The Supreme Court will soon consider whether requiring government employees to pay union dues, even if they disagree with union activity, violates the First Amendment.  This question has previously been answered in the negative in Abood v. Detroit Board of Education.  The Supreme Court may, however, overrule Abood.  That decision would likely provoke political outcry from union supporters and possibly more muted legal outcry from rule-of-law types, like me, who think the Court should not easily overturn its precedent.  There is one snag that does make the stare decisis question harder for me:  Abood is fairly incoherent.

Some have argued that Abood is inconsistent with large swaths of First Amendment law.  Others argue instead that overruling Abood would create jurisprudential inconsistencies.  Perhaps worse, I believe Abood is inconsistent with itself.  Abood, in two different portions of its opinion, takes two different views on whether forced funding of a union’s activities creates a First Amendment harm.  Abood held that requiring government employees to fund collective bargaining activity was not a free speech violation, because the employees remain free to express their disapproval of the union’s position.  But Abood also held that requiring government employees to fund a union’s expression of political views was a First Amendment violation, even though the employees also largely remain free to express their political views.

Even if this current Court can distinguish between a union’s expenditures on collective bargaining and on political expression, it should not do so based on the murky logic of Abood.

The current state of the law on unions and the First Amendment distinguishes between union dues spent on political speech and dues spent on negotiating activities.  The government cannot condition employment on paying agency fees to a union that uses the money to fund political speech.  However, the government may permit unions, including unions that represent government employees, to require non-union members to pay agency fees that fund a union’s negotiating activities.  This may soon change.

On February 26, the Supreme Court will hear oral argument in Janus v. American Federation of State, County, and Municipal Employees, Council 31.  The Court is explicitly considering whether to overrule Abood v. Detroit Board of Education, which held that public sector unions are permitted to require government employees to pay agency fees to fund a union’s negotiating activity.  After Janus, public sector unions may not be permitted to require non-union members to pay agency fees, even if those “fair share fees” solely fund negotiating activity.

At issue in Janus is the Illinois Public Labor Relations Act (IPLRA).  This state law grants unions the sole power to act as the bargaining agent for a unit’s employees, even those who do not wish to join the union.  The law further allows the union to collect dues to fund matters affecting wages, hours, and conditions of employment.  Petitioner Mark Janus, a child welfare specialist, is a state employee who does not belong to the union that represents him.  He objects to being required, as a condition of his employment, to pay monthly fees to the union, funding what he argues is advocacy to which he is ideologically opposed.

The critical questions the Supreme Court must answer in Janus are (1) whether public sector unions are more restricted by the First Amendment than private sector unions when seeking to compel employees to fund union activity, (2) whether a clear, legally coherent line can be drawn between funding a union’s negotiating activity and a union’s political speech, especially when the union is a government sector union, and (3)  whether Abood was so wrongly decided that stare decisis should be abandoned and prior Supreme Court precedent should be overruled.

These are all difficult questions.  The answer to these questions should not come from the internal logic of Abood, however, which makes little logical sense.  Here’s why:

Under the First Amendment, the government cannot condition employment on compelling an individual to take positions with which she disagrees.  I, as an attorney, cannot be compelled to swear that I support my state’s football team in order to join my state’s bar.  Mark Janus, the Petitioner, hinges his claim on the argument that the state further cannot compel individuals to supply money to fund political advocacy to which they are opposed.  As an example, the union to which Janus must pay dues is fighting against the Illinois governor’s desire to implement merit-based pay measures to increase the efficiency of state employees.  Janus may not agree with the union’s stance opposing merit-based pay, but he must either fund the union’s negotiating activities or vacate his position.

Because Janus works for the government, he argues that he is differently situated than a private sector employee who must fund her union’s negotiating activity.  All public sector union activity is political advocacy, he argues.  Even contract negotiations about wages change government policies, because the union negotiates with the government.  In essence, Janus is being forced to pay for lobbying activities that he may believe will make the state government less efficient.  His money is thus being used to fund political speech, precisely because he works for a government organization, and his union works to change government dealings with its employees.

Abood held otherwise.  According to the majority in Abood, state action was also implicated in the prior case of Railway Employees’ Department v. Hanson, which upheld a federal law that superseded state law by allowing a railway union to require funding from all railway employees.  The federal law that trumped the state “right to work” law triggered state action, but the Hanson Court held there was no First Amendment violation.  Requiring railway workers to pay for contract negotiations, the Hanson Court held, is not tantamount to “forcing ideological conformity.”  Abood held that the same was true for government unions that require employees to contribute agency fees.  According to the Abood Court:

The very real differences between exclusive agent collective bargaining in the public and private sectors are not such as to work any greater infringement upon the First Amendment interests of public employees. A public employee who believes that a union representing him is urging a course that is unwise as a matter of public policy is not barred from expressing his viewpoint. Besides voting in accordance with his convictions, every public employee is largely free to express his views, in public or private, orally or in writing. With some exceptions not pertinent here, public employees are free to participate in the full range of political activities open to other citizens.

Abood’s extension of Hanson to government employees was based on the premise that government employees remain free to express their viewpoints on a range of issues, and thus their agency fees do not restrict their speech.  But Abood also, separately, makes clear that federal law cannot intervene to assist unions in requiring agency fees to fund ideological causes.  According to Abood, First Amendment principles “prohibit the [teacher’s union] from requiring any of the appellants to contribute to the support of an ideological cause he may oppose as a condition of holding a job as a public school teacher.” Abood holds that employees’ agency fees can fund only collective bargaining activity, not political activity.  If Abood took its own reasoning seriously, public and private unions could also require dues to fund ideological speech, since members would remain free to express their views on these issues as citizens.

Abood may simply be balancing interests.   Collective bargaining activities may not implicate First Amendment interests as strongly as explicitly ideological activities, and thus the ability to speak in other contexts may matter more to the constitutional calculus.  The Court in Abood noted that, although forcing subsidization of collective bargaining impairs some First Amendment interests, “such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.”  If the Abood Court wanted to balance interests in this way, however, it should have done so more explicitly.  Abood never makes clear what kind of constitutional scrutiny attaches to forced funding of collective bargaining activity or of ideological activity.  Using tiers of balancing in the First Amendment context is also generally frowned upon.

As Abood seems to forget and then remember, just because individuals have the right to express viewpoints in other contexts does not mean they can be compelled to support speech with which they disagree.  Relatedly, the recently decided Matal v. Tam stands for the proposition that the government cannot discriminate on the basis of viewpoint when deciding whether to grant a band a trademark for its name, even if the band can still express the speech without the trademark.  If funding collective bargaining is inherently political, it doesn’t matter how many other contexts Janus can use to express his speech.

There are good legal arguments on both sides of Janus.  But the Court cannot rest its decision on Abood’s logic, which contradicts itself by taking different positions on the forced funding of union activity within the same opinion, without sufficiently explaining what it is doing.  What the Court must do instead is determine, in a legally relevant way, whether there is a material difference between collective bargaining and political speech for public sector unions.  Some of the briefs make good arguments that this distinction is illusory and unworkable, and that requiring non-union members to pay dues is not necessary for the continuance of union efficacy.  On the other end of the spectrum, others argue that Abood  was “unduly generous” to free speech principles, and that the First Amendment does not prohibit requiring agency fees to fund any sort of activity, even ideological activity.  There are good reasons, then, made by those who support both Petitioner and Respondent, to think that Abood deserves little deference.