Monday, February 26, 2018
The Supreme Court hears oral argument this morning in one of this term's major First Amendment cases, Janus v. AFSCME. Some of the questions posed about the case and especially the issues raised in this brief by the USCCB have been thoughtfully explored in a series of posts by Ed Whelan (e.g., here) and Michael Sean Winters (e.g., here).
I wrote about Catholic social teaching and public sector unions back in 2016 when the Supreme Court heard oral argument in Friedrichs v. California Teachers Association and am reposting that below. Suffice to say that nothing in the USCCB brief or in the commentary about it causes me to change my views. It's worth emphasizing that Janus is about a narrow if important bit of constitutional doctrine concerning compelled subsidies and speech in the public employment sector. The USCCB brief and commentary supporting it mistakenly, in my view, kick up a host of misleading (because usually failing to note the important distinction between the public and private sectors) and irrelevant (because not engaging the legal questions and the reasoning--or lack thereof--in Abood) issues about right to work laws, civil society, intermediate institutions, Bowling Alone, and so forth. More to come after oral argument.
I was hoping someone would give me a chance to say something about Monday’s oral argument in Friedrichs v. California Teachers Association, and MOJ-friend Michael Sean Winters graciously obliges over at his blog in a post about the latest “assault” on unions. Michael Sean and I have been around before on some issues about Catholic social teaching and unions, so why stop now?
One can, as I do, subscribe to the Catholic Church’s teaching from Rerum Novarum on about the role of unions in civil society, appreciate much in the insightful paper by Lew Daly to which Michael Sean cites, and yet think all of that has nothing to do with the issues in Friedrichs.
For starters, I think Michael Sean is a little cavalier in writing that Friedrichs is “not really about the First Amendment at all.” That’s a conclusion, not an argument. And on the law of the First Amendment, Friedrichs poses some hard questions (unless, I suppose, one is prepared broadly to countenance compelled subsidization of speech). I am not sure the point of Michael Sean’s initial hypotheticals about violations of trade secrets and trademarks, but the issue in Friedrichs strikes me as quite different. No one doubts that violations of trade secrets and trademarks can be sanctioned. But can the state require as a condition of public sector employment that a non-union member pay an agency fee? That’s a difficult question, and the answer the Court gave almost 40 years ago in Abood v. Detroit Board of Education is badly reasoned (as just one example, by assuming the constitutionality of compulsory payments based on two private sector union cases, Railway Employees’ Department v. Hanson and Machnists v. Street, that dealt with the First Amendment issue in a sentence and not at all, respectively). A cite to Rerum Novarum doesn’t resolve the free speech question.
And then there’s the basic distinction between private and public sector unions. The permissibility of agency dues in the private sector isn’t at issue in Friedrichs (conceded at the outset of oral argument by Michael Carvin), so it’s a little hard to see how this is an all-out “assault” against unions. Nor does Friedrichs question the permissibility of agency shop arrangements in either the public or private sector, only whether non-union members must subsidize a public employee union’s political activity—so the arguments in Michael Sean’s penultimate paragraph about union formation seem to me beside the point. The line between collective bargaining and political activity for public sector unions is impossible to draw, and that’s the core of the plaintiffs legal argument against the compulsory agency fee. As Justice Kennedy put it at oral argument:
The union basically is making these teachers compelled riders for issues on which they strongly disagree. Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that but that the union is absolutely wrong in some of its positions. And agency fees require, as I understand it—correct me if I'm wrong—agency fees require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points.
Finally, could I make a plea here for scholars working on Catholic social thought to spend a little time confronting the classic argument by Ralph Winter and Harry Wellington about public sector collective bargaining before waxing rhapsodic about Rerum Novarum and the unalloyed blessings that unions provide? As Rick Hills put it a while ago, the inelasticity of demand for their services and manipulation of the political process to their advantage means that public employee unions are differently situated than, say, trade unions. There are all sorts of bad policies created when public union-controlled services (prisons and public schools in some areas, for example) are consumed largely by lower income people, which is, at least arguably, part of the reason why we have so many prisons and such bad public schools (as Rick points out, the prison guard union in California was a powerful lobby for "three strikes, you're out" life sentencing). I hope the plaintiffs prevail in Friedrichs because that’s the right legal outcome, but I also think it would be a small step to correcting some of our injustices and policy distortions.