For thirty-five years after Abood v. Detroit Board of Education,1 the First Amendment unquestionably permitted a public-sector union to collect fair-share fees from those members of a collective bargaining unit who refused to join the union.2 These so-called “agency shop” arrangements served the state’s interests in promoting labor peace3 and in preventing nonmembers from free riding on the union’s bargaining efforts.4 In 2012, though, the winds shifted against Abood, whose reasoning the Court now labeled “something of an anomaly.”5 Last Term, in Harris v. Quinn,6 the Court retreated further, holding that the First Amendment prohibits the assessment of a fair-share fee against in-home caregivers — paid by the State of Illinois but hired and supervised by their patients — who refused to support their exclusive union representative.7 Underlying the Court’s refusal to extend Abood to “quasi-public employees”8 were two doctrinal shifts. For the first time, the Court appears to have (1) protected employee speech9 about the terms of public employment because of its potential budgetary impact and (2) subjected a public-sector fair-share clause to scrutiny bordering on strict. Together, these moves seemingly drive a wedge between the law of fair-share fees and that governing public-employee speech generally.
Through its Home Services Program — also known as the “Rehabilitation Program” — the Illinois Department of Human Services uses federal Medicaid subsidies to pay “personal assistants” who provide in-home care to patients who might otherwise be institutionalized.10 Though Illinois sets the workforce-wide terms of the assistants’ employment,11 it is the patients who are otherwise “responsible for controlling all aspects” of the caregiver relationship.12 In 2003, then-Governor Blagojevich directed the State to recognize a union chosen by a majority of the assistants.13 The Illinois legislature soon codified that order, declaring the “assistants . . . ‘public employees’ of the State of Illinois — but ‘[s]olely for the purposes of’” collective bargaining.14
Later that year, the assistants elected Service Employees International Union, Healthcare Illinois & Indiana (“SEIU-HII”) as their exclusive representative.15 SEIU-HII and the State subsequently entered into two collective bargaining agreements containing fair-share provisions, as authorized by Illinois state law.16 These provisions required nonmember assistants “to pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment.”17
Banding together, three assistants filed a putative class action against Governor Quinn and SEIU-HII, alleging that the fair-share clauses compel objecting assistants to support SEIU-HII’s bargaining efforts, in violation of the First Amendment.18 In 2010, a federal district court replied that such fees are constitutional pursuant to “longstanding Supreme Court precedent.”19 Because the plaintiffs were designated public employees for collective bargaining purposes, and had not “alleg[ed] that the fair share fees . . . support[ed] any political or ideological activities,” the court dismissed the suit for failure to state a claim.20
The Seventh Circuit affirmed in part.21 Writing for the panel, Judge Manion22 noted that the Supreme Court “has not wavered from its position that, as a general matter, employees may be compelled to support legitimate, non-ideological, union activities germane to collective-bargaining representation.”23 Considered against the backdrop of Abood, the only question was “whether the personal assistants are . . . State employees.”24 Here, because Illinois held “significant control over virtually every aspect of a personal assistant’s job” — including fixing qualifications, approving service plans, and setting pay — it could be deemed an assistant’s employer even if she was also employed by her patient.25 Judge Manion thus held “that the State may compel the personal assistants, as employees . . . to financially support a single representative’s exclusive collective bargaining representation.”26
The Supreme Court reversed in part.27 Prefacing his opinion with a reminder that the Court recently “pointed out that Abood is ‘something of an anomaly,’”28 Justice Alito29 stated that Illinois “asks us to sanction what amounts to a very significant expansion of Abood.”30 For the majority, the question was whether Abood should apply “not just to full-fledged public employees, but also to others who are deemed to be public employees solely for the purpose of unionization.”31
In search of an answer, Justice Alito first retraced the Court’s steps to Abood.32 The trouble in Abood began, he argued, with the premise that the constitutionality of public-sector agency shops had been largely settled by two decisions that (1) said little about the First Amendment and (2) addressed private-sector union shops.33 When workers in Railway Employes’ Department v. Hanson34 challenged a statute authorizing rail companies to enter into union-shop agreements, the Court dismissed their First Amendment claim “with a single sentence” containing an inapt analogy.35 And when the Court took up a similar challenge in International Ass’n of Machinists v. Street,36 it skirted the constitutional question by construing the statute to prevent unions from using compelled fees “to support political causes which [an objecting employee] opposes.”37 Moreover, in treating these cases as dispositive, Justice Alito explained, Abood was blind to “difference[s] between the core union speech involuntarily subsidized” by private and public workers.38 Because public-sector wage negotiations blur the line between bargaining and lobbying, it is hard to distinguish permissible union expenses from their politically oriented cousins.39
