Wednesday, January 13, 2016

Why Does Passage Through Government Coffers Launder Money?

by Michael Dorf

In my new Verdict column, I argue that the Supreme Court should grant cert in Cressman v. Thompson, a case in which an Oklahoma man raises a free-speech objection to the standard-issue state license plates. Those plates include an image that he (reasonably) regards as pantheistic, a view he wishes not to express. He cites Wooley v. Maynard for the proposition that he has a constitutional right to tape over the image to vindicate his right against compelled speech. The U.S. Court of Appeals for the 10th Circuit rejected his claim on grounds that I find unpersuasive. Nonetheless, as I explain in the column, there is a risk that a sloppily (or maliciously) written opinion vindicating Cressman's right could jeopardize anti-discrimination law. Accordingly, I urge a view of the right against compelled speech that is broader than the one adopted by the 10th Circuit but nonetheless reasonably cabined.

Here I want to discuss the compelled-speech case already pending before the Supreme Court. On Monday, the Court heard oral argument in Friedrichs v. California Teachers Association. The case presents the question whether to overturn that portion of Abood v. Detroit Bd. of Educ. that permits a state to adopt an "agency shop" (or "closed shop") regime in which public employee unions authorized to act as the sole bargaining agent for members of a collective bargaining unit may charge non-union members their pro-rata share of the costs associated with bargaining.

Abood was a compromise. The Court held that charging non-union members for the union's "ideological" activities that are not related to collective bargaining violates the non-union members' right against compelled speech, but the Justices permitted charging non-union members for bargaining activities, even though public employee unions often bargain over matters that are both a matter of ideological contestation and related to employment--such as the provision (or not) of employee health insurance that covers abortion, the role (if any) of the use of student scores on standardized tests in retention and promotion decisions (in cases, like Friedrichs and Abood, which involve teachers' unions), and many other issues.

Charges for bargaining-related costs, notwithstanding their potential ideological content, have been justified on the ground that they are needed to address the problem of free riders: Non-union members of the bargaining unit benefit from the union's bargaining-related activities, and so it is only fair to charge them; indeed, without the obligation to pay their pro-rata share, many employees with or without ideological objections would free ride on the union's bargaining, which in turn would diminish the union's resources, and thus its bargaining strength. That, in turn, would harm all employees. Accordingly, an agency shop limited by the Abood compromise is best understood as a means by which the government helps labor solve a collective action problem.

During the argument in Friedrichs, the four liberalish Justices offered stare decisis as a ground for retaining the Abood compromise. But the five conservative Justices appeared unmoved. They seem ready to make good on hints they dropped in 2012 in Knox v. SEIU and again in 2014 in Harris v. Quinn, and rule that the free-rider justification does not suffice to override the non-union members' right against compelled speech.

Much of the disagreement among the justices concerned which side should bear the burden of persuasion. According to the conservatives: compelled speech is a serious infringement on the rights of the non-union members; the burden of proof rests with the state as the infringer of those rights; and the state has not shown that the free-rider problem is sufficiently serious to warrant agency shop rules. According to the liberals: Abood has been on the books for four decades; numerous collective bargaining agreements have been struck in reliance on Abood; and thus the challengers to its doctrine bear the burden of persuading the Court that there is some special reason to overrule it.

The contest over whether public employee unions could adequately perform their collective-bargaining function at one point veered into a hypothetical-but-revealing direction. Justice Sotomayor asked Michael Carvin, the attorney for the plaintiff, whether the state could simply fund the union from tax revenues collected from public employees to ensure that the union had adequate resources to engage in collective bargaining. After some back and forth to clarify what was being asked, Carvin, with support from Justice Alito, resisted the question by noting--correctly--that unions don't want government funding because that would potentially co-opt them and subject them to onerous restrictions.

