Released the same day as Hobby Lobby -to no public fanfare - Harris v. Quinn decided a case of little national importance on outrageous grounds purportedly rooted in the First Amendment while setting the stage for a decision of major national importance. The case raised the question whether home health workers could be forced to financially support a public union to which they were ideologically opposed. A forty year old precedent, Abood v. Detroit Board of Education, ruled that the First Amendment did not preclude the imposition of a fee to support a public employees union if they were members of the bargaining unit that the union served. In Quinn, the Court ruled that one of the interests at stake such as peace in the workplace was not implicated when the workers were spread out in many workplaces. Not unreasonable though the interest in not permitting free riders was obviously present. Undeterred by this, the Court insisted that Abood, a case that has served as the foundation of union contracts for many decades rested on questionable foundations, questionable because it did not take the First Amendment seriously enough.
In questioning Abood, the Court set the stage to impair the financial stability of public employee unions – this in a country in which the power of corporate-controlled states sadly needs a pluralistic base of dissenters. Abood is in fact a questionable decision, but not for the Court’s reasons. The case is problematic because it takes the First Amendment too seriously. It supposes that forced financial support of collective bargaining implicates the First Amendment. I do not now and never have gotten why forced taxation of this sort is speech. We are forced to pay for many things we do not like. Speech this is not.
But, you may say Buckley v. Valeo said that money was speech. Well it wasn’t. But First Amendment interests are affected by campaign finance regulations. Preventing contributions or expenditures for speech limits speech. The problem with Buckley was the failure to recognize the crucial interests in democracy and equality that outweighed the first Amendment interests in independent expenditures. Well, what about Hobby Lobby? Hobby Lobby said that forced contributions for insurance violated freedom of religion under a federal statute. True, but religious freedom extends beyond speech even to indefensible religious views of what counts as moral complicity. But what about the part of Abood I have not mentioned. Forced financial support for union political expenses violates the First Amendment. That is a correct result for the wrong reasons. The problem is not financial liberty; the problem is that government cannot through compelled financing support the political expenses of an institution that predictably will support one political party over another. But compelled financial support of collective bargaining is obviously distinguishable from supporting political speech.
Republicans have been attacking unions for many years and in recent years, public employee unions with even greater ferocity. I guess it should come as no surprise that a Republican court that has reached out to help corporations in many different contexts, would use a twisted version of the First Amendment to undermine public employee unions and strike another blow at a democracy it has done so much to dismantle.