Free speech and free riders

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

“Or the right of public employees to free-ride on other public employees.”

Who knew that second paragraph is what the Founding Fathers were thinking when they drafted the First Amendment to the Constitution? Apparently a majority of the Supreme Court knows.

According to news coverage of Monday’s oral arguments, the five conservative members of the court are likely to rule in favor of the plaintiffs in Friedrichs v. California Teachers Association, a lawsuit that claims charging “fair-share” fees for union representation violates the First Amendment.

California teacher Rebecca Friedrichs and her fellow plaintiffs argue that the fees amount to forced support for a political organization – the California Teachers Association – whose policies and positions they don’t support. But public-sector unions can’t use fair-share fees for lobbying and politics. The fees can pay only the costs that unions incur for bargaining contracts and representing employees.

Those were the conditions set by Abood v. Detroit Board of Education, which the Supreme Court approved unanimously in 1977 – and which the current court seems poised to overturn.

As blogger Mark Weber points out, public-sector unions like the California Teachers Association are required to provide those services equally for all employees in the bargaining unit, including Friedrichs and others who choose for whatever reason not to join the union and pay full dues.

“The Friedrichs Freeloaders think they should be able to benefit from collective bargaining actions taken on their behalf by teachers unions,” Weber writes. “But they also think asking them to pay their fair share of the bargaining costs is somehow an encroachment on their free speech.”

One thing that seemed to get lost in the Supreme Court discussion is that unions are not external entities that parachute in and tell people what to do. They are organizations made up of members; in the case of the California Teachers Association, made up of teachers. Members elect representatives at the local, state and national level who set policies and priorities.

If Friedrichs and her co-plaintiffs don’t like those priorities, they can join the union, advocate for their positions and cast their votes. It’s called democracy.

Also, unions don’t impose contracts unilaterally on anyone. They typically bargain with representatives of elected school boards. Contracts have to be approved by both sides, including by boards that are responsive to the voters. Democracy, again. And of course, there’s another level of public accountability: States can pass laws that restrict public-sector bargaining, as Indiana has done.

The Indiana legislature also outlawed fair-share fees for teachers in 1995. I don’t recall that Republicans who pushed the ban talked about the First Amendment. It was well understood at the Statehouse that banning the fees was a way to reduce the financial clout for the Indiana State Teachers Association, which was a chief political supporter of Democrats. If teachers couldn’t be required to pay fair-share fees, they would be less likely to join the union. Fewer members would mean less money from dues. Less money from dues would mean less union influence at the Statehouse and in elections.

Was it effective? The ISTA is still a force in state politics, but it hasn’t been able to block the legislature from passing law after law that most teachers oppose. And according to the National Education Association, teacher salaries have been falling further in Indiana than nearly anywhere else in the country.


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