I must confess that for some time I have wondered how today’s labor laws can be found to be in accord with the First Amendment of the U.S. Constitution. Yes, I confess there are some things from law school I have forgotten. Quite frankly, there are many things from law school I would prefer to forget. But apparently that is the case also for the U.S. Supreme Court itself.
The First Amendment reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Compare this simple statement to what the Supreme Court has allowed in our modern labor laws.
Under California law, public-sector employees in a bargaining unit may decide by majority vote to create an “agency shop” arrangement under which all the employees are represented by a union selected by the majority. Cal. Govt. Code Ann. §3502.5(a) (West 2010). While employees in the unit are not required to join the union, they must nevertheless pay the union an annual fee to cover the cost of union services related to collective bargaining (so-called chargeable expenses).
Closely related to compelled speech and compelled association is compelled funding of the speech of other private speakers or groups. See Abood, 431 U. S., at 222-223.
We made it clear that compulsory subsidies for private speech are subject to exacting First Amendment scrutiny and cannot be sustained unless two criteria are met. First, there must be a comprehensive regulatory scheme involving a “mandated association” among those who are required to pay the subsidy. Id., at 414. Such situations are exceedingly rare because, as we have stated elsewhere, mandatory associations are permissible only when they serve a “compelling state interes[t] . . . that cannot be achieved through means significantly less restrictive of associational freedoms.” Roberts, supra, at 623. Second, even in the rare case where a mandatory association can be justified, compulsory fees can be levied only insofar as they are a “necessary incident” of the “larger regulatory purpose which justified the required association.” United Foods, supra, at 414.
Our cases to date have tolerated this “impingement.”
“The primary purpose” of permitting unions to collect fees from nonmembers, we have said, is “to prevent non-members from free-riding on the union’s efforts, sharing the employment benefits obtained by the union’s collective bargaining without sharing the costs incurred.” Davenport, 551 U. S., at 181. Such free-rider arguments, however, are generally insufficient to overcome First Amendment objections.
Acceptance of the free-rider argument as a justification for compelling nonmembers to pay a portion of union dues represents something of an anomaly—one that we have found to be justified by the interest in furthering “labor peace.” Hudson, 475 U. S., at 303. But it is an anomaly nevertheless. All quotes from Justice Alito’s majority opinion in Knox v. SEIU.
The First Amendment declares with no equivocation that Congress many make no law, none, nada, regarding the right to free speech or association. The flaw in the analysis is that the Supreme Court strained out a logical nat and swallowed an illogical camel. Employees need not accept the name “member,” but they must accept and pay for the representation of the union. Huh? “A rose by any other name would smell as sweet.”
John Dickinson: What’s so terrible about being called an Englishman? The English don’t seem to mind.
Dr. Benjamin Franklin: Nor would I, were I given the full rights of an Englishman. But to call me one without those rights is like calling an ox a bull. He’s thankful for the honor, but he’d much rather have restored what’s rightfully his.
In this case, the “member” would much prefer to have his First Amendment rights restored to him.
A flood of confusion ensued. The court rightly recognized that compulsive subsidization of speech is closely related to compelled speech and compelled association. But subsidization can be compelled under very limited circumstances and that is if association is compelled. First, there must be a regulatory scheme mandating association. Second, the subsidization must be necessary to the mandatory association. Therefore, the Supreme Court used the regulation itself to justify the mandated association. The Supreme Court accepted the subsidization based on its observation that Congress has an interest in “labor peace,” not justice, not equity, just labor peace.
At this point, I am happy I forgot the rationale justifying our modern labor laws, since it is an “anomaly.” I suspect Justice Alito also wishes he could forget it.