The Eminent Libertarians Who Might Save Public Sector Unions

The Supreme Court will hear arguments this month in a case challenging the constitutionality of so-called agency fees, payments that workers represented by a union must pay if they do not wish to be dues-paying members. Conservatives have been crusading against these fees for years on First Amendment grounds, and with Justice Neil Gorsuch on the bench, the labor movement’s odds seem grim.

But last month, unions got a surprising lifeline from an unlikely friend: Two prominent conservative legal scholars filed an amicus brief in Janus v. AFSCME, Council 31 — the case before the court — urging the justices to uphold a 1977 decision that ruled the agency fees constitutional.

The case has gotten relatively little attention, but it is difficult to overstate its political importance. A decision striking down agency fees, also known as fair-share fees, could lead to massive free-riding and consequently, decimate public sector union coffers. Unions subsidize much of  the Democratic Party’s on-the-ground operations, which is another reason conservatives want to see their funds depleted. Indeed, the rightward shift in states like Wisconsin has coincided with the snuffing out of public unions — though it is no coincidence. Studies have shown that crushing unions can move the political needle by as much as 3 to 4 points, which in battleground states is the difference between winning and losing.

The case is in many ways a replay of 2016’s Friedrichs v. California Teachers Association, in which 10 public school teachers challenged the constitutionality of their mandatory agency fees. The teachers, funded by conservative groups, claimed their fees subsidized political speech in violation of their rights. The 9th Circuit Court of Appeals disagreed, but it seemed likely the Supreme Court would side with the challengers. Yet after Justice Antonin Scalia unexpectedly died in his sleep in February 2016, the justices issued a split 4-4 decision, upholding the appellate court ruling.

Gorsuch’s addition to the bench has given unions much to be anxious about. In 2017, Gorsuch sided every time with Clarence Thomas, the court’s most conservative justice, and though there’s still a relatively small sample size of cases to judge Gorsuch’s record, no one doubts that he leans right. 

The surprising brief was filed by Eugene Volokh, a law professor at UCLA who specializes in First Amendment issues, and William Baude, a constitutional law professor at the University of Chicago. Neither one is especially fond of unions. Still, they argue that mandatory fair-share fees pose no First Amendment issue.

“Compelled subsidies of others’ speech happen all the time, and are not generally viewed as burdening any First Amendment interest,” they write. “Just as non-union members may find many reasons to disagree with a public union’s speech, there are countless grounds to object to other speech supported by government funds. Many people undoubtedly disagree with a great deal of public and private speech funded by taxes or other compulsory payments. There is, however, no First Amendment interest in avoiding those subsidies.”

In other words, the government regularly compels taxes and uses that money to pay for things that taxpayers may politically disagree with, and these union fees should be treated no differently. Volokh and Baude cite public school curriculum and crisis pregnancy centers as two common examples. They argue it’s well within the government’s authority to compel their employees to pay fees for a governmental interest – in this case, maintaining labor peace – even if that money may subsidize things that some personally object to.

The government regularly compels taxes and uses that money to pay for things that taxpayers may politically disagree with, and these union fees should be treated no differently.

In the 1977 precedent-setting decision, Abood v. Detroit Board of Education, the Supreme Court upheld collective bargaining fees in the public sector, reasoning that the government has an interest in preventing free-riders from taking advantage of the union’s bargaining efforts. (The court distinguished between collective bargaining fees and mandatory payments for a union’s political activities, deeming the latter unconstitutional.) The decision shaped public sector unions for the next four decades. But in 2012, the Supreme Court heard a case about union political spending, and in the majority opinion authored by Justice Samuel Alito, the court signaled it might like to overturn Abood down the line.

Charlotte Garden, a liberal constitutional law professor who also filed a Janus amicus brief on behalf of labor law scholars, told The Intercept she thinks there is a greater likelihood that conservative justices and their clerks will take Baude and Volokh’s argument seriously, precisely because the two don’t necessarily favor unions as a policy matter. In other words, they could be seen as “honest brokers.” Additionally, Garden said, because Volokh and Baude “are household names and academics who write from a more conservative/libertarian perspective,” there’s a greater chance that the justices and their clerks will “pull their brief from the (large) pile of amicus briefs for a closer read.”

