Union fees case to be heard

U.S. Supreme Court’s conservatives could strike down dues on free-speech grounds.

WASHINGTON — Paying union dues and baking a wedding cake may not seem like classic examples of free speech — except perhaps at the Supreme Court.

This year, the high court is poised to announce its most significant expansion of the 1st Amendment since the Citizens United decision in 2010, which struck down laws that limited campaign spending by corporations, unions and the very wealthy.

Now the “money is speech” doctrine is back and at the heart of a case to be heard Monday that threatens the financial foundation of public employee unions in 22 “blue” states.

Like Citizens United, the union case is being closely watched for its potential to shift political power in states and across the nation.

The legal attack on the campaign funding laws was brought by conservative activists who hoped that the free flow of money from wealthy donors would boost Republican candidates. And since 2010, the GOP has achieved big gains in Congress and in state legislatures across the nation.

Conservatives also believe the attack on mandatory union fees has the po-

tential to weaken the public sector unions that are strong supporters of the Democratic Party.

“This is a big deal,” Republican Illinois Gov. Bruce Rauner said in September on the day the Supreme Court said it would hear the lawsuit he initiated. A court victory would be “transformative for the state of Illinois, transformative for America and the relationship between our taxpayers and the people who work for our taxpayers.”

Still pending before the high court is the case of the baker from Colorado who says he has a free-speech right as a Christian to refuse to create a wedding cake for a same-sex couple. A ruling in his favor would carve out a religious-freedom exemption to the civil rights laws in the 21 states that require businesses open to the public to provide full and equal service to all, including gays and lesbians.

At issue in the union case is whether public employees can be required to pay a fee to cover the cost of collective bargaining and resolving grievances, even if they have personal objections to the union.

In 28 states, “right to work” laws prohibit contracts that require employees to join or support a union. In recent years, formerly union-dominated states, including Michigan, Wisconsin and Indiana, adopted such laws.

But in 22 other states, including California, New York and Pennsylvania as well as Illinois, the law allows employees to form a union which in turn has a legal duty to represent all the employees.

In those states, school boards, transit districts, police departments and state agencies may negotiate contracts that require all workers — even those who do not join the union — to pay a socalled “fair share fee” for the benefits they would receive along with union members, such as higher pay scales.

More than 40 years ago, the Supreme Court gave this arrangement its constitutional blessing. In the case of Abood vs. Detroit Board of Education the justices said public employees have a free-speech right to opt out of paying the full dues to a union if some of the money is spent for political contributions or lobbying. However, the court said, they may be required to pay a lesser fee to support the union’s workplace activities. Otherwise, “free riders” could benefit from a better contract but pay nothing.

The Illinois lawsuit asks the court to overturn the Abood decision and strike down forced union fees nationwide.

The American Federation of State, County and Municipal Employees “takes political positions that he doesn’t support. They advocate for more spending and higher taxes,” said Jacob Huebert, a lawyer for the Liberty Justice Center who represents the named plaintiff in the case, Mark Janus, a child support specialist for a state agency in Springfield, Ill.

For its part, the union called the case “a political attack on the freedoms of working people by the same corporate billionaires and corporate interests that have for years rigged our economy and politics in their own favor.”

Rauner’s challenge to union fees is likely to win favor from the court’s five more conservative justices, all of them Republican appointees. Two years ago, the court was set to strike down mandatory union fees in a case brought by a California schoolteacher. But the sudden death of Justice Antonin Scalia left the court split 4 to 4.

Once Justice Neil M. Gorsuch, appointed by President Trump, was confirmed to fill Scalia’s seat, the court said it would decide the union fees issue in the case from Illinois.

“With Gorsuch at the Supreme Court, we believe we will prevail,” Rauner said in December.

Union leaders see the case as a well-funded political attack on public employees. “This is about power. They are attacking us because we fight for a better life for working people,” said Randi Weingarten, president of the American Federation of Teachers. They say they are reasonably confident members will continue to pay their dues, even if they are no longer required to do so.

Beyond politics, however, the legal question before the court is whether requiring public employees to pay a fee to a union to cover the cost of collective bargaining amounts to “compelled speech” that violates the 1st Amendment.

For most of American history, government employees did not have protected rights under the Constitution. The justices often cite Oliver Wendell Holmes’ comment in 1892 that a policeman “may have a constitutional right to talk politics, but he has no constitutional right to be policeman.”

It was not until the late 1960s that the court first held that public employees had free-speech rights, but only when they were speaking as citizens on a matter of public concern.

But the court has insisted public employees do not have rights to speak out about problems in the workplace. In 2006, the court said the 1st Amendment does not generally protect government whistleblowers from being punished or demoted. In that case, Garcetti vs. Ceballos, the court ruled 5 to 4 against a Los Angeles county lawyer who said he was demoted for having revealed a police officer may have supplied false information in a search warrant. The court’s conservatives sided with their employer. “A government entity has broader discretion to restrict speech when it acts in its role as employer,” and a public employee “must accept certain limitations on his or her freedom,” Justice Anthony M. Kennedy wrote.

Harvard law professor Charles Fried, the U.S. solicitor general under President Reagan, filed a brief in the union case questioning how the court could say the 1st Amendment protects public employees from paying a union fee, but not for speaking out about problems in an agency.

Meanwhile, several prominent 1st Amendment scholars with conservative credentials filed briefs questioning the premise that union fees involve speech.

“We think this is not compelled speech. It’s a compelled payment of money,” said UCLA law professor Eugene Volokh.

He noted lawyers, doctors and other licensed professionals are required by state laws to pay fees for continuing education classes, including on topics some may oppose.

The Supreme Court upheld mandatory bar dues for lawyers in 1990, relying on the Abood decision. And in 2000, the court rejected a free-speech challenge to the required student fees at state universities. Conservative students at the University of Wisconsin had sued, contending they should not be forced to subsidize left-leaning speakers and student groups.

But Justice Samuel A. Alito Jr. has made clear he thinks the Abood decision must go. It conflicts with the “bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support,” he wrote.

His words in turn prompted lawyers for the National Right to Work Foundation to challenge Abood directly. They sued and fell short in a case in 2014, then again with the California teacher’s case and once again were frustrated.

The justices will hear Janus vs. AFSCME on Feb. 26, expecting this time to finally resolve the dispute.