Poll after poll reveals a bipartisan consensus that wealthy interests exert too much political influence, yet the Roberts Court is positioning itself to use the First Amendment to strike one more blow against the political power of ordinary Americans.
On Jan. 11, the court heard arguments in a relatively obscure case in which a group of public school teachers have invited the court to strike down California’s decision to permit unions, including public-sector unions, to set up what are known as “agency shops” – labor arrangements in which no one is required to join the union to maintain employment, but every employee is required to pay a “fair-share service fee” for representation in collective bargaining. All indications are that the Supreme Court will accept that invitation, overturn well-established precedent, and provide a rationale that easily will be extended to private-sector unions.
By promoting political participation among ordinary Americans, unions, like churches, the PTA, and the Rotary Club, are part of a virtuous circle of civic mindedness, political engagement and democratic accountability – one that the First Amendment was established to protect not undermine. More importantly, while the public is preoccupied with Citizens United and the flood of money it has unleashed into electoral politics, prominent political scientists attribute the solicitude of government officials to the preferences of the wealthy to the increasing organizational advantage of socioeconomic elites compared to the middle class. Affluent Americans today are estimated to be three times more likely to belong to civic organizations than middle-class Americans. Three times more likely, that is, to belong to organizations like the Chamber of Commerce, which has been a key sponsor of right-to-work legislation, adopted in twenty-five states, that prevents unions from compelling any individual from paying any fees as a condition of employment.
The First Amendment protects individuals in the service of preserving the necessary conditions of representative government. It thus shields individuals from compelled speech and association but equally compels the protection of existing civic associations. The labor regime sought by the petitioners undermines the latter half of that equation: Even pro-union workers might make the economically rational decision to withhold their fees, hoping that others will fund the union’s collective bargaining efforts. By contrast, the existing labor law regime in California, which is fully sanctioned by current precedent, provides no similar opportunity to free ride: Both union and nonunion employees are required to pay their fair share of the employment-related representation the union has a duty to provide on an equal basis. At the same time, California’s existing laws fully preserve the individual’s ability to oppose unionism insofar as individuals are free to refuse to join the union, free to withhold money that specifically subsidizes the union’s political speech, and free to join civic and political associations that oppose unionism.
Abu El-Haj is an associate professor of Law at Drexel University's Thomas R. Kline School of Law.