In “Collective Panic,” Martha Derthick and I argued that teachers’ unions dodged a major blow in Harris v. Quinn (2014) but that they should hold off on popping the champagne.
The court’s decision in Quinn indicated that a prized precedent, Abood v. Detroit Board of Education (1977), might soon be overturned. Under Abood, public sector unions could collect “agency fees” from nonmembers, but those funds could not be used for ideological or political purposes. The logic of Abood was that unless public sector unions could collect those funds by compulsion, nonmembers would “free ride” on the collective bargaining efforts of the unions.
Some have always questioned this logic. It’s not free riding if you never wanted the ride. It’s more like being clubbed in the head, tied up, and thrown in the trunk. Regardless, without the ability to punish these potential free riders, union membership would collapse. As Daniel DiSalvo has noted, “In nearly every state that permits agency fees, more than 90 percent of teachers belong to unions. In states that don’t allow agency fees, only 68 percent of teachers are unionized.” Since agency fees cost nearly as much as a full union membership, individuals see little reason not to join the union. Losing Abood would be a “crippling blow” for public sector unions.
In Quinn, Justice Alito argued that Abood created an “anomaly” that at best rested uneasily with First Amendment principles. Because public sector unions are public, all of their bargaining is political. Negotiating with the government means negotiating with taxpayers’ representatives. Thus, it is specious to draw a...