How­ev­er, Bain has decid­ed that she does not want to con­tribute to any of the union’s polit­i­cal activ­i­ties of her union. Bain doesn’t spec­i­fy which of the union’s expen­di­tures she specif­i­cal­ly dis­agrees with, but pre­vi­ous objec­tors to such spend­ing have cit­ed union sup­port or oppo­si­tion for polit­i­cal can­di­dates, sup­port or oppo­si­tion for bal­lot ini­tia­tives, sup­port for caus­es impor­tant to the mem­ber­ship, and the like. Though Bain can reg­is­ter as an objec­tor and get a refund of all fees not ger­mane to its rep­re­sen­ta­tion­al duties while still being cov­ered under any col­lec­tive bar­gain­ing agree­ment with the employ­er, she does not want to exer­cise that right because she knows that mem­ber­ship has benefits.

April Bain is a high school math teacher in Los Ange­les, and a dues-pay­ing mem­ber of her union, Los Ange­les Teach­ers Unit­ed. She has ben­e­fit­ed from this mem­ber­ship, and indeed claims that ​“every­body has a hor­ror sto­ry of a teacher that need­ed their union.” She describes a per­son­al expe­ri­ence of con­flict with her prin­ci­pal in which hav­ing a union behind her made her feel safe. ​“You felt safe. You kind of felt like, okay, we can do what’s right here and we’ll be pro­tect­ed,” she has stat­ed .

To object and become a non-mem­ber, Bain would sim­ply have to write to her union dur­ing an open win­dow and state her desire to quit the union. How­ev­er, if she did so, she would not receive lia­bil­i­ty insur­ance, which is a ben­e­fit of union mem­ber­ship, or have the right to vote in union elections.

There­fore, with the back­ing of edu­ca­tion reformer and for­mer Wash­ing­ton, D.C., schools chan­cel­lor Michelle Rhee’s anti-teach­ers union group Stu­dents­First, Bain and sev­er­al oth­er teach­ers have filed a fed­er­al law­suit against the Cal­i­for­nia Teach­ers Asso­ci­a­tion, the Nation­al Edu­ca­tion Asso­ci­a­tion, the Cal­i­for­nia Fed­er­a­tion of Teach­ers, the Amer­i­can Fed­er­a­tion of Teach­ers, Unit­ed Teach­ers Los Ange­les, Unit­ed Teach­ers of Rich­mond and var­i­ous school super­in­ten­dents. Through that suit, Bain seeks to accrue all the ben­e­fits of union mem­ber­ship while pay­ing a reduced dues rate and becom­ing a non-member.

Bain v. Cal­i­for­nia Teach­ers Asso­ci­a­tion is in some ways lit­tle more than a rehash of pre­vi­ous attacks on labor, but it repack­ages those attacks’ alle­ga­tions with a pro-union façade. In doing so, this case rep­re­sents the high-water mark of per­vert­ing the First Amend­ment as a tool against labor.

Anti-union groups have been argu­ing in the courts, with vary­ing degrees of suc­cess, that unions vio­late work­ers’ First Amend­ment rights by charg­ing dues. Behind this argu­ment is the idea that mon­ey is speech — a con­cept that the Roberts Court has accept­ed whole­heart­ed­ly — and the require­ment that work­ers pay union dues or fair share fees is a vio­la­tion of these work­ers’ First Amend­ment rights.

This tack has been more suc­cess­ful in recent years, exem­pli­fied by the Har­ris v. Quinn deci­sion last year that pushed home health­care work­ers into a right-to-work régime, because it fits into a prob­lem­at­ic jurispru­den­tial shift in the courts’ log­ic, where the First Amend­ment is being used to pro­tect cor­po­rate and cap­i­tal inter­ests at the expense of individuals.

At issue in Bain is not that teach­ers may choose to opt out of mem­ber­ship with their union and pay a reduced dues rate while still receiv­ing all the ben­e­fits of the con­tract. Those fair share fee cas­es, such as the sem­i­nal Beck v. Com­mu­ni­ca­tion Work­ers of Amer­i­ca, focus on the process of opt­ing out of mem­ber­ship and the types of fees that would be refund­able. At issue are those teach­ers who choose not to be mem­bers of the union and do not receive the mem­bers’ ben­e­fits from the union, such as being able to vote in union elec­tions and access to any union-spon­sored insur­ance pro­grams. Bain and oth­er teach­ers in the suit argue that it is unfair and uncon­sti­tu­tion­al for them to be denied any ben­e­fits of mem­ber­ship as a result of their deci­sion to opt out of mem­ber­ship and pay a reduced amount in union dues.

