including better wages, hours and benefits -- but without paying dues.

In a 1977 case called Abood v. Detroit Board of Education, the court split the difference. It held that employees couldn’t be obligated to join a union, because that would violate their free speech and association rights. But they could be made to pay money to the union in lieu of dues -- money that the union would be spending on their behalf in the course of collective bargaining. The court required unions to divide their expenditures into those promoting general political activity and those restricted to bargaining. Nonmembers had to pay the latter, but were exempt from paying for political speech with which they might disagree.

As compromises go, this one was plausible enough. The unions got to keep nonmembers paying something very close to dues, thereby avoiding the free-rider problem. Individuals got to say they weren’t members of the union, and didn’t have to pay for political advocacy with which they might disagree.

From the standpoint of First Amendment theory, however, the compromise was highly imperfect. If nonmember employees really have a right to free association, how can they be compelled to pay money to an organization they don’t want to join and that purports to represent them in bargaining with their employer?

What you need to know about the Friedrichs case for now is only that there’s no reason for the Supreme Court to agree to hear it except that four justices -- the number required to take a case -- think they might be able to get a fifth on board.

Almost exactly a year ago, the court held, 5-4, that the Abood compromise was unconstitutional when applied to what are called “partial” public employees, home health aides whom the court distinguished from ordinary union members such as the California teachers in the current case. Then, Justice Samuel Alito contradicted the logic of Abood, but apparently didn’t yet have the votes to overrule it or perhaps the willingness to try.

This time, Alito must think he has a good chance to get both Kennedy and Chief Justice John Roberts aboard. What justifies this confidence, particularly in the light of the fact that both Kennedy and Roberts exercised judicial restraint in the ACA case?

The answer lies in campaign-finance law -- another product of the compromising Burger court of the 1970s. The key campaign-finance compromise decision is 1976's Buckley v. Valeo. In that case, the court held that because money is speech, the First Amendment allows you to spend as much money as you want on your own campaign or promoting your own beliefs. Yet at the same time, the court held that individual contributions to campaigns could be capped and limited to avoid creating the appearance of political corruption.

Like the union compromise in Abood, the Buckley compromise was practically plausible but theoretically unattractive to the point of incoherence. If my money is my speech, why can’t I spend as much as I want to promote the candidate of my choice?

The Roberts court has rendered the Buckley compromise obsolete without formally overturning the decision. As a result of Citizens United, as interpreted by lower courts and other decisions, it’s now legal to spend as much money as you want on nominally “independent advocacy” on behalf of a political campaign. Thus, the superrich (and their corporations) can create super-PACs that get around campaign contribution limits. In reality, the line between independent advocacy and campaign advocacy is wafer thin. Yet the Roberts court has claimed that there is no appearance of corruption because there’s no official coordination.

The engine for this transformation was, of course, the First Amendment as interpreted by Kennedy, the closest thing to a free-speech absolutist on the current court. Alito, therefore, has good reason to think that Kennedy might well go along with overturning the Abood compromise. Last year, Alito said that paying money to the union amounted to compelled speech “on matters of public concern” -- and you can expect him to say the same about the teachers’ nondues dues here.

That leaves Roberts, who this term at least showed consistency in his judicial restraint by preserving the ACA and opposing gay marriage. The lesson of campaign finance is that Roberts hates to overturn famous compromise cases, which produces headlines of nonrestraint, but he doesn’t at all mind killing legal regimes using surgical strikes. Perhaps Roberts has something up his sleeve that would distinguish Abood to death rather than killing it outright. Or maybe he’ll just be tired of all that restraint and give in to the urge, shared by all eight of his colleagues, to reach the decisions that he likes. Either way, the drama is already starting to build.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net