Fair enough, but that objection really misses the point of Justice Sotomayor's question, which is quite fundamental. The question is this: Why does the Constitution permit the government to tax some group of people and use the proceeds to fund speech with which they disagree, but forbid the government from requiring that those same people give over some of their money to other people who then say things with which some of the first group of people disagree? Even if unions in general don't want to be funded via taxation, the Constitution apparently would permit it. Why the constitutional difference based on the formality of whether the money is temporarily parked in a government bank account?

One answer might be that government speech is categorically different from private speech. But that doesn't get us very far. As I noted in a blog post after the Knox case, government speech is often accomplished via private parties. Suppose the government hires a private advertising firm to design and run a campaign urging minors not to smoke, but leaves the content of the campaign almost entirely up to the advertising firm. There the money is going from taxpayers to a private firm to express messages with which some of the taxpayers disagree (or simply don't want to fund); yet the taxpayers have no free speech right to resist the government speech.

Perhaps there's some mileage to be gained out of the hoary maxim that government may not take property from A and give it to B? But to the extent that this maxim is a constitutional principle, it's the very permissive "public use" requirement of the Takings Clause, and even then, it does not block redistributive taxing and spending, and is not ultimately about speech at all.

Another possibility, I suppose, is that where true government speech is involved, the government controls the speech, but not where it deputizes a union to speak on behalf of the bargaining unit members. Yet the degree of control needed for the government speech doctrine to kick in is minimal, as illustrated by last Term's decision in Walker v. Texas Div., Sons of Confederate Veterans. Government has wide latitude to speak through private parties, and the speech remains government speech even when it exercises minimal control over what those private parties say. So we are left with a puzzle as to why so much should turn on whether: 1) the government by law requires A to give the money to B to speak (which raises constitutional problems of compelled speech) or 2) the government collects the money from A and then hands it over to B to speak (which is permissible government speech or spending).

Finally, in raising this question, I do not mean to pick on the conservatives. I don't think Justice Sotomayor realized it, but the upshot of her suggestion that there is no constitutional difference between the govt taxing A to fund speech by B and the govt making A pay B directly to fund B's speech appears to be that Abood is wrong on the other half of its compromise, i.e., it's too restrictive of agency shops. After all, government speech routinely takes controversial positions on ideologically charged issues that have nothing to do with collective bargaining. If that's allowed, and if there's no difference between money that passes through government coffers and money that doesn't, then there should be no constitutional problem with a legal obligation directly to fund speech with which one disagrees even if it is unrelated to collective bargaining.

And maybe there shouldn't be, but if that's the reason to resist overruling Abood, then the case from the liberal side isn't about stare decisis because the principle that going through government coffers doesn't make a difference would requiring the overturning of the part of Abood that held that public employee unions can't charge non-union members of the bargaining unit for their non-bargaining-related activities.


David Ricardo said...

I am at a lost to understand how any discussion in this area can omit the issues and decisions in the Docs vs Glocks case in Florida. In that case for those unfamiliar with it the 11th Circuit has ruled several times in favor of the state of Florida being able to regulate and proscribe what doctors can and cannot say with respect to firearms and their patients. The rationale for the rulings is that the state has the authority to regulate speech with respect to its authority to regulate professional conduct.

The argument of the state is absurd to a degree not even close to the issues in the situation with union dues for public employee unions. And yet the great conservative defenders of free speech are nowhere to be found. Why?

The answer is straight forward. Conservatives are not interested in free speech. They are interested in using government power to restrict the activity of parties they hate (unions as number 1) and to support activities of those who support their issues (guns for all). It is nice that people like Mr. Dorf examine the issue here in an objective manner with respect to the Constitution and its guarantees of liberty, but it misses the reality of the truly totalitarian nature of modern conservatism. Freedom of speech is not the issue here for Justices like Alito, the issue is how can the Court be used destroy public employee unions.

Joe said...

The liberals don't really want to rely on stare decisis, I think, though Breyer at least (and others probably) has consistently applied this honestly. Breyer, e.g., used it to strike down a very low threshold in a campaign finance case. They think the rule in place is valid on the merits. If the precedent is a compromise, at any rate, that means it is not totally consistent. That is the nature of compromises.

