Amicus With Dahlia Lithwick: “Labor Pains”

Episode Date: January 9, 2016
Podcast Theme: Examination of Friedrichs v. California Teachers Association—the Supreme Court case threatening to upend how public sector unions collect fees from non-union members, with broader implications for labor, free speech, and politics.

Overview

In this episode, host Dahlia Lithwick tackles the Friedrichs v. California Teachers Association Supreme Court case. The episode examines whether public sector unions can require non-members to pay “agency” or “fair share” fees to support collective bargaining, or whether such compulsory payments violate First Amendment rights. Lithwick brings on two experts with opposing views—Ilya Shapiro from the Cato Institute (supporting Friedrichs, the teachers challenging the fees), and Sam Bagenstos from the University of Michigan Law School (supporting the unions and municipalities). Their dialogue unpacks the legal, historical, and political stakes tied to the case.

Key Discussion Points & Insights

1. What’s At Stake in Friedrichs v. California Teachers Association?

• The Supreme Court will decide if requiring non-union teachers to pay agency fees infringes on their First Amendment rights.
• A win for the teachers could mean public sector unions nationwide could not require non-members to financially support collective bargaining, pushing all states toward “right to work” conditions.

2. Why Is This a First Amendment/Free Speech Case?

[02:32-04:15]

• Ilya Shapiro: Argues that even collective bargaining is political advocacy, especially in the public sector.
• Quote:
  • “Do you have to pay for speech or advocacy that you don’t necessarily agree with?... That’s why this comes under the rubric of free speech or freedom of association, these general protections that the First Amendment is supposed to provide.” — Ilya Shapiro [02:52]

3. The Precedent: Abood v. Detroit Board of Education (1977)

[05:01-07:11]

• Abood allowed unions to collect agency fees from non-members for collective bargaining, but not for overtly political activities like campaigns and lobbying.

• Justifications from the time:

  • Promoting “labor peace”
  • Preventing “free riders” (employees who benefit from union-negotiated contracts without paying for representation)

• Quote:

  • “In the 1977 case, Abood...the court said that states can’t force workers to, quote, to contribute to the support of an ideological cause they may oppose as a condition of holding a job.” — Ilya Shapiro [06:45]

4. Is the Distinction Between Political Activity and Collective Bargaining Real?

[07:11-07:49]

• Ilya Shapiro: Contends that in the public sector, even collective bargaining is inherently political, blurring the lines Abood tried to draw.

• Quote:

  • “Particularly in the public sector context, collective bargaining is inherently political.” — Ilya Shapiro [07:43]

5. Justifications for Agency Fees: Still Valid?

[07:49-09:11]

• Shapiro doubts that concerns about labor peace and free riding are as pressing as when Abood was decided, suggesting shifts in context and jurisprudence.

6. The Stare Decisis (Precedent) Dilemma

[09:11-11:04]

• Debate over whether the Court should overturn established precedent if they now believe Abood was wrongly decided.

• The swing votes may emerge from typically institutionalist justices like Chief Justice Roberts or even Justice Scalia.

• Quote:

  • “Ironically, it may be Justice Scalia who is the swing vote on [overruling Abood]... Scalia...might be kind of the last vote to draw between whether to overrule Abood or even if the teachers win, but maybe more narrowly.” — Ilya Shapiro [10:35]

7. Justice Scalia’s Role: A Wildcard

[11:04-13:26]

• Audio from Harris v. Quinn (2014) features Scalia musing about whether government can have interests similar to private employers regarding unions.
• Scalia’s skepticism suggests the case could be decided on narrower grounds, not total overturning of precedent.

8. Political Motives and the Right-to-Work Movement

[13:26-16:31]

• Critics of the Friedrichs challenge argue it’s a thinly-veiled political attack on unions, not a principled First Amendment case.

• Ilya Shapiro replies that regardless of funding or political motives, key legal principles are at stake, and public sector union dynamics are fundamentally different.

• Quote:

  • “It shouldn’t be the case that the state government bargains with the union akin to two wolves bargaining with each other about what’s for dinner. And the sheep…the taxpayers or the workers—don’t get a say in that sort of relationship.” — Ilya Shapiro [15:27]

[17:02] Second Half: The Municipalities’ & Unions’ Perspective

Guest: Sam Bagenstos, Law professor at Michigan and civil rights litigator

1. Public vs. Private Labor: Are They Different?

[17:30-19:05]

• Sam Bagenstos: For legal purposes, governments as employers should be treated much like private employers; the basic logic of unions applies.

