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.