Reconciling Agency Fee Doctrine, the First Amendment, and the Modern Public Sector Union

112 NW. U. L. Rev., 2018 Forthcoming

Univ. of Wisconsin Legal Studies Research Paper No. 1423

64 Pages Posted: 5 Sep 2017 Last revised: 14 Sep 2017

See all articles by Courtlyn Roser-Jones

Courtlyn Roser-Jones

University of Wisconsin Law School; Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: August 1, 2017

Abstract

Few institutions have done more to improve working conditions for the middle class than labor unions. Their efforts, of course, cost money. To fund union activities, thousands of collective bargaining agreements across the nation have long included provisions permitting employers to require employees to pay "fair share," or "agency" fees. In public unions "when the employer is the government" this arrangement creates tension between two important values: the First Amendment's protection against compelled expression, and the collective benefits of worker representation. When confronted with this tension nearly forty years ago in Abood v. Detroit Board of Education, the Supreme Court struck an uneasy compromise, allowing public sector unions to recoup expenses for collective bargaining, but not for political activity. For decades, the decision has been a lightning rod, with some scholars calling for its reversal and others insisting on its preservation. In the meantime, the realities of modern public sector collective bargaining have changed, and First Amendment jurisprudence has evolved. The Supreme Court has recently signaled an interest in revisiting the issue, and test cases are making their way through the circuit courts. The time has come to reconsider Abood's fragile compromise. This Article offers a new way forward within the First Amendment, one that honors the importance of both union activity and free expression. It proposes a way to reconcile these twin interests while also updating the doctrine to account for state legislative efforts, modern union realities, and First Amendment jurisprudential developments. Specifically, the Article argues that agency fees should be brought into step with current political contribution and campaign finance jurisprudence. Under this approach, some agency fees "but only those that are "closely drawn" to avoid unnecessary expressive infringement" will remain lawful. This approach, a middle ground, may not satisfy those who ardently oppose agency fees of any kind, or those who want Abood's rule fully upheld. Still, it emerges as the best way forward through a difficult terrain: It avoids the false dichotomy between union and political activities, respects state legislatures that craft innovative collective bargaining statutes, and grounds public sector agency fees with other coherent aspects of First Amendment jurisprudence.

Keywords: Public Sector Unions, Labor Agency Fees, Agency Shop Agreements, First Amendment, Labor Law

JEL Classification: K31

Suggested Citation

Roser-Jones, Courtlyn, Reconciling Agency Fee Doctrine, the First Amendment, and the Modern Public Sector Union (August 1, 2017). 112 NW. U. L. Rev., 2018 Forthcoming, Univ. of Wisconsin Legal Studies Research Paper No. 1423, Available at SSRN: https://ssrn.com/abstract=3029560 or http://dx.doi.org/10.2139/ssrn.3029560

Courtlyn Roser-Jones (Contact Author)

University of Wisconsin Law School ( email )

Madison, WI
United States

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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