In Friedrichs case, First Amendment freedom must trump federalism

Jacob Hueber Dec. 8, 2015, 10:58am


On Jan. 11, the U.S. Supreme Court will hear arguments in Friedrichs v. California Teachers Association, the case that will determine whether governments can force their employees to pay union fees to keep their jobs.

In September, the plaintiffs in that case – Rebecca Friedrichs and other California public school teachers who have been forced to pay union fees – filed their brief arguing that the First Amendment protects their right to choose whether to give money to a union. The court also received 25 amicus curiae (“friend of the court”) briefs from groups and individuals supporting Friedrichs, including an amicus brief from the Liberty Justice Center on behalf of Illinois state workers who don’t want to support a union, and an amicus brief from Gov. Bruce Rauner, which he filed despite Illinois Attorney General Lisa Madigan’s insistence that she’s the only state official allowed to weigh in on the case.

In November, the court received briefs from the defendants – the union that claims a right to the teachers’ money and the California attorney general – as well as 24 amicus briefs from groups and individuals supporting the unions’ position.

One of those briefs stands out as particularly strange and wrong: an amicus brief from a group of current and former Republican state lawmakers (and a former Republican congressman) arguing that principles of federalism allow state governments to unionize public employees – and force them to pay union fees – as they see fit. The group includes six current Illinois state representatives – Adam Brown, R-Champaign; Terri Bryant, R-Mount Vernon; C.D. Davidsmeyer, R-Jacksonville; Norine Hammond, R-Macomb; Dwight Kay, R-Edwardsville; and Bill Mitchell,R-Decatur; – as well as an Illinois state senator, Sam McCann, R-Jacksonville, and two former Illinois state representatives, Raymond Poe, R-Springfield, and Angelo “Skip” Saviano, R-River Grove. The brief was filed on the lawmakers’ behalf by the Constitutional Accountability Center, a left-leaning group based in Washington, D.C.

The lawmakers’ brief argues that federalism – the idea, enshrined in the 10th Amendment, that states should serve as “laboratories for experimentation” – demands that each state be allowed to decide for itself whether to require its employees to pay union fees.

Their argument has a fatal flaw: Although federalism allows states to enact laws that they believe fit their respective states’ particular needs, it does not give them a license to violate federally protected constitutional rights. The states cannot “experiment” just any way they want: The 14th Amendment requires all states to respect certain fundamental rights, and the Supreme Court has long held that this includes the First Amendment rights to freedom of speech and freedom of association.

And that is what the Friedrichs case is about: whether governments should be allowed to infringe on their employees’ rights to free speech and free association by making them support a union against their will.

It shouldn’t be a difficult question. The Supreme Court has long held, correctly, that the right to free speech includes a person’s right not to be forced to pay for speech with which he disagrees, and the right to freedom of association includes a person’s right not to associate with a group he wants no part of.

The lawmakers’ brief argues that the states have more “leeway” to restrict First Amendment rights when imposing rules on their own employees. But people shouldn’t have to surrender their fundamental constitutional rights when they take government jobs – certainly not without a compelling reason, which the government has never provided to justify forcing workers to pay union fees.

Forcing government workers to pay union fees doesn’t just infringe on the workers’ individual rights – which is bad enough – but also is dangerous because it allows government to use its power to influence the marketplace of ideas to the benefit of a group that it favors. The Supreme Court has stated that the First Amendment “creates a forum in which all may seek, without hindrance or aid from the state, to move public opinion or achieve their political goals.” That forum cannot exist when the government forces one group of people to support another group with opposing views. Making workers give money to unions gives the unions an unfair advantage over all other groups in society, which have to fund their policy and political advocacy with voluntary contributions.

We’ve seen how forced unionization has tilted the political playing field in Illinois. Government unions fund political campaigns of their preferred candidates; those officials then unionize more government workers, who pay more fees to the unions. The unions, in turn, make more contributions – and so the cycle continues, all at taxpayers’ expense. No one else has this type of unfair advantage in the political arena, and the First Amendment demands that no one should have it.

The unions claim that the fees workers are forced to pay don’t fund political activity, but that is simply false. In fact, all speech by government-worker unions is political: When they bargain with the state, they address important political issues, such as how much the state will spend on wages, benefits and pensions. Besides, even if it were legitimate to force workers to pay for their so-called “fair share” of collective bargaining costs, workers have no way to ensure that their fees are actually spent on bargaining and not on prohibited political activity. That’s because unions decide for themselves whether to categorize any given spending as “political,” and workers have little ability to find out, let alone challenge, how their money is spent. (The Liberty Justice Center addresses this point in detail in its amicus brief on behalf of Illinois state workers.)

It’s disappointing that Illinois lawmakers would support the government-worker unions’ efforts to keep taxpayer money flowing to their coffers instead of supporting state workers’ efforts to protect their constitutional rights. Those lawmakers might not consider First Amendment rights to be of the highest importance, but recent decisions suggest that the Supreme Court does – and will when it decides the Friedrichs case.

Jacob Huebert is senior attorney at the Liberty Justice Center

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