Public Sector Unions Just Got Brutalized In The Supreme Court
WASHINGTON, DC — Let’s not beat around the bush.
Public sector unions just had a simply terrible day in the Supreme Court on Monday. Justice Antonin Scalia, the justice who seemed most inclined to agree with them prior to oral argument, took a hard turn against them within just a few minutes of argument. Justice Anthony Kennedy, who is normally this closest thing this Court has to a swing voter, appeared to grow increasingly angry with the unions as the argument proceeded. Plus the Supreme Court has already droppedtwo big hints that it’s ready to cut of a major source of funding for public sector unions. Oral arguments cannot always predict the outcome of the case — just ask the millions of Americans who are now insured because of Obamacare — but if they offer any predictive value, a lot of unions are very frightened right now.
Friedrichs v. California Teachers Association involves what are alternatively referred to as “agency fees” or “fair share fees,” which unions charge non-members to recoup the cost of services performed for those non-members. As ThinkProgress previously explained,
Unions are required by law to bargain on behalf of every worker in a unionized shop, even if those workers opt not to join the union. As such, non-members receive the same higher wages (one study found that workers in unionized shops enjoy a wage premium of nearly 12 percent) and benefits enjoyed by their coworkers who belong to the union.Absent something else, this arrangement would create a free-rider problem, because individual workers have little incentive to join the union if they know they will get all the benefits of unionizing regardless of whether they reimburse the union for its costs. Eventually, unions risk becoming starved for funds and collapsing, causing the workers once represented by a union to lose the benefits of collective bargaining.To prevent this free-rider problem, union contracts often include a provision requiring non-members to pay agency fees.
In essence, these fees exist to ensure that non-members do not get something for nothing. Instead, they require the non-members to pay their share of the costs of obtaining the benefits of unionization.
The plaintiffs in Friedrichs argue that such fees violate the First Amendment, at least with respect to public sector unions. As a general rule, the First Amendment does not permit the government to compel someone to say something they disagree with, and the plaintiffs claim that requiring non-union members to subsidize collective bargaining by a union that they may not agree with essentially rises to the level of compelled speech.
Were this a case where the government actually required private citizens to subsidize the union’s bargaining, the plaintiffs may have a point. The First Amendment is strongest when government uses its power as “sovereign” to compel individual action. It is much weaker, however, when the government only seeks to manage its own employees. As Justice Kennedy explained in his opinion for the Court in Garcetti v. Ceballos, “government employers, like private employers, need a Public Sector Unions Just Got Brutalized In The Supreme Court | ThinkProgress:
