Wednesday

August 16th, 2017

Insight

Will the Supreme Court undo the damage done to the rights of millions of government workers?

George Will

By George Will

Published Jan. 11, 2016

When the Supreme Court contemplates changing its mind, it must weigh the institutional interest in the law's continuity against evidence that a prior decision has done an injury, even a constitutional injury. The court took 58 years to begin undoing, with the 1954 school desegregation decision, its 1896 decision affirming the constitutionality of "separate but equal" public facilities and services. On Monday, oral arguments at the court will indicate whether it is ready to undo 39 years of damage to the First Amendment rights of millions of government employees.

In a 1977 decision that bolstered public-sector unionism, the court affirmed the constitutionality of a Michigan law requiring public school teachers who are not dues-paying union members to pay "agency" or "fair-share" fees. These supposedly fund the unions' costs in collective bargaining for contracts that cover members and nonmembers alike. Today, public employees in 23 states are covered by such laws. Only 6.6 percent of private-sector employees are unionized, compared with 35.7 percent of government workers.

In Monday's case, 10 California teachers are challenging that state's law, under which nonmembers' fees can be as high as 100 percent of members' dues. The National Education Association, of which the California union is an affiliate, gets a portion of nonmembers' fees. The NEA began endorsing presidential candidates in 1976 (it favored Jimmy Carter, who promised to create the Education Department) and always endorses Democrats for president. Government workers' unions provided much of organized labor's estimated $1.7 billion in political spending in the 2012 cycle. In the 2014 off-year elections, the NEA was the third-largest political spender, almost entirely for Democratic candidates, groups or causes. In 36 states, from 2000 through 2009, teachers unions spent more on state elections than the combined spending of all business associations.

Interestingly, the 10 California teachers do not stress that they are conscripted into funding such direct, overt and explicit political activity. Rather, they make the more lethal (to public-sector unions' power) argument that even the use of their fees to fund core union activities such as collective bargaining constitutes a "multihundred-million-dollar regime of compelled" — hence unconstitutional — "political speech."

Unions, the dissident teachers say, bargain about issues that "go to the heart of education policy" — teacher evaluation and tenure, class size, seniority preferences, etc. — as well as quintessentially political matters such as government's proper size, its fiscal policies and the allocation of scarce public resources.

Private-sector collective bargaining does not influence governmental policymaking. So, long before public-sector collective bargaining began in the 1950s, President Franklin D. Roosevelt was right to say: "The process of collective bargaining, as usually understood, cannot be transplanted into the public service."

Writing for a court majority in two previous opinions, Justice Samuel Alito foreshadowed Monday's drama by calling the 1977 decision discordant with First Amendment precedents, including the unconstitutionality of compelled ideological advocacy.

The government's interests in "labor peace" and efficient administration may be served by negotiating with a single union. But neither these convenience interests nor the "free rider" problem (nonmembers benefiting from union bargaining without paying for it) justifies abridging fundamental First Amendment rights by coercing ideological speech on matters of political contention. Or compelling unwanted association: The court has held that "freedom of association therefore plainly presupposes a freedom not to associate." Hence, the teachers' petition states that government "cannot mandate political speech or association as a condition of public employment." Indeed, speaking of precedents, in 2014 the court said: "Almost 50 years ago, this court declared that citizens do not surrender their First Amendment rights by accepting public employment."

The court's interest in stare decisis (Latin, meaning "to stand by a decision") does not dictate dogmatic adherence to all precedents. The teachers note that "the court has never invoked stare decisis to sustain a decision that wrongly eliminated a fundamental right." And the court has said (in the 2010 Citizens United decision) that it has "not hesitated to overrule decisions offensive to the First Amendment."

Never in its 225 years has the First Amendment been under so many varied and sustained attacks. In academia, it is increasingly considered a dispensable impediment to superior claims of social justice. In the U.S. Senate, 54 Democrats voted to amend it in order to empower the political class to regulate campaign speech about the political class. So, on Monday it would be exhilarating to hear evidence that the court is prepared to correct its contribution to the practice of subordinating First Amendment protections to supposedly superior considerations.

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