Because he wants to practice law in his home state, Arnold Fleck, like attorneys in at least 29 other states and their own bar associations, must be a member of SBAND to which he must pay dues. So imagine Fleck’s annoyance when in 2014 SBAND spent $50,000 — necessarily including a portion of his dues; money is fungible — advocating against passage of a ballot measure (concerning child custody) he had supported with a $1,000 contribution. SBAND’s executive director devoted some of his paid time to opposing the measure, and opponents were allowed to use SBAND’s email system. That year, however, the U.S. Supreme Court said something pertinent.
In 1977, the court held that public employees who choose not to be members of unions were nevertheless required to pay “fair share” or “agency” fees to the labor unions to which government had given exclusive power to represent the employees. The fees could be significantly more than half of — sometimes 100 percent of — the dues paid by willing members of the unions.
In the 1977 decision, however, the court sowed the seed of this decision’s undoing. It said: “There can be no quarrel with the truism that because public employee unions attempt to influence governmental policymaking, their activities . . . may be properly termed political.” Justice Lewis Powell, concurring, said, “The ultimate objective of a union in the public sector, like that of a political party, is to influence public decisionmaking.”
No justice was indelicate enough to express another truism: Public employees unions are conduits of cash for the Democratic Party, becoming more important while private-sector union membership, as a percentage of the private-sector workforce, plummeted from the peak of about 35 percent in 1953 to 6.2 percent today.
The 1977 decision making compulsory political contributions constitutional rested on the patent fiction that the fees would finance only the costs of collective bargaining, from which the unions’ fee-paying nonmembers benefited. In 2012, however, the court acknowledged the indisputable: Compulsory fees are “compelled speech and association.” In 2014, the year of Fleck’s annoyance, the court said it is a “bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”
In the 2018 Janus case, the court held that “fair share” or “agency” fees are unconstitutional compelled speech. And — herewith a second court conclusion that Fleck is wielding against SBAND — such fees cannot be automatically deducted from union nonmembers’ paychecks, on the presumption that the payees do not object to the political advocacy conducted in their name and with their money. So, unions must persuade nonmembers to affirmatively consent to the fees.
If the court grants certiorari in Fleck’s case, it will decide whether, as a condition of employment, attorneys can be compelled to join a politically active trade association, and whether that association can presume members’ acquiescence in the association’s spending on political activities that are not germane to the association’s core function, which is to be neutral guardians of the legal profession’s proprieties.
Janus forbids public-sector unions, which like state bar associations elsewhere are associations given power by government action, from either presuming consent or placing on those who do not consent the burden of proactively demanding refunds of their money spent by the associations on political advocacy. Furthermore, the court acknowledged 30 years ago that mandatory bar associations are analogous to unions regarding First Amendment (speech and association) concerns.
Florence Nightingale said that a hospital’s first duty is to not harm the sick. With Fleck’s case, the Supreme Court can affirm an analogous axiom: Whatever else bar associations might do, they should not unconstitutionally abridge freedom of speech by disregarding another freedom that is entailed by it — freedom from compulsory speech. Furthermore, the court should find that freedom of speech does not neglect a corollary freedom — freedom from compulsory association with a politically engaged organization.
The Janus decision has given the court additional work to do. No good deed goes unpunished.