Harvard Law Review Harvard Law Review Harvard Law Review

Labor Law

Compelled Subsidies and the First Amendment

The full text of this Foreword may be found by clicking the PDF link to the left.

Sometimes the government compels people to pay money to organizations they oppose. A lawyer may be forced to fund a bar association, a college student forced to fund student group activities, a public employee forced to fund a labor union. Unsurprisingly, people often bristle at such compulsion. People don’t like having their money taken, and knowing that it will be spent on causes they oppose seems to add insult to injury. But when is it unconstitutional?

For over forty years, the Court has unanimously concluded that being required to pay money to a union, or to a state bar, is a serious burden on one’s First Amendment rights.1×1. See Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), overruled by Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018); Keller v. State Bar of Cal., 496 U.S. 1 (1990). This burden, the Court has held, is generally unconstitutional when the money is used for most kinds of political advocacy.2×2. See Abood, 431 U.S. at 235–36; Keller, 496 U.S. at 14.

In Janus v. AFSCME,3×3. 138 S. Ct. 2448. a majority of the Court went further and held that requiring public employees to pay union agency fees is categorically unconstitutional, even when the money is used for collective bargaining.4×4. See id. at 2486. Such public-sector collective bargaining, the majority held, is itself inherently political.5×5. See id. at 2480. And the government interests in mandating such payments don’t suffice to justify such requirements.6×6. Id. at 2465–69, 2477–78. There was a strong dissent by four Justices, but as we discuss in Part I, we think the majority had the better argument on both of these points.

But we think the majority — and for that matter the dissent, and the opinions in Abood v. Detroit Board of Education7×7. 431 U.S. 209. and Keller v. State Bar of California8×8. 496 U.S. 1 (1990). — erred on the preliminary point. The better view, we think, is that requiring people only to pay money, whether to private organizations or to the government, is not a First Amendment problem at all. The employees in Janus were not compelled to speak or to associate. They were compelled to pay, just as we all are compelled to pay taxes; our having to pay taxes doesn’t violate our First Amendment rights, even when the taxes are used for speech we disapprove of — likewise with their having to pay agency fees. If we are right, as we argue in Part II, then the result in Janus was wrong.

In Part III, we turn from evaluating the decision to anticipating its consequences. We doubt Janus will have significant effects on government speech rights (section III.A), but it will likely forbid compelled funding of other forms of private speech. Janus will likely extend to a prohibition on state bar dues, at least so long as the bar is seen as sufficiently removed from other government agencies (section III.B). It might also lead to constraints on student governments’ use of student activity fees at public universities, though universities can create accounting workarounds that will practically allow such student activity funding to continue (section III.C).

Finally, and perhaps most consequentially, Janus may lead to massive liability for unions that have collected the agency fees that are now viewed as unconstitutional (section III.D). Though the fees were seen as valid when collected, the Supreme Court’s precedents say that constitutional reversals in civil cases are generally retroactive, so everyone in Janus’s shoes can get agency fee refunds just as Janus himself could (at least so long as the statute of limitations has not run). Moreover, private organizations such as unions are generally not entitled to qualified immunity or similar defenses. While the unions do have some possible arguments to mitigate the damages or try to claim a special form of good faith, those defenses are speculative, and cannot be counted on.


* Professor of Law and Aaron Director Research Scholar, University of Chicago Law School (baude@uchicago.edu).

** Gary T. Schwartz Professor of Law, UCLA School of Law (volokh@law.ucla.edu). The au-thors thank Samuel Bray, Chad Flanders, Jeff Hetzel, Marty Lederman, Jonathan Mitchell, Casey Pitts, Richard Re, Stephen Sachs, Mark Storslee, and Aaron Tang for their help.