When the Supreme Court contemplates changing its mind, it must weigh the institutional interest in the law’s continuity against evidence that a prior decision has done an injury, even a constitutional injury. The court took 58 years to begin, with the 1954 school desegregation decision, undoing its 1896 decision affirming the constitutionality of “separate but equal” public facilities and services. On Monday, oral arguments at the court will indicate whether it is ready to undo 39 years of damage to the First Amendment rights of millions of government employees.
In a 1977 decision that bolstered public-sector unionism, the court affirmed the constitutionality of a Michigan law requiring public school teachers who are not dues-paying union members to pay “agency” or “fair-share” fees. These supposedly fund the unions’ costs in collective bargaining for contracts that cover members and nonmembers alike. Today, public employees in 23 states are covered by such laws. Only 6.6 percent of private-sector employees are unionized, compared with 35.7 percent of government workers.
In Monday’s case, 10 California teachers are challenging that state’s law, under which nonmembers’ fees can be as high as 100 percent of members’ dues. The National Education Association, of which the California union is an affiliate, gets a portion of nonmembers’ fees. The NEA began endorsing presidential candidates in 1976 (it favored Jimmy Carter, who promised to create the Education Department) and always endorses Democrats for president. Government workers unions provided much of organized labor’s estimated $1.7 billion in political spending in the 2012 cycle. In the 2014 off-year elections, the NEA was the third-largest political spender, almost entirely for Democratic candidates, groups or causes. In 36 states, from 2000 through 2009, teachers unions spent more on state elections than the combined spending of all business associations.
Interestingly, the 10 California teachers do not stress that they are conscripted into funding such direct, overt and explicit political activity. Rather, they make the more lethal (to public-sector unions’ power) argument that even the use of their fees to fund core union activities such as collective bargaining constitutes a “multihundred-million-dollar regime of compelled” — hence unconstitutional — “political speech.”