• Changing precedent to differentiate public sector unions represents a dramatic shift—could destabilize labor relations and service delivery.

• Quote:

  • “If what you’re doing is complaining about something having to do with work, that’s not political speech.” — Sam Bagenstos [19:08]

2. Stare Decisis and the Practical Fallout

[20:22-23:06]

• Overturning Abood would disrupt thousands of municipal contracts and existing workplace relationships.

• Stability in the law is a value in itself, especially with so many parties relying on it.

• Quote:

  • “You have hundreds, if not thousands, of municipalities...who have entered into contracts with the unions...that depend on the collection of a fair share fee being legal that might have to be renegotiated under stress.” — Sam Bagenstos [21:29]

3. Why Municipalities Defend Agency Fees

[23:06-26:20]

• Municipalities value unions as stable, reliable negotiating partners. Agency fees ensure unions have resources to efficiently collaborate, leading to cost-saving innovations that benefit taxpayers.

• Examples: Chicago's garbage collection and Toledo’s worker safety measures only possible with strong unions.

• Quote:

  • “By having strong and stable negotiating partners...they’re able to develop these long-term relationships which actually create an opportunity to find cost savings and pass some of those cost savings on to the workers...” — Sam Bagenstos [24:22]

4. The Free Rider Problem Explained

[26:20-29:40]

• Without agency fees, rational employees have no incentive to pay for representation they get for free—eventually hobbling unions’ ability to function.

• Real-world example: Unions suffer significantly in resources in states without agency fees, leading to less effective representation.

• Quote:

  • “If everybody makes that individually rational decision, then pretty soon the union doesn’t have any money or has very little money to do the things it needs to do.” — Sam Bagenstos [28:40]

5. What Happens if Abood is Overruled?

[29:50-32:08]

• Significant immediate blow to public sector unions in many states; potential for labor unrest, more militant union tactics.

• Some places may adapt, but overall the loss of mandatory support would disrupt services and increase conflict.

• Quote:

  • “You could see more strikes, you could see more kind of high stakes labor strife.” — Sam Bagenstos [31:14]

6. The Political Shadow of the Case

[32:08-35:24]

• Acknowledges that public sector unions are backbone donors/supporters of the Democratic party, and the case has clear ideological undercurrents.

• However, stresses that the legal principles and the practical functioning of government are more important than overt partisan calculations.

• Quote:

  • “What’s going on here is really about whether not just workers can get together and work together to negotiate with their employers...but also whether employers in the public sector can reap the benefits of dealing with the kinds of representatives of workers that they’ve been able to deal with, which has given them great benefits.” — Sam Bagenstos [34:30]

Notable Moments & Quotes

• [02:52] “Do you have to pay for speech or advocacy that you don’t necessarily agree with?...” — Ilya Shapiro
• [07:43] “Particularly in the public sector context, collective bargaining is inherently political.” — Ilya Shapiro
• [21:29] “Hundreds, if not thousands, of municipalities...have entered into contracts...that depend on the collection of a fair share fee...” — Sam Bagenstos
• [28:40] “If everybody makes that individually rational decision, then pretty soon the union doesn’t have any money...” — Sam Bagenstos
• [31:14] “You could see more strikes, you could see more kind of high stakes labor strife.” — Sam Bagenstos
• [34:30] “What’s going on here is really about whether not just workers can get together...but also whether employers in the public sector can reap the benefits...” — Sam Bagenstos

Important Timestamps

• [02:31] — Ilya Shapiro explains why agency fees are seen as a First Amendment issue.
• [05:01] — Breakdown of Abood v. Detroit Board of Education precedent.
• [09:11] — The dilemma of overturning Supreme Court precedent (stare decisis).
• [11:30] — Audio/Analysis: Justice Scalia’s view from Harris v. Quinn.
• [13:57] — Responding to claims the case is a right-wing attack on unions.
• [17:30] — Sam Bagenstos on public vs. private sector union differences.
• [20:22] — The costs and impact of overturning Abood for cities and unions.
• [26:20] — Free rider problem and union financing explained.
• [29:50] — The likely real-world fallout if agency fees are struck down.
• [32:08] — The case's political significance contextualized.

Conclusion

This Amicus episode provides a deep dive into the constitutional, practical, and political questions surrounding Friedrichs v. California Teachers Association. The guests vividly illustrate both legal arguments and real-world consequences, from teachers’ speech rights to the future of labor organizing and government services. The case is positioned as a watershed for public sector unions nationwide, with ripple effects for law, politics, and everyday workers.