Given these concerns, Justice Alito refused to countenance the expansion of Abood to assistants who were not, in his view, full-fledged public employees.40 Whereas the State typically governs all aspects of public employment, here supervisory authority over the assistants ultimately rested with the patients.41 With most conditions of the assistants’ employment thus insulated from state control, the majority argued, the principal justification for using agency fees to prop up an exclusive representative’s bargaining efforts had become a “poor fit.”42
Setting Abood aside, the majority considered anew whether a fair-share clause covering quasi-public employees “serve[s] a ‘compelling state interes[t] . . . that cannot be achieved through means significantly less restrictive of associational freedoms.’”43 The provision here did not pass muster. It contributed little to labor peace because, inter alia, the assistants worked not in a common facility but in patient homes.44 Most importantly, the defendants had failed to prove that the State’s interest in “exclusive representation in the public sector is dependent on a union or agency shop.”45 The majority thus held that the fair-share fee violated the objecting assistants’ First Amendment rights.46
Before concluding, Justice Alito declined the defendants’ invitation to affirm the Illinois scheme under Pickering v. Board of Education.47 Under Pickering’s balancing test — the Court’s traditional framework for evaluating free speech claims in the public workplace — the government may restrict a public employee’s speech “as a citizen on a matter of public concern” only if it “ha[s] an adequate justification for treating the employee differently from any other member of the general public.”48 But Justice Alito declared this framework inapposite because the Court had never “seen Abood as based on Pickering balancing”49 and Illinois was not acting as a “traditional employer.”50 For argument’s sake, though, he opined that the objecting assistants’ First Amendment interests would be protected under Pickering because (1) SEIU-HII’s efforts to secure increased wages were a matter of public import in an age of rising Medicaid costs and (2) Illinois could not justify the First Amendment burden that attends compelled union dues.51
Justice Kagan dissented.52 Because neither party had distinguished Harris’s fair-share clause from its cousin in Abood nor alleged that SEIU-HII misused agency fees for political ends, the Court faced a “straightforward question: does Abood apply equally to Illinois’s care providers as to Detroit’s teachers?”53 Like Judge Manion, Justice Kagan found it irrelevant that the assistants “are employees not only of the State but also of the disabled persons for whom they care.”54 Abood controls, she argued, because “Illinois has sole authority over . . . the issues most likely to be the subject of collective bargaining.”55
The dissent nevertheless applauded the majority for denying the plaintiffs’ “radical request” to overrule Abood.56 Notwithstanding the majority’s “off-base” attacks, Justice Kagan insisted it lacked “the special justification necessary to overturn Abood.”57 Furthermore, by discarding Abood, the Court would have introduced a sui generis wedge between the “law surrounding fair-share provisions” and the more permissive “law relating to public employees’ speech generally.”58 Though they “stemm[ed] from different historic antecedents,”59 the dissent observed that Abood and Pickering both recognize that the state as employer has broad power to enforce employment conditions impacting expression.60 Abood’s demise would thus have crafted “an anomaly,” for “[p]ublic employers could then pursue all policies, except [fair-share provisions], reasonably designed to manage personnel.”61
Buried amidst the many eulogies penned for Abood in the wake of Harris62 is a puzzle. The Court has long afforded generous “constitutional latitude” to the government qua employer,63 even with respect to speech restrictions in the public workplace.64 But Harris cuts against this current; though the majority distinguished Abood by characterizing the assistants as quasi-public employees, its reasoning — in electing not to extend Abood, in striking down the Illinois scheme, and in applying Pickering in dicta — reaches further, splashing doubt upon a key tool in the state’s regulation of its own workforce. This raises a question: can one reconcile the contra-Abood world augured by Harris with the “Court’s overall framework for assessing public employees’ First Amendment claims”?65 The majority’s reasoning suggests “no.”66 Buoyed by two doctrinal innovations — the aggregation of employee speech and the evident application of strict scrutiny to a “public-sector” fair-share clause — the Court no longer appears willing to grant the state as much leeway when it comes to compelling union dues.
