Academic journal article Northwestern University Law Review

Reconciling Agency Fee Doctrine, the First Amendment, and the Modern Public Sector Union

Academic journal article Northwestern University Law Review

Reconciling Agency Fee Doctrine, the First Amendment, and the Modern Public Sector Union

Article excerpt


For forty years, the law of public sector collective bargaining has teetered on a single precedent, reflecting an uneasy compromise. Under the approach established in Abood v. Detroit Board of Education,1 public employers and unions may enter into limited "agency shop" agreements as a means for unions to recoup their collective bargaining and contractrelated expenses. Unions may charge nonmembers "agency" or "fair share" fees in "exclusive representation" regimes on the grounds that nonmembers also obtain the benefits of collective bargaining.2 In contrast, unions are forbidden from using agency fees to cover expenses incurred to express their ideological or political views because requiring nonmembers to subsidize such expressive activities would violate their First Amendment rights.3 This compromise, hinging on the distinction between collective bargaining and political activities, has proven to be as divisive as it has been enduring.4

For decades, the scholarly literature on Abood has generally fallen into two distinct camps. On one side, critics have lambasted the decision as inconsistent with First Amendment principles, theorizing that agency fees compel the expression of nonmembers.5 On the other side, scholars have defended Abooďs compromise as a justified means of promoting state government interests in efficient labor relations and preventing "free riders."6 As the Supreme Court prepares to consider a direct challenge to Abood and the agency fees it permits this term in Janus v. AFSCME, these twin views must be meaningfully revisited.

Both of these traditional camps overlook two key developments. First, public sector labor statutes and union activity look very different now than they did four decades ago. Second, First Amendment jurisprudence has evolved to protect not only familiar conceptions of free speech but also emerging interests in association and spending. These developments foreclose any effort to neatly overrule Abood on free speech grounds.

This Article proposes a better way to conceptualize agency fees and a better way for courts, unions, and reformers to navigate the complex intersection of public unions and individual expressive rights within an existing First Amendment framework.7 It suggests that agency fees be brought into step with current political contribution and campaign finance jurisprudence by viewing compelled contributions as the mirror image of contribution restrictions. In this framework, instead of limiting agency fees to those germane to collective bargaining, courts would limit agency fees to those reasonably necessary to perform the union's statutory duties as an exclusive bargaining representative. Under this "statutory duties" framework, agency fees subsidizing union activities that arguably infringe on payers' rights would be tolerated. But the collective bargaining statute permitting these activities and agency fees must be "closely drawn" to avoid unnecessary abridgements and match a "sufficiently important [government] interest."8

Bringing agency fees in line with campaign finance jurisprudence has several virtues. It logically tethers the doctrine to other modern First Amendment principles while still respecting Abooďs foundational judgment that some forms of public sector agency fees may be constitutional. Political contribution jurisprudence also fits the agency fee context because it allows courts to recognize that monetary contributions can be expressive, without automatically imposing the standard of strict scrutiny that attends to pure political speech.9 Furthermore, political contribution jurisprudence is flexible enough to recognize the political tone of some union activities, while also giving deference to the expertise of state legislatures that have weighed a host of legitimate interests in crafting their collective bargaining statutes.

While some of the most persuasive commentators and the current Court have reviewed agency fees in the public sector through a First Amendment analysis, their approach either erroneously defines the conduct of agency fee payments as pure political expression, or as contributions triggering an "exacting scrutiny" standard of review. …

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