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The end of June is always an interesting time at the United States Supreme Court. It is usually when the court announces decisions in its most important and controversial cases. This year was no exception, as the end of June saw the release of King v. Burwell, which upheld the Obamacare subsidies, and Obergefell v. Hodges, which announced a constitutional right to same-sex marriage. A case that many are pointing to as one of next June’s blockbusters is Friedrichs v. California Teachers Association, which the Supreme Court will decide next term.
At issue in Friedrichs, which is being litigated by the Center for Individual Rights, is the question of whether the First Amendment protects public sector employees from being forced to pay agency fees to unions. Around 40 years ago in Abood v. Detroit Board of Education, the Supreme Court held that such fees were proper. Over the years, that decision has allowed the unions to corral tens of millions of dollars from employees who do not want to associate with them.
This concept of agency fees is a constitutional anomaly that runs counter to the great weight of First Amendment case law. The Supreme Court permitted it as a means to support states that seek labor peace through mandatory bargaining. The theory was that if all members in the bargaining unit did not pay (even if they did not want to associate with the union or receive its services), unions would be unwilling to be a mandatory collective bargaining agent.
The Supreme Court began to reexamine Abood around the time the Mackinac Center was exposing the imposition of those fees on home-based day care providers and home help workers. In Harris v. Quinn, the court held that unions could not demand agency fees from such workers. In the process, the court criticized Abood, but decided not to overrule it at that time.
The dissenting justices recognized that mandatory agency fees were on shaky legal footing and tried to defend them. In her dissent, Justice Kagan claimed agency fees ensure that where there is mandatory bargaining, government will have a “viable counterpart.” She also said that “basic principles of economics” naturally show that there is “no basis for thinking that absent a fair-share clause, a union can attract sufficient dues to adequately support its functions.”
Banning agency fees for all state and local workers in mandatory bargaining situations as a matter of constitutional law would practically create a right-to-work environment. With Michigan recently becoming right-to-work and with the Mackinac Center Legal Foundation’s efforts related to implementing it despite the Michigan Education Association (and others) chicanery, we were in a unique position to test some of Justice Kagan’s theories.
Our amicus brief asking the Supreme Court to hear Friedrichs and overturn Abood showed that right-to-work will not end unions. To prove this, we looked at the MEA’s experience after right-to-work passed in Michigan and at 14 years of national numbers from an annual federal labor survey. We showed that freedom for individuals who want nothing to do with the union and the state’s interest in mandatory bargaining — however misguided — can coexist.
The case will likely be heard in either December 2015 or January 2016. It is likely that the Mackinac Center will file another amicus brief on the merits.
