I argued in a recent post here that the Supreme Court has prepared the way to overturn a 40 year old precedent that has protected the financial stability of public unions. Abood v. Detroit Board of Education held that objecting members of a bargaining unit could not be forced under the First Amendment to pay union dues used for its political expenditures, but could be compelled to pay union dues used to support collective bargaining, not because the First Amendment was inapplicable, but because First Amendment standards were satisfied. On the last day of the term this year, Harris v. Quinn criticized Abood’s view that First Amendment standards are satisfied when objecting members of a bargaining unit are forced to pay dues to support collective bargaining. I argued that Abood was rightly decided for the wrong reasons. I do not think the First Amendment rights of an individual are implicated when he or she is forced to fund something with which he disagrees. Here as elsewhere stupid slogans aside money is not speech. When money is taken from us we do not speak. Abood is right because it is legitimate for government to fund the collective bargaining efforts of unions; it is not legitimate for government to give money for the political expenses of an entity known to support one political party over another.
The question I want to raise in this post is this: I understand why someone can think that being forced to support political ideologies to which they are opposed violates their personal First Amendment rights. But what does collective bargaining have to do with the First Amendment? So far as I know, we have not yet come to the day when the regulation of collective bargaining is thought to trigger First Amendment scrutiny. Perhaps the idea is that freedom of speech is implicated whenever individuals are forced to subsidize ventures to which they are ideologically opposed. Leave aside, the chaos this would impose on the tax system, is it possible that Hobby Lobby was really a free speech masquerading as a freedom of religion of case? The answer provided in Abood is that individuals have a First Amendment interest (albeit outweighed by other interests) in not being forced to subsidize the position taken in the speech of unions taking place in the collective bargaining process. The Court argues that many of the positions taken by public employee unions are of public interest in a manner that is reminiscent of the Court’s attempt in the Virginia Pharmacy case to suggest that advertising is of public interest. The truth is that the game of finding public interest is easy to play. But this leads back to the question whether the regulation of collective bargaining triggers a First Amendment test if it is so saturated with speech of public interest. And if collective bargaining is subject to the imperialism of the First Amendment, why not contract law in general?
What the main goals of the First Amendment might be is much contested. But you would have to get up very early in the morning to suggest that the First Amendment is best interpreted to regulate collective bargaining in any fashion, let along with the intrusive heavy duty tests that inevitably follow from its applications.
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