On Monday, the Supreme Court heard oral arguments in Friedrichs v. California Teachers Association, a case that challenges the compelled union dues paid by millions of organized public-sector employees.
Friedrichs argues that these fees violate the First Amendment’s protection of freedom of speech because they fund union political speech that diverges from the beliefs of many union members who pay them. Unions spend millions of dollars each year supporting controversial issues like abortion, gun control, and radical environmentalism.
While unionized employees are able to get out of paying the portion of their dues that funds spending on overt political positions through a complicated and often intimidating opt-out process, they are required to pay dues for representational activities—known as agency or “fair share” fees. Friedrichs is asking the Court to overturn that requirement for public-sector employees on the grounds that all union spending is political because it aims to influence government policy.
How are representational dues that fund bargaining political? Because every dollar spent by the government on public sector employee compensation is a dollar not spent on libraries, police, or returned to the taxpayers. As the Court said in its 2014 Harris v. Quinn decision: “[C]ore issues such as wages, pensions, and benefits are important political issues.”
For example, lead plaintiff Rebecca Friedrichs disagrees with the “Cadillac” compensation packages negotiated by her union through her coerced representational dues because it threatens her state’s fiscal solvency. “When my union goes to the legislature and bargains for Cadillac pension plans on my behalf at the expense of the national economy, at the expense of my community,” says Friedrichs. “I have a moral dilemma with that.”
Representational dues often are used to support specific public policy. In Friedrichs’ case, her union supports controversial policies like teacher tenure, last-in, first-out hiring policies, and rules that make it almost impossible to fire a bad teacher. Thousands of teachers like Friedrichs oppose these positions because of the negative impact they have on millions of American schoolchildren.
Unlike the private workplace, where compensation and employee decisions are based on economics, in the public workplace, these decisions are political. When union dues help elect the people that are sitting across the bargaining table, economic realities are often ignored. We have already witnessed this phenomenon from Stockton to Chicago. But public-sector union members are taxpayers too. And compelling them to support the advancement of political policies they oppose seemingly violates the First Amendment.
And what about private-sector employees? While they may not be freed from paying representational dues to a union they don’t support with this case, these workers still have hope. The Employee Rights Act, legislation introduced by Senator Orrin Hatch and Congressman Tom Price that is currently before Congress, would vastly increase the workplace rights of all unionized American employees.
In Harris v. Quinn, the Court ruled it’s a “bedrock principle” that “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.” Friedrichs seeks to take this principle to its logical conclusion by allowing public-sector employees to opt-out of fees for representational activities, which are inherently political.
Such a ruling would strengthen the First Amendment and increase the rights of millions of American employees. The Court should rule in her favor, and Congress should pass the ERA.
Richard Berman is the executive director of the Center for Union Facts.