UPDATE: Public Sector Union Dues: Grappling with Fixed Stars and Stare Decisis (Part I)

Legal Sidebari

UPDATE: Public Sector Union Dues:
Grappling with Fixed Stars and Stare Decisis
(Part I)
Updated June 27, 2018
UPDATE: On June 27, 2018, the Supreme Court issued its decision in Janus v. AFSCME, Council 31. A
Legal Sidebar on the Supreme Court's decision is available at this link.
The Supreme Court long ago described the First Amendment’s protection against compelled speech as a
“fixed star in our constitutional constellation.” This Term, the Court may decide whether it has steered too
far from that shining precept in the area of public employee union dues (or agency fees) in Janus v.
American Federation of State, County, and Municipal Employees, Council 31. Specifically, the Court will
consider whether to overrule its 1977 decision in Abood v. Detroit Board of Education, in which the Court
announced the basic test for determining the validity of “agency shop” arrangements between a union and
a government employer. Agency shop arrangements (sometimes called “fair share” provisions) require
employees to pay a fee to the union designated to represent their bargaining unit even if the employees are
not members of that union. The Abood Court held that these arrangements do not violate the First
Amendment insofar as the union uses the fees for “collective bargaining activities” and not “ideological
activities unrelated to collective bargaining.” In its October 2015 Term, the full Court heard oral argument
on whether to overrule Abood, but ultimately divided four-to-four on this question following the death of
Justice Scalia. Now that Justice Gorsuch has joined the bench, it remains to be seen whether a majority of
the Court will reaffirm Abood or chart a new course.
Part I of this two-part Sidebar provides general background on Abood and the case law leading up to
Janus. Part II then discusses the perspectives Justice Gorsuch may bring to Janus and the potential
implications of the decision for public sector collective bargaining and compulsory fees more broadly.
First Amendment Principles and Abood. As background, the Supreme Court has interpreted the First
Amendment’s Free Speech Clause to bar the government not only from prohibiting speech, but also from
compelling private speech that is contrary to an individual’s personal beliefs. The Court has held
moreover that money spent in support of speech can be a form of protected expression. In Abood, the
Court considered the intersection of both of these First Amendment principles in a case about compelled
subsidization.
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Abood involved a First Amendment challenge to an agency shop arrangement brought by public school
teachers who opposed certain union activities (or public sector collective bargaining in general). The
Supreme Court held that compelling public employees to support their union representative does raise
First Amendment concerns, and that the government may not condition an employee’s job on subsidizing
an ideological cause that the employee opposes. The Court held that nevertheless, “important government
interests” justified the collection of agency fees for activities germane to collective bargaining. The Court
reasoned that the government’s ability to bargain with a single representative avoids conflicting demands
from rival unions, thereby promoting “labor peace.” To that end, agency fees minimize the incentive for
non–dues-paying employees to “free ride” on the benefits that the union obtains for all employees in the
bargaining unit (whom by law the union must represent fairly regardless of union membership). In a
separate opinion, Justice Powell (joined by Chief Justice Burger and Justice Blackmun) criticized the line
the Court drew between collective bargaining and ideological (or political) activities, finding no
meaningful difference between the two in the public sector because “‘bread and butter’ issues” like
“wages, hours, vacations, and pensions” directly impact matters of political importance, such as state and
local budgets, tax rates, and public service offerings.
Key Decisions After Abood. In the years since Abood, the Court has attempted to define the contours of
what is “germane” to collective bargaining (also referred to as “chargeable” expenses), upholding, for
example, expenditures on national conventions to elect union officers but not charges for political
lobbying. The Court also has interpreted the First Amendment to require procedural safeguards to protect
the rights of objecting employees, holding that unions may not use a basic rebate program to refund
objecting employees for nonchargeable expenses and instead must (among other things) explain the basis
for the agency fee and give employees a “reasonably prompt opportunity” to challenge the fee amount.
In recent years, however, the Court has expressed concern with certain applications of Abood, even
questioning the constitutional analysis underpinning the 1977 decision. In the 2012 case of Knox v. SEIU,
Local 1000, Justice Alito, on behalf of himself and four other members of the Court (Chief Justice
Roberts and Justices Scalia, Kennedy, and Thomas) criticized one of the key justifications for agency fees
(i.e., the free rider concern), noting that such “free-rider arguments” generally are “insufficient to
overcome First Amendment objections.” The Court cited several examples of associations that engage in
work that benefits a larger group without requiring nonmembers to contribute, including parent-teacher
associations and lobbying groups. The Knox Court also questioned the procedural mechanisms that Abood
and subsequent decisions appeared to endorse: “By authorizing a union to collect fees from nonmembers
and permitting the use of an opt-out system for the collection of fees levied to cover nonchargeable
expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can
tolerate.” Without overruling Abood, the Court held that public sector unions must obtain affirmative
consent from their employees before levying a special fee or dues increase to finance political activities.
Two years later, in Harris v. Quinn, the Court (on behalf of the same Justices in the Knox majority)
distinguished Abood, holding that the case was not controlling with respect to an agency shop
arrangement that did not involve “full-fledged public employees.” In so holding, the Harris Court
described Abood as “questionable on several grounds,” resulting in what the majority viewed as the
repeated struggles to differentiate between chargeable and nonchargeable expenses. The Court echoed the
concern Justice Powell expressed in Abood about the overlap between collective bargaining and political
advocacy in the public sector. In contrast, Justice Kagan, joined by Justices Ginsburg, Breyer, and
Sotomayor in dissent, posited that Abood is consistent with the Court’s decisions, which have “long
afforded government entities broad latitude to manage their workforces, even when that affects speech
they could not regulate in other contexts.” The silver lining in the majority’s opinion, according to the
dissenting Justices, was that the Court declined an invitation to overrule Abood, which the dissent
described as “deeply entrenched” and “the foundation for not tens or hundreds, but thousands of contracts
between unions and governments across the Nation.”

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A year later, the Court granted certiorari in Friedrichs v. California Teachers Association to consider
whether to overrule Abood. During the January 11, 2016 oral argument, several of the Justices expressed
views on Abood that appeared to be consistent with the Harris Court’s criticisms, including Justice Scalia,
who remarked that “everything that is collectively bargained with the government is within the political
sphere, almost by definition.” However, Justice Scalia passed away the following month, and shortly
thereafter, on March 29, 2016, the Court issued an unsigned, one-line decision affirming the judgment of
the Court of Appeals “by an equally divided Court,” thus upholding Abood. The decision in Friedrichs
did not identify the positions of the Justices, but some commentators suspected that the Court divided in a
similar fashion to the decisions in Knox and Harris.
For a discussion of how these arguments may play out in Janus and the possible implications for
collective bargaining in the public sector, please see Part II of this Sidebar.


Author Information

Victoria L. Killion

Legislative Attorney




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