Wednesday, January 13, 2016

Why Does Passage Through Government Coffers Launder Money?

by Michael Dorf















David Ricardo said...

I am at a lost to understand how any discussion in this area can omit the issues and decisions in the Docs vs Glocks case in Florida. In that case for those unfamiliar with it the 11th Circuit has ruled several times in favor of the state of Florida being able to regulate and proscribe what doctors can and cannot say with respect to firearms and their patients. The rationale for the rulings is that the state has the authority to regulate speech with respect to its authority to regulate professional conduct.

The argument of the state is absurd to a degree not even close to the issues in the situation with union dues for public employee unions. And yet the great conservative defenders of free speech are nowhere to be found. Why?

The answer is straight forward. Conservatives are not interested in free speech. They are interested in using government power to restrict the activity of parties they hate (unions as number 1) and to support activities of those who support their issues (guns for all). It is nice that people like Mr. Dorf examine the issue here in an objective manner with respect to the Constitution and its guarantees of liberty, but it misses the reality of the truly totalitarian nature of modern conservatism. Freedom of speech is not the issue here for Justices like Alito, the issue is how can the Court be used destroy public employee unions.

Joe said...

The liberals don't really want to rely on stare decisis, I think, though Breyer at least (and others probably) has consistently applied this honestly. Breyer, e.g., used it to strike down a very low threshold in a campaign finance case. They think the rule in place is valid on the merits. If the precedent is a compromise, at any rate, that means it is not totally consistent. That is the nature of compromises.

One thing that comes to mind in regard to the public union case (the link below touches upon this) is that the Supreme Court repeatedly has treated public speech as more open to limitation, including the rights of government employees to speak on certain matters at all without being fired or otherwise penalized. Unions are a means for governments to handle employee disputes and like rules that disallow unions to discriminate by race even if that is arguably a violation of freedom of association, the public nature of the unions here can be regulated more than other parties.

If that is okay, why the fee here is not (to avoid free-riders etc., something Scalia and Kennedy in fact agreed to in the past as shown by the second link) allowed is unclear to me. There seems to be a simplistic line being drawn here, one that as the first comment notes in a fashion is suspiciously inconsistent.

Joe said...

ETA: Another example I just read is that Scalia (and Kennedy) dissented when the Supreme Court held various government jobs could not turn on what party you belonged to, such as firing a government contractor for being a Democrat.

Unknown said...

I still don't understand how this situation involves compelled speech. The union provides a service to the bargaining unit member who is not a union member. The union charges for that service. Here in Maryland, I have to pay a county ambulance tax to support my local volunteer fire department, of which I am not a member. Is that compelled speech?

Michael Barnes said...

An agency shop and a closed shop are not the same thing. As traditionally defined, a closed shop requires the employee to be a member of the union before hiring and to maintain membership during employment. The closed shop was basically outlawed by the 1946 Taft-Hartley Act, which was vetoed by Pres. Truman, but overridden by the Republican majority that came to power in the 1946 mid-term elections.

That being said, Robert Taft, "Mr. Republican," was fair-minded enough to understand and accept the free-rider problem, and so the agency shop, where non-union members pay an agency fee, was allowed under Taft-Hartley.

Is it such a stretch of imagination to consider that if public-sector agency fees are compelled speech, then private-section agency are, too? Certainly the actions of large corporations have public effects. I doubt if Justice Alito would hesitate to make such a leap.

Ah, for Republicans like Taft, who is probably rolling over in his grave.

Omer said...

I'm not sure /i follow the logic of the objection to Cressman v. Thompson. Couldn't the government force a person to have the American Flag on their licsense plate? If they could, wouldn't that infringe on a person's free speech rights? If not, what about the Flag or the coat of arms on one's passport? What about forcing a child to go to a school with the flag on it, or US employees to work in a building with the Flag on it?

Joe said...

Flag, I'd say no. Passport is trickier -- license plate more a "personal billboard" that is open to the world on a daily basis. And, flag tied to nation, a core aspect of the passport's "message." Much less important on a car's license plate. The school or building is not as personal, tied to the person. See, Wooley v. Maynard.

Unknown said...

What is next? An anti-environmental group refusing to pay for garbage collection because they feel like they are subsidizing environmentalist agenda they disagree with?

I wonder if the conservatives on the court are trivializing the 1st Amendment without realizing it. I certainly tend to think so.

Shag from Brookline said...

Might absolute liberty lead to anarchy?

T Jones said...

How does this tie in to Hobby Lobby, et al., where the employer objects to paying for insurance which might be used to fund abortion, but (apparently) not to paying wages which might be used to pay for abortion?

Greg said...

With regard to the Verdict column, it seems to me that any decision that goes so far as to implicate discrimination law would be GROSSLY over-decided, and almost unambiguously maliciously so. Conduct restrictions will always implicate speech and all speech will in some way be conduct, but the appeals court just incorrectly identified the action of covering a license plate on the conduct/speech line. As far as Judge McHugh's concurrence goes, he is clearly wrong, for the reasons that you outline.

With regard to the current topic goes, Abood was a reasonably decided compromise, and deserves the respect of stare decisis absent a new, strongly compelling argument against it. Other than a modern distaste for unions, I see no new argument.

As far as the larger concept of compelled payments vs. taxes goes, I think the public rightly distinguishes between compelled payments to the government (taxes) that the government can spend as it wishes, versus compelled payments to other citizens. It is even worse when those payments are for the express purpose of funding speech with which the individual disagrees. This has to do with the larger idea that laws that compel action are generally worse than those that restrict action. Taxes are a special case of compelled action that we (grudgingly, for some) accept. Laws that compel action such as making certain purchases or requiring payment of union dues are inherently more suspect than laws that restrict action such as selling certain products or services. While lots of laws that compel action are legitimate, they are less common and often are really for the purpose of restricting all actions except for the ones that the state deems safe or appropriate.

Example: The government can't make you go into business, but they can restrict you from conducting business in a discriminatory way, including by compelling you to act in a non-discriminatory way.

How all this applies to Friedrichs is that the government is compelling conduct, but in this case is doing so in the context of an employer-employee relationship. Since having an agency shop is clearly a case of the government acting as employer, it's reasonable to give its actions a higher level of deference than we would normally allow it. The Abood compromise was that in the contexts when the union is primarily acting within the employer-employee relationship, the government can act as an employer and compel actions on its employees. However, when the union speaks in a way that is not directly related to the employer-employee relationship, the government's requirement compelling employees to contribute to that speech extends beyond the employer-employee relationship and is thus an objectionable form of compelled conduct with a strong speech component.

Like most compromises, Abood treads a fine line and doesn't provide any strong guidance that would apply in other contexts. This is the way much of the "government as employer" case law looks. Trying to strictly apply a single principle will never result in these kinds of compromise decisions because it is only through the application of competing principles that such compromises are reached. I fear that the more conservative justices are too blinded by their hatred of unions to realize that there are more principles implicated here than simply speech.

Unknown said...

It seems to me the action you take in both the instances is the same - you give money. What differs is who you give the money to, or how the money changes hands, but in each instance the action you take is the same unless one believes the government "erases" an individual's action so that the individual is sent back to the original state where s/he had not given money to the government to begin with. But that cannot be right since you are out of some amount of money after giving your money. Either to the government or to the 3rd party, the money is gone and you are out of the amount you gave.

Thus I do not think the action/inaction distinction is genuine in this context. Nonetheless, I sense something instructive in that distinction for the following reason.

One way to answer Mr. Dorf's question is that individuals understand the government (i.e. State) to be something bigger than herself/himself, a community s/he belongs. The shared contemporary experience as well as the history under the same government provides individuals with a sense of belonging, a kind of comfort one feels when s/he can be herself without isolation, as s/he often does with her/his family and friends. In this view, allowing/compelling the government acting on your behalf works as a sharing the responsibility and honor of your own with the larger community - spreading the misery if you will.

This works because when you have the government act on your behalf; you kind of know that your fellow citizens have your back. They must, since you are essentially enlisting your fellow citizens as accomplices/comrades. You may not wash off every guilt, you may not return the favor always proportionally. (Giving money to the government in this context works as your return to its favor as well) But at least you know you are not alone, which gives you a sense of security and legitimacy.

The foregoing might be one answer to the question why the government "launders money" when it acts as a conduit among its citizens. And the relevant distinction here might rather be "acting together" against "acting alone," than "action" against "inaction."

P.S. This is merely one way to answer the original question, not that I endorse it.

Greg said...

My point was that taxes are a special case of government compelling action that we have already accepted, despite them being (as you correctly identify) part of the larger class of compelled action that is inherently suspect.

I also think the government as representative of the people argument that Kane is making is instructive. Paying taxes to the government is like paying dues to an organization that you are already a member of and that will be taking actions on your behalf, since the government is supposed to represent the people. Being compelled to make payments to an organization you are not a member of (in this case the union) is inherently a lot more questionable. Freedom of association is certainly implicated without even getting into compelled speech issues.

Again, I like Abood, and think it's the right compromise. When the union is acting as "all employees" then it makes sense that all employees are inherently a member of that group, due to their desire to be employed in that organization. When the union is acting as "all union members" then it makes sense that not all employees want to be a member of that group. I'm just saying that there are good reasons to draw distinctions between being forced to pay taxes to a government that is inherently supposed to represent you and being forced to pay a third party that may not represent you at all.