One thing that comes to mind in regard to the public union case (the link below touches upon this) is that the Supreme Court repeatedly has treated public speech as more open to limitation, including the rights of government employees to speak on certain matters at all without being fired or otherwise penalized. Unions are a means for governments to handle employee disputes and like rules that disallow unions to discriminate by race even if that is arguably a violation of freedom of association, the public nature of the unions here can be regulated more than other parties.

If that is okay, why the fee here is not (to avoid free-riders etc., something Scalia and Kennedy in fact agreed to in the past as shown by the second link) allowed is unclear to me. There seems to be a simplistic line being drawn here, one that as the first comment notes in a fashion is suspiciously inconsistent.

Joe said...

ETA: Another example I just read is that Scalia (and Kennedy) dissented when the Supreme Court held various government jobs could not turn on what party you belonged to, such as firing a government contractor for being a Democrat.

Michael Gould said...

I still don't understand how this situation involves compelled speech. The union provides a service to the bargaining unit member who is not a union member. The union charges for that service. Here in Maryland, I have to pay a county ambulance tax to support my local volunteer fire department, of which I am not a member. Is that compelled speech?

Michael Barnes said...

An agency shop and a closed shop are not the same thing. As traditionally defined, a closed shop requires the employee to be a member of the union before hiring and to maintain membership during employment. The closed shop was basically outlawed by the 1946 Taft-Hartley Act, which was vetoed by Pres. Truman, but overridden by the Republican majority that came to power in the 1946 mid-term elections.

That being said, Robert Taft, "Mr. Republican," was fair-minded enough to understand and accept the free-rider problem, and so the agency shop, where non-union members pay an agency fee, was allowed under Taft-Hartley.

Is it such a stretch of imagination to consider that if public-sector agency fees are compelled speech, then private-section agency are, too? Certainly the actions of large corporations have public effects. I doubt if Justice Alito would hesitate to make such a leap.

Ah, for Republicans like Taft, who is probably rolling over in his grave.

Omer said...

I'm not sure /i follow the logic of the objection to Cressman v. Thompson. Couldn't the government force a person to have the American Flag on their licsense plate? If they could, wouldn't that infringe on a person's free speech rights? If not, what about the Flag or the coat of arms on one's passport? What about forcing a child to go to a school with the flag on it, or US employees to work in a building with the Flag on it?

Joe said...

Flag, I'd say no. Passport is trickier -- license plate more a "personal billboard" that is open to the world on a daily basis. And, flag tied to nation, a core aspect of the passport's "message." Much less important on a car's license plate. The school or building is not as personal, tied to the person. See, Wooley v. Maynard.

King Kane said...

What is next? An anti-environmental group refusing to pay for garbage collection because they feel like they are subsidizing environmentalist agenda they disagree with?

I wonder if the conservatives on the court are trivializing the 1st Amendment without realizing it. I certainly tend to think so.

Shag from Brookline said...

Might absolute liberty lead to anarchy?

t jones said...

How does this tie in to Hobby Lobby, et al., where the employer objects to paying for insurance which might be used to fund abortion, but (apparently) not to paying wages which might be used to pay for abortion?

Greg said...

With regard to the Verdict column, it seems to me that any decision that goes so far as to implicate discrimination law would be GROSSLY over-decided, and almost unambiguously maliciously so. Conduct restrictions will always implicate speech and all speech will in some way be conduct, but the appeals court just incorrectly identified the action of covering a license plate on the conduct/speech line. As far as Judge McHugh's concurrence goes, he is clearly wrong, for the reasons that you outline.

With regard to the current topic goes, Abood was a reasonably decided compromise, and deserves the respect of stare decisis absent a new, strongly compelling argument against it. Other than a modern distaste for unions, I see no new argument.

As far as the larger concept of compelled payments vs. taxes goes, I think the public rightly distinguishes between compelled payments to the government (taxes) that the government can spend as it wishes, versus compelled payments to other citizens. It is even worse when those payments are for the express purpose of funding speech with which the individual disagrees. This has to do with the larger idea that laws that compel action are generally worse than those that restrict action. Taxes are a special case of compelled action that we (grudgingly, for some) accept. Laws that compel action such as making certain purchases or requiring payment of union dues are inherently more suspect than laws that restrict action such as selling certain products or services. While lots of laws that compel action are legitimate, they are less common and often are really for the purpose of restricting all actions except for the ones that the state deems safe or appropriate.

Example: The government can't make you go into business, but they can restrict you from conducting business in a discriminatory way, including by compelling you to act in a non-discriminatory way.

How all this applies to Friedrichs is that the government is compelling conduct, but in this case is doing so in the context of an employer-employee relationship. Since having an agency shop is clearly a case of the government acting as employer, it's reasonable to give its actions a higher level of deference than we would normally allow it. The Abood compromise was that in the contexts when the union is primarily acting within the employer-employee relationship, the government can act as an employer and compel actions on its employees. However, when the union speaks in a way that is not directly related to the employer-employee relationship, the government's requirement compelling employees to contribute to that speech extends beyond the employer-employee relationship and is thus an objectionable form of compelled conduct with a strong speech component.

Like most compromises, Abood treads a fine line and doesn't provide any strong guidance that would apply in other contexts. This is the way much of the "government as employer" case law looks. Trying to strictly apply a single principle will never result in these kinds of compromise decisions because it is only through the application of competing principles that such compromises are reached. I fear that the more conservative justices are too blinded by their hatred of unions to realize that there are more principles implicated here than simply speech.

King Kane said...

It seems to me the action you take in both the instances is the same - you give money. What differs is who you give the money to, or how the money changes hands, but in each instance the action you take is the same unless one believes the government "erases" an individual's action so that the individual is sent back to the original state where s/he had not given money to the government to begin with. But that cannot be right since you are out of some amount of money after giving your money. Either to the government or to the 3rd party, the money is gone and you are out of the amount you gave.

Thus I do not think the action/inaction distinction is genuine in this context. Nonetheless, I sense something instructive in that distinction for the following reason.

One way to answer Mr. Dorf's question is that individuals understand the government (i.e. State) to be something bigger than herself/himself, a community s/he belongs. The shared contemporary experience as well as the history under the same government provides individuals with a sense of belonging, a kind of comfort one feels when s/he can be herself without isolation, as s/he often does with her/his family and friends. In this view, allowing/compelling the government acting on your behalf works as a sharing the responsibility and honor of your own with the larger community - spreading the misery if you will.

This works because when you have the government act on your behalf; you kind of know that your fellow citizens have your back. They must, since you are essentially enlisting your fellow citizens as accomplices/comrades. You may not wash off every guilt, you may not return the favor always proportionally. (Giving money to the government in this context works as your return to its favor as well) But at least you know you are not alone, which gives you a sense of security and legitimacy.

The foregoing might be one answer to the question why the government "launders money" when it acts as a conduit among its citizens. And the relevant distinction here might rather be "acting together" against "acting alone," than "action" against "inaction."

P.S. This is merely one way to answer the original question, not that I endorse it.

Greg said...

My point was that taxes are a special case of government compelling action that we have already accepted, despite them being (as you correctly identify) part of the larger class of compelled action that is inherently suspect.

I also think the government as representative of the people argument that Kane is making is instructive. Paying taxes to the government is like paying dues to an organization that you are already a member of and that will be taking actions on your behalf, since the government is supposed to represent the people. Being compelled to make payments to an organization you are not a member of (in this case the union) is inherently a lot more questionable. Freedom of association is certainly implicated without even getting into compelled speech issues.

Again, I like Abood, and think it's the right compromise. When the union is acting as "all employees" then it makes sense that all employees are inherently a member of that group, due to their desire to be employed in that organization. When the union is acting as "all union members" then it makes sense that not all employees want to be a member of that group. I'm just saying that there are good reasons to draw distinctions between being forced to pay taxes to a government that is inherently supposed to represent you and being forced to pay a third party that may not represent you at all.