For decades, the Court’s public-employee speech jurisprudence has reflected “the common-sense realization that government offices could not function if every employment decision became a constitutional matter.”67 As the Court explained in Garcetti v. Ceballos,68 “there would be little chance for the efficient provision of public services” if state employers lacked “a significant degree of control over their employees’ words and actions.”69 To resolve this concern — and “recognizing that both face comparable challenges in maintaining a productive workforce” — the Court “ha[s] tried to place the government-qua-employer in a similar . . . position to the private employer.”70
It is this effort that unites Pickering and Abood.71 In Pickering and its progeny, the Court “devised methods for distinguishing between speech restrictions reflecting the kind of concerns private employers often hold (which are constitutional) and those exploiting the employment relationship to restrict employees’ speech as private citizens (which are not).”72 Similarly, Abood declared the state “should have the same prerogative as a private business in deciding how best to negotiate with its employees.”73 In these cases, the Court took a stand: “except in narrow circumstances [it would] not allow an employee to make a ‘federal constitutional issue’ out of basic ‘employment matters, including . . . pay, discipline, promotions, leave, [and] vacations.’”74
Consistent with the notion that the government “has broader discretion to restrict speech when it acts . . . as employer,”75 the Roberts Court’s pre-Harris cases evinced little desire to protect broad swaths of speech in the government workplace.76 For example, in 2006, the Court ruled that public employees do “not speak[] as citizens for First Amendment purposes” when they “make statements pursuant to their official duties.”77 Thus, a deputy district attorney could be disciplined for recommending dismissal of a case.78 Likewise, in Borough of Duryea v. Guarnieri,79 the Court extended Pickering balancing to the Petition Clause, holding that if a public employee’s union grievance regards private concerns, it cannot give rise to First Amendment protection.80
Cast against this backdrop, Harris is — to borrow a phrase from Justice Alito — “something of an anomaly.”81 Although Harris technically distinguished Abood by emphasizing that the assistants were not full-fledged public employees,82 the majority took aim at the foundations of fair-share clauses generally. Neither its critique of Abood — which underlay the refusal to expand that decision — nor its reasoning in striking down the Illinois scheme turned on the quasi-public nature of the assistants’ employment. Instead, Harris presages a Court prepared to eviscerate the state’s ability to control one — but only one — form of public-employee speech.83 Behind this apparent doctrinal divergence lies a pair of progressions in the law governing fair-share fees.
First, in line with its skeptical take on public-employee speech claims, the Court repeatedly suggested pre-Harris that speech about public-employee compensation, being of no public import, falls outside the First Amendment’s protective umbrella.84 Harris broke sharply from this practice, however, by protecting the assistants from “involuntarily subsidiz[ing]” union speech on “issues such as wages, pensions, and benefits.”85 In both criticizing Abood and applying Pickering in dicta, the Court reasoned by aggregation: as members of a union come together to call for higher wages, their collective voices gain a salience they lacked individually.86 The majority’s reasoning was this: collective bargaining threatens public coffers to a far greater degree than does a single employee’s remarks.87 Thus, the majority criticized Abood for not grasping that union speech on public-sector wages reaches “important political issues,” particularly in an age of ballooning state payrolls.88 And in deciding the assistants would warrant protection under Pickering, Justice Alito insisted “it is impossible to argue that the level of Medicaid funding . . . is not a matter of great public concern.”89
Harris evinces a second line of retreat: the requirement that public-sector fair-share clauses survive what appears to be strict scrutiny. The law of public-sector fair-share fees long exhibited one oddity: for years the Court hinted at90 but never clarified the degree of scrutiny that would attach to such arrangements.91 That hesitation began to give way in Knox v. SEIU, Local 1000,92 however, in which Justice Alito explained — in a case involving full-fledged public employees — that “any procedure for exacting fees from unwilling contributors . . . must serve a ‘compelling interest’ and must not be significantly broader than necessary to serve that interest.”93 Knox, it seems, endorsed strict scrutiny in all but the most express terms.94 And though the Harris majority professed that “no fine parsing of levels of First Amendment scrutiny is needed,” it applied Knox’s standard not just to agency fee–assessment procedures, but — for the first time — to the underlying clause itself.95 Avowed judicial minimalism aside, Justice Alito laid the standard bare: “The agency-fee provision cannot be sustained unless the cited benefits for personal assistants could not have been achieved if the union had been required to depend for funding on the dues paid by those personal assistants who chose to join.”96
Together, Harris’s doctrinal novelties augur an Abood-less world to come.97 Notwithstanding efforts to cabin its opinion by qualifying the nature of the assistants’ employment, both the majority’s aggregation principle and its apparent application of strict scrutiny undermine reasoning at the heart of Abood.98 For instance, Abood is based on the premise that courts can distinguish between union expenses germane to collective bargaining and those pertaining to political causes.99 But where the Court believes public-sector bargaining — by virtue of its aggregated impact on public budgets — encroaches upon crucial political sensitivities, Abood’s conceptual framework is likely untenable.100 Furthermore, by insisting on proof that compelled dues are strictly necessary to the existence or effectiveness of “public-sector” exclusive representation, Justice Alito set out an empirical challenge that neither the defendants in Harris101 nor the Court in Abood could have met.102
Harris depicts a Court at a crossroads. Through the invocations of “aggregation” and “strict scrutiny,” Harris paints a landscape inhospitable to Abood. With these two brushstrokes, the Court appears poised to extend First Amendment protections to public employees at the bargaining table that they have long been denied in the office cubicle. But before Abood is dispatched to the land of doctrines forgotten, the Court will have to answer one question: why is only this public-employee speech worthy of such extensive protection?