Last year, the United States Supreme Court heard a landmark First Amendment case that was poised to end decades of an unfair practice by government unions. The oral arguments in that case, Friedrichs v. California Teachers Association, went so heavily in favor of the plaintiff, that even the New York Times acknowledged Rebecca Friedrichs was likely to prevail.
If the southern California elementary school teacher had won, the Supreme Court could have essentially extended right-to-work protections for all public employees nationwide by declaring that all government union collective bargaining is inherently political and therefore all dues must be optional under the First Amendment’s protection against compelled political speech.
Sadly, Justice Antonin Scalia passed away shortly thereafter, leaving the case a 4-4 deadlock, sending the decision back down to the lower court where the teachers union had prevailed.
But there is a new case on the horizon that could return to the Supreme Court and expand worker freedom to public employees in the remaining 22 states that have not yet passed right-to-work laws.
Yohn v. CTA has an identical premise to the Friedrichs case: because unions in the public sector are bargaining with the government, that bargaining is inherently political. While it does not involve spending directly for or against candidates or parties, government union collective bargaining deals with contentious political issues like taxpayer-funded benefits, hiring and firing policy, and more.
Even in non-right-to-work states like California, the First Amendment protects workers’ rights to opt out of union political spending. But they are still required to pay so-called “agency fees” for collective bargaining, which can amount to hundreds of dollars each year.
However, because of the political nature of government union collective bargaining, some employees may object to things the union is asking for. For example, many union contracts award pay raises based on longevity rather than achievement. But if a worker believes in merit pay, she is being forced to fund collective bargaining with which she disagrees. Same goes for if a worker realizes that gold-plated public pension plans are driving states into debt and could lead to tax increases, and therefore opposes the union negotiating for them. That contract negotiation affects taxpayers, is inherently political, and yet the worker being forced to pay dues is being forced to fund one side.
The examples are endless, and reasonable people can disagree on these core issues. But a uniting principle remains that no one should be forced to fund advocacy with which they disagree.
If the case reaches the Supreme Court, it will likely be decided by new justice Neil Gorsuch, who was nominated by President Trump and confirmed by the US Senate earlier this year. Tens of thousands of activists of Americans for Prosperity, Concerned Veterans for America, and other organizations supported his confirmation because of his record on exactly this kind of case – which demonstrated a history of commitment to the rule of law and defending individual liberty.
The Court has already upheld unions’ right to represent paying members only. Now it is time for them to reaffirm the First Amendment by ensuring that paying members are only those who wish to do so.
Government’s first and most important responsibility is to protect our individual liberty, and no such freedom is more important than those guaranteed in the First Amendment. A victory for Yohn against the teachers’ union would represent an important victory for the freedom of speech of all Americans.