Talk Elections

I thought of this question seeing this post:


In the past the Supreme Court has recognized freedom of association to apply to the First Amendment, arguing that it is part of free speech. In my mind I thought that "isn't the government forcing its employees to pay union dues to unions forcing them to endorse the unions' opinions?" It seems to me to be forcing them to endorse speech that they may not agree with, so would be a violation. What do you guys think?

Yes.  It's fine in private business, however (although that runs into another whole host of problems with the egregious and blatantly unconstitutional Wagner Act).

Do you mean "no"? The question is whether it's constitutional.

Sorry, misread the question.  Count one "yes" vote in the poll as "no." :P

Well, there's my quote, though I can't say whether it's unconstitutional or not.

     Given that the Supreme Court has ruled in the past that giving money is a form of protected free speech, I suspect that they would agree with Dibble that Michigan's policy constitutes mandatory endorsement of unions, which would be a violation of a person's right to freedom of speech.

At the moment, there is no reason for there to be a difference in constitutionality for public and private employees.  No one is forced to take a government job, so the coercion argument applies equally for both public and private employment.

The problem with that logic is that the Constitution applies to the government in ways it doesn't apply to individuals. As an employer, the government would be required to adhere to those standards whereas a private employer might not be so required. (that's not to say that additional laws couldn't be created to make employers adhere to them, it's just that the Constitution itself doesn't require it)

But as I pointed out, the government here is only acting as one of many possible employers, not sole employer, so the restrictions on what could be done are not as stringent, since Fourteenth Amendment concerns don't apply .  About the only thing that might be applicable on the issue of labor rights in the Constitution (absent some appeal to the Ninth Amendment based on the theory of natural law) would be if a legislative ban on union shop contracts or on union membership for government employees would be considered to be an infringement on the First Amendment rights to peaceably assemble and/or petition the Government.

I got that - I'm saying that I think you're wrong. Government as an employer must adhere to the standards by which government is bound as far as is reasonably possible, regardless of whether or not there are other opportunities for employment available.


Well isn't that the opposite side of the same coin? Isn't forcing union dues essentially forcing you to be a member of a union? The thing about rights is that you're supposed to have a choice about when to exercise them.

The employee has the choice whether to sign the employment contract that mandates the payment of union dues, so even though it's a "mandatory" payment it's still legally voluntary.

You would only be forced to pay union dues if you were forced to be a government employee.  Your argument could be used to support the general proposition that the union shop is unconstitutional regardless of whether the employer was public or private, but not that only government be affected by a constitutional ban on having a union shop in its workplace.

Personally, I think this issue is not dealt with directly in the Constitution, but the Congress does have authority under the Commerce Clause to ban union shops if it chooses to, or to override a State ban if it chooses.

Yes, we've established that. That's not why I think you're wrong. REGARDLESS of whether there's a choice in employment involved, I still think the government as an employer is to be held to certain standards.

There is Supreme Court precedent for this notion. For instance let's go with Pickering v. Board of Education (http://en.wikipedia.org/wiki/Pickering_v._Board_of_Education) - a teacher was fired for criticizing the school board in a letter to the paper, but the SC reinstated the teacher because they felt his First Amendment rights had been violated. Private employees however have no such Constitutional protection in regards to criticizing their employers in such a manner.

In Pickering there was a specific Constitutional provision that can be referred to that establishes the difference between what can be done publicly and privately.  You've yet to point to anything other than a vague "the government shouldn't do that".

Did I not mention the First Amendment in the opening post?

You never addressed how if a union shop were considered a restriction on peaceable assembly is any less or more of a concern for a private employer compared to a public employer.  If anything, banning a union shop from existing whether for public or private employers is a restriction.

Why would I have? It's not really a concern for a private employer, at least not in the same way, because they are private - I view the two types of employers as having to hold to different standards. The portion of the Constitution we're talking about here only applies to government.

If it is felt that there's reasonable concern, it can be addressed by matter of law, either by the states or by the federal government where the commerce clause applies. If such a law would be unconstitutional you'd have to address it via amendment.


If it was banned by law for a private company I would agree it would be unconstitutional, because as a non-government entity they would have greater leeway as to whom they would like to associate with and what speech they would like to support.

So you are arguing that government employees have less freedom of assembly than non-government employees (i.e., they cannot negotiate for a union shop contract) because of the First Amendment guarantees on freedom of assembly?  Quite the paradox there.

That's the crucial difference between this and Pickering.  In Pickering upholding the teacher's right to speak did not interfere the rights of other government employees to speak as they chose.  You would however hold that in order to uphold the rights of government employees who do not wish to work for a union shop the government must violate the the rights of government employees who do wish to work for a union shop.  I see nothing in the Constitution that would give preeminence to the rights of either group of government employees.  That leaves the question of whether a government workplace ends up being a union shop a matter for negotiation, just as it would be for a private employer.

Not really. Government employees have every right to join a union if they so wish - but the government, their employer, can't force them to do so.


When rights conflict you have to determine which ones hold more weight. I do see such a conflict here - the right to negotiate for certain employment conditions vs. the right not to be forced to endorse certain types of speech - and in this case I see there being more weight on the latter. As I stated, those who wish to join a union would still be able to and thusly should be able to attempt negotiations for most things that a union might wish to negotiate for, so their speech and right to assemble is not curbed to a point I'm uncomfortable with to protect the rights of those who do not wish to have to forcibly endorse that speech.

Repeated assertion doesn't make your opinion here true.  I'd agree with your premise if people were forced to work for the government.


And here we get to the crux of the matter, you are holding that your opinion of which right has precedence is so indisputably correct that it rises to the level of being a constitutional interpretation to be dictated by judicial fiat instead of being one to be left to legislative or executive opinion that the people can overrule if they wish by throwing the bums out who hold that opinion.  I agree that it isn't a good idea for government workers to be forced to join a union, but I disagree that it is unconstitutional.

This particular sentence was refutation to the claim that there was a paradox, not trying to assert something is true by repetition. To expound on it the union could still attempt to negotiate with their government employer for a union shop if they wanted to even if the employer couldn't legally give it to them - the restriction is actually on the employer, not the employees.


Well then I think we've both said our piece, so I don't think further discussion is going to get us anywhere unless you think you've got something else to add because I don't at this point. Good debate, hope to have another one.

Agreed, a good debate, and one in which I also think we've said all we have to say on this.

I haven't seen the Hatch Act mentioned yet in this debate.  The Court already considered the idea of whether or not, under the First Amendment, public employees may be compelled to make contributions in the form of mandatory fees in lieu of union dues that support political activities.  I don't know what the percentage is today of public unions as opposed to private -- but I know it's growing.

Abood v, Detroit Board of Education dealt with this in 1977. The Court agreed that "the fact that the [teachers objecting to union fees and the union's political activities are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of their Constitutional rights." Potter Stewart noted in the decision: "the Constitution requires only that such expenditures be financed from charges, dues, or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of government employment."