Indeed, observers also suspect the brief may resonate with Gorsuch, who name-checked Baude last month during an oral argument. But in an interview with The Intercept, Baude said he does not think their brief would appeal to one justice in particular, or even a subset of justices, because their argument is based on first principles and logic. “I think all the justices are pretty committed to free speech,” he said. “They just have a lot of hard cases between what’s speech and what’s not, and this is an example of one of those boundary cases.”

Sam Bagenstos, another liberal constitutional scholar who filed his own Janus amicus brief on behalf of Pennsylvania Gov. Tom Wolf and other elected state and local officials, told The Intercept he thinks the Volokh/Baude brief is persuasive and will be taken seriously. “Eugene Volokh may be the most prominent libertarian legal scholar, and Will Baude is well-known as a rising star among libertarian scholars,” he explained. “If the First Amendment permits the government to force me to pay taxes to pay for an office that spreads propaganda about crimes committed by immigrants,” he said, “it’s hard to see how the First Amendment forbids the government from collecting a fee from its workers to pay their fair share of the costs of negotiating and administering collective bargaining agreements.”

While prominent libertarian support for the union position may be short-lived, it has undeniably come at a critical moment.

If the conservative justices need any more convincing, they may be swayed by a brief filed by Charles Fried, an eminent libertarian scholar at Harvard. Fried, who co-authored the brief with Robert Post, a prominent liberal law professor at Yale, notably served four years as solicitor general in the Reagan administration. Like Volokh and Baude, he is something of a household conservative name that might draw closer attention from right-leaning justices and clerks.

Their brief argues against the position of Justice Samuel Alito — a George W. Bush appointee — which is that requiring dues from non-union members is always a First Amendment violation.

“The position Charles Fried and I took was that the Alito position is inconsistent with the First Amendment analysis of employee speech that [Justice Anthony] Kennedy had set forth in an important decision called Garcetti,” Post explained in an interview with The Intercept. “Garcetti [v. Ceballos] was a case about whether public employees have First Amendment rights, and Kennedy, speaking for the court, said it depends on whether they’re speaking as employees or as citizens.”

So for example, Post explained, if you worked for the Social Security Administration, the state could compel you to talk to clients and explain their Social Security options, regardless of whether you disagree politically with those options. “Kennedy was trying to make regulation of employee speech not a constitutional question every time it happened, but the Alito position completely undermines this,” Post said. “It has to be contextual, and you have to be much more nuanced about the sort of speech you’re talking about subsidizing.”

Fried and Post agree with the Supreme Court’s ruling in Abood, but think there is a “narrower and more doctrinally consistent” standard the court could use for answering free speech questions going forward.

“I was kind of surprised to see [Baude and Volokh] make their argument,” Post said. “Eugene is not known for having modest views of the First Amendment.”

The reactions to the brief have been mixed, Baude said. “In a sense, I made some friends and lost some friends. Some people I barely know who I often disagree with reached out to say, ‘Wow I am really glad you did that,’ and some people who I usually agree with told me, ‘It’s really unfortunate you got this one wrong’ or ‘You’re on the wrong side of this one.’”

The best counterargument Baude had heard, he said, was from those who asked if the authors’ logic would justify the government compelling individuals to contribute to one political party as a condition of employment. The Supreme Court declared such patronage systems unconstitutional in the 1970s and ’80s, and some could say Baude and Volokh’s argument offers a tacit endorsement of the spoils system. “But I think that’s a little different,” Baude said. “Those cases are more about voting and expression. However, you can start to construct a hypothetical that can push a little on our view, and if you think unions are really partisan — which some especially anti-union individuals do — then this starts to feel more like those cases.” (Volokh also responded to some of his critics online.)

The oral argument will be held on February 26, and a decision is expected by June. How the court will rule is anyone’s guess. And while prominent libertarian support for the union position may be short-lived, it has undeniably come at a critical moment.

Top photo: Pro-union protesters rally in front of the U.S. Supreme Court building Jan. 11, 2016 in Washington, D.C. The high court is hearing arguments in the Friedrichs v. California Teachers Association case.