Saturday, December 22, 2012
Catherine Fisk and Erwin Chemerinsky have posted on SSRN a draft of their article, forthcoming in the Cornell Law Review. The article compares the Court’s treatment of union objectors to its treatment of dissidents within other types of associations, uncovering a long list of inconsistencies. (I have previously written about the tension between the Court’s approach to shareholder objectors in Citizens United and its approach to union objectors in cases like Davenport and Ysursa, but Fisk and Chemerinsky cast a broader net, using last Term’s Knox decision as a starting point.) For example, they raise questions about why the Court excludes public employee speech from First Amendment protection altogether in Garcetti, but provides “emphatic protection” to those same employees when they object to paying union dues. Likewise, they note discrepancies in the Court’s compelled speech cases, in which the Court favors objectors in the union context, yet rejects similar objectors’ arguments in cases like University of Wisconsin v Southworth.
The article also discusses some of the possible consequences of Knox’s dicta about the First Amendment rights of union objectors. That dicta signals not only a possible transition from an opt out default (in which public sector bargaining unit members pay the portion of union dues that go to union political speech unless they opt out) to an opt in default, but also a greater skepticism about whether requiring public sector employees to pay for collective bargaining is permissible under the First Amendment. Finally, it proposes a path to reconciling the conflicting cases, favoring an approach that allows associations—including corporations and unions—to spend money on political speech over members’ objections.
The article and the underlying cases it discusses raise a number of interesting questions about the Court’s views about the value and purpose of various types of associations, including unions. It also surfaces some of the Court’s assumptions in these cases, particularly about voluntariness – for example, the Article challenges the Court’s assumption that it is more difficult for employees in unionized workplaces to engage in self-help if they want to avoid paying for union political speech (for example, by going to work at a non-union workplace) than it is for shareholders or even members of other types of groups to avoid funding unwanted political speech.
Finally, I note that this article is especially interesting against the backdrop of the DC Circuit’s decision in Ampersand Publishing v. NLRB. Ampersand’s view of the intersection of employer First Amendment rights and employee Section 7 rights suggests that employees may also lose Section 7 protection when they engage in collective action that involves protest against an employer’s political spending. Thus, not only does Knox provide additional limits on unions’ sources of funding for their own political speech (at least in the public sector), but employees have now potentially lost another avenue through which they might seek to counter corporate political speech.