Should the First Amendment be interpreted to protect workers who ideologically object to paying fees to unions who represent them in the collective bargaining process? The question was explored before the Supreme Court in oral argument on Monday in the case of Friederichs v. California Teachers Association, and it appears the Court is about to overrule Abood v. Detroit Board of Education which ruled that the First Amendment provided no protection in these circumstances. As my colleague Michael Dorf observes in his excellent column yesterday, a key moment in the argument occurred when Justice Sotomayor asked the plaintiff’s attorney whether the state could simply fund unions from tax revenues to assure adequate representation for workers in the collective bargaining process. For Dorf, the point of the question is if government can tax to support unions (or, more precisely, tax employees to support unions without violating the First Amendment), why can’t it eliminate the middle man by requiring the employees to give the money directly to unions rather than sending the money to government and then back to the unions?
In 1980, I wrote an article (“Government Speech”) in which I argued that the issue posed by Sotomayor’s question was key to the inquiry. It seems to me that that if government can tax to support collective bargaining by unions, it can structure the financial arrangements to avoid the middle man without violating the First Amendment. On the other hand, I do not think government can use tax money to fund the election activities of unions. Since unions uniformly (or almost uniformly) support Democrats, this would be tantamount to using tax money to support the Democratic Party. Accordingly, Abood rightly held (though the opinion did not follow this analysis) that the First Amendment prevented government from forcing objecting members of a bargaining unit to fund the political election expenses of their unions.
In my view, however, Abood wrongly held that the First Amendment prevented government from forcing objecting members of a bargaining unit to fund the lobbying expenses of their unions. The difference is that government could decide that it wants the input of particular parties including unions, and it could use tax dollars to get that input. Since it could tax, it should be able to structure the arrangements so that the money goes directly to the unions rather than to the government and back to the unions.
Not much reflection (though I have missed the point in the past) should lead one to the conclusion that Hobby Lobby was wrongly decided. Nothing in the Constitution prevents government from taxing employers to support insurance. So too, government should be able to structure the financial arrangements so that the money goes directly to the insurance companies. Of course the employer’s religious freedom is still burdened. But taxpayers are frequently taxed to support activities to which they are religiously opposed without a constitutional violation. The financial scheme in Hobby Lobby was the functional equivalent of a tax, and like the compulsory extraction of funds in Abood for collective bargaining, it should have been upheld.