Sunday, March 2, 2014
Catherine Fisk and Erwin Chemerinsky (both of Cal Irvine) published an American Constitution Society Issue Brief last week that boldly sets out the implications of Harris v. Quinn, on public employee fair-share fees, and blows a hole (or three) in the Court's First Amendment jurisprudence as it continues its attacks on unions. We posted on Harris here and here; we posted on Knox most recently here.
The Brief, titled Unequal Treatment? The Speech and Association Rights of Employees: Implications of Knox and Harris, pulls no punches in setting out the implications of those cases, starting with the doctrinal time-bombs that Justice Alito planted in Knox, which fed the petitioners' arguments in Harris:
In colloquial terms, the petitioners in Harris seek to have the Supreme Court declare that, as a matter of the First Amendment, all government employment must be on a "right-to-work" basis.
The petitioners' argument in Harris went beyond simply the payment of the employees' fair share of the cost of contract negotiation and administration. They argued that bargaining on behalf of employees is petitioning the government and "political in nature" even when it addresses wages, and it violates the First Amendment to require dissenting employees to support the union's bargaining. As the Justices recognized at oral argument, the logical extension of the petitioners' argument is that the First Amendment invalidates any statute allowing employees to bargain collectively on the basis of exclusive representation.
Fisk and Chemerinsky also carefully describe how the Court's approach in Knox, and the petitioners' arguments in Harris, cut against the Court's approaches to compelled speech, associational rights, and speech of government employees in other areas.
The conclusion: The implications are serious, and Court's approach to fair share union fees is just the opposite of its approach in other cases, suggesting that the Court is just baldly beating up on unions.