A 40-year-old policy requiring nonmembers of government employee unions to pay union agency fees may come to an end, as a lawsuit Gov. Bruce Rauner filed challenging the rule heads to the Supreme Court with the Trump administration's blessing.
In a brief filed Dec. 6 with the U.S. Supreme Court, the White House argues that requiring nonmembers to financially support a union’s negotiation process violates their First Amendment rights.
The brief listed a number of issues with which non-union workers might disagree with a union, including tenure and merit pay, issues that stake a philosophical position about the function of government.
“To compel a public employee to subsidize his union’s bargaining position on these questions is to force him to support private political and ideological viewpoints with which he may strongly disagree,” the brief reads.
Filing the suit was among Rauner’s first actions after taking office, and he has long agreed with the Trump administration’s position that the fee requirement violates free speech, according to a Dec. 7 article in the Chicago Tribune.
Rauner has since been removed as a defendant in the case, the Tribune said.
Although alignment between the White House and Rauner may spell a legal win, the perception of an alliance with a controversial president could threaten the support Rauner needs from GOP moderates as he prepares for re-election in 2018, the Tribune story pointed out.
According to the Trump administration brief, the case stems from a Supreme Court ruling in the 1977 Abood vs. Detroit Board of Education case.
Writing on Sept. 19 in the blog of the American Constitution Society for Law and Public Policy, University of Maryland Law Professor Ann C. Hodges said the Abood ruling originally favored the legality of charging non-members the fees in question, even if there were policy or spending disagreements.
“Though such charges may implicate First Amendment interests, any impairment is outweighed by the government’s interests as an employer,” she wrote.
Despite the case’s longstanding precedent, Hodges noted it had drawn various challenges over the years, including one in 2016, Friedrichs vs. California Teachers Association (CTA), ending in a tie at the Supreme Court when Justice Antonin Scalia died.
At the time of the deadlock, which let stand a lower court ruling leaving Abood in place, The New York Times called it a “major victory” for labor unions, charging efforts to overturn it would “cripple the ability of public-sector unions to collect fees from workers who chose not to join and did not want to pay for the unions’ collective bargaining activities.”
However, an article in Forbes magazine claimed that in the Friedrichs vs. CTA case, the law cost non-union teachers up to $1,000 annually to support positions they may not agree with.
“While many employees agree with their union, many do not,” wrote Terry Pell, president of the Center for Individual Rights, which represented Rebecca Friedrichs in the case. “It is a longstanding principle of the First Amendment that the state may not coerce individuals to 'speak' by forcing them to financially support an organization that promotes ideas and policies with which they disagree."
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