Tang, Aaron, Public Sector Unions & the First Amendment after Harris v. Quinn and Burwell v. Hobby Lobby (March 28, 2015). New York University Law Review, Forthcoming. Available for download at SSRN: http://ssrn.com/abstract=2586491

“When the Supreme Court struck down the so-called contraceptive mandate in Burwell v. Hobby Lobby Stores, it rested its ruling on the ground that the federal government could attain its professed interests in public health through a less restrictive means: Rather than compelling employers to provide contraceptive coverage to their employees (over the objections of religious corporation owners), the government could assume the cost of providing the contraceptives directly. In dissent, Justice Ginsburg cautioned that it would be difficult to discern a limiting principle for this “let the government pay” alternative, warning that it might force the government to shoulder substantial costs anytime a religious employer were to object to generally applicable regulations ranging from mandatory vaccination coverage, to minimum wage laws, to equal pay for women.  Missing from the dissent’s parade of horribles was the possibility that the same alternative might render infirm another commonplace government policy long the source of heated debate in the related free speech context: the requirement that all public employees in a unit — willing and unwilling alike — pay “fair share fees” to support the collective bargaining activities of a union. That omission was notable given that on the very same day Hobby Lobby was issued, the Supreme Court held in Harris v. Quinn that the First Amendment precluded Illinois from forcing a particular group of anti-union home health workers to pay fees in support of a union. Although the Court cabined the direct impact of Harris to just those unions that represent workers who (like the home health care providers at issue) are joint employees of the state and another employer, the case still left labor proponents deeply worried about the next case, which might threaten the financial future of all public sector unions across the country.  In this Article, I argue that the future of public sector unions is both dimmer and brighter than labor proponents have realized, for a reason presaged in Hobby Lobby. Dimmer because compelled fair share fees violate the First Amendment rights of dissenting employees in light of the government’s less restrictive means for attaining its interests in public sector unionization: Rather than infringing on the First Amendment interests of objecting employees by forcing them to pay fees in support of a union to which they are ideologically opposed, the government can — just as in Hobby Lobby — pay for the challenged activities itself. Indeed, the union fee case may be simpler than Hobby Lobby because government employers can pay for union bargaining activities in a revenue neutral manner, offsetting union costs through future reductions to salaries or benefits in which employees have no vested entitlement. Yet this very alternative also means that the picture may be less bleak than labor proponents have feared. For even if the Court were to strike down public sector fee agreements, imposing a national right-to-work regime under the aegis of the First Amendment, pro-union governments and their union counterparts could simply renegotiate their contracts to include direct government reimbursement provisions in lieu of fair share fee clauses.  In addition to exploring this hidden connection between Hobby Lobby and Harris, this Article proposes an answer to a longstanding puzzle in the Court’s First Amendment jurisprudence regarding the proper standard of scrutiny for compelled union fees — a puzzle that Harris explicitly left unsolved. And it concludes by offering a few observations concerning the impact of the government-payer alternative for the future of public sector labor unions and the First Amendment more broadly.”