Is Public Sector Collective Bargaining Identical to Lobbying for First Amendment Purposes?

Source: Max Utzschneider, On Labor blog, December 30, 2013

The Petitioners in Harris v. Quinn argue in their merits brief that Abood v. Detroit Bd. of Educ. should be overturned, essentially asking the Court to declare all public sector “agency shop” or “fair share” agreements unconstitutional. (For more background on Abood and the “fair share” agreement in Harris v. Quinn, see this explainer.)

This post analyzes one of the Petitioners’ arguments for overruling Abood: their argument that all public sector collective bargaining is lobbying, indistinguishable for First Amendment purposes from the political activity of private advocacy groups. In what follows, I argue that the Petitioners’ lobbying argument is rhetorical rather than substantive: it does not address the substantive basis for the Court’s longstanding distinction between public sector collective bargaining and lobbying but rather simply names all public sector union activity “lobbying.” The Harris v. Quinn Court’s ultimate treatment of its prior precedent should hinge on the persuasiveness of its previously articulated reasons for distinguishing lobbying and collective bargaining, not on whether public sector bargaining can abstractly be called “lobbying.”
Harris v. Quinn: One more amicus (six more states)
Labor Law Profs File Amicus in Harris v. Quinn
Harris v. Quinn: Amicus briefs by USG, fourteen states, homecare historians, and others