They want to be able to both opt out of mem­ber­ship in the union and a sig­nif­i­cant por­tion of union dues, but to still be able to vote for union offi­cers and direct the union (which they’ve cho­sen not to join). In oth­er words, they want the full ben­e­fits of a union with­out hav­ing to pay for them. And they are ask­ing the fed­er­al courts to inter­cede and say that the First Amend­ment guar­an­tees them that right.

“The com­plaint equates join­ing the union with ​‘giv­ing up’ First Amend­ment rights.” Seat­tle Uni­ver­si­ty School of Law pro­fes­sor Char­lotte Gar­den explained to In These Times. ​“But join­ing or not join­ing are both exer­cis­es of the right of free asso­ci­a­tion. It seems that the plain­tiffs wish their choic­es were dif­fer­ent — and that they could join the union on their own terms — but I can’t think of any oth­er cir­cum­stance in which an indi­vid­ual would attempt to bring a First Amend­ment claim to force a pri­vate asso­ci­a­tion to change its terms of membership.”

Bain is also dif­fer­ent than recent high-pro­file cas­es such as Har­ris v. Quinn and Friedrichs v. Cal­i­for­nia Teach­ers Asso­ci­a­tion, because this case only deals with the rela­tion­ship between the union and its mem­bers, and there­fore it’s not clear if the state is direct­ly involved. The First Amend­ment, and most Con­sti­tu­tion­al pro­vi­sions, only apply if the gov­ern­ment is act­ing. (As Supreme Court Jus­tice Felix Frank­furter famous­ly wrote in 1961 in dis­cussing how the dif­fer­ence between an indi­vid­ual act­ing and the state act­ing: ​“Cer­tain­ly the night-time intru­sion of the man with a star and police revolver is a dif­fer­ent phe­nom­e­non than the night-time intru­sion of a bur­glar. The aura of pow­er which a show of author­i­ty car­ries with it has been cre­at­ed by state government.”)

Though anti-union groups have suc­cess­ful­ly used the First Amend­ment against unions in the past few years in cas­es that con­cern the pre­cise amounts and pro­ce­dures that pub­lic unions can charge non-mem­bers, in those cas­es, the rela­tion­ship is between the gov­ern­ment as employ­er, the union and the mem­bers. In Bain, the only ques­tion is what ben­e­fits mem­bers and non-mem­bers receive from the union, so there is no state action that would trig­ger a con­sti­tu­tion­al claim. The First Amend­ment does not apply to such claims.

In the Friedrichs case, which is cur­rent­ly being appealed to the Supreme Court and argues that all pub­lic sec­tor employ­ees should be under right to work, a ver­sion of this claim was raised. The Friedrichs plain­tiffs argued in their appeal to the Supreme Court that ​“non­mem­bers are also affir­ma­tive­ly harmed because unions can and do use their exclu­sive bar­gain­ing sta­tus to with­hold cer­tain ben­e­fits from being pro­vid­ed by the employ­er, so that the union can offer the ben­e­fit to non­mem­bers as an induce­ment to join the union.” In oth­er words, the plain­tiff argued that unions bar­gain away non-mem­ber ben­e­fits in order to force those mem­bers to join the union.

In sup­port of this seri­ous alle­ga­tion, the plain­tiffs cite… noth­ing. In fact, in the low­er court in Friedrichs, the union made clear that ​“they have nev­er adopt­ed as a mem­bers-only ben­e­fit they believed could fea­si­bly be obtained from the employer.”

For exam­ple, school dis­tricts choose not to offer dis­abil­i­ty and lia­bil­i­ty insur­ance to teach­ers because doing so is cost­ly. Rec­og­niz­ing the desire for this insur­ance cov­er­age among its mem­ber­ship, the unions offer it as a ben­e­fit to mem­bers. Cas­es like Friedrichs and Bain are try­ing to por­tray the ben­e­fits unions pro­vide to their mem­bers as a nefar­i­ous scheme to harm non-members.

Hav­ing nev­er nego­ti­at­ed a labor con­tract or won a union elec­tion, groups like Stu­dents­First and the Cen­ter for Indi­vid­ual Rights (the lat­ter of which is bankrolling Friedrichs) are argu­ing that the unions should change their con­tract nego­ti­a­tion strate­gies in order to force employ­ers to con­cede ben­e­fits that the union can eas­i­ly offer. This tack fits into a larg­er strat­e­gy by such groups to erase any ben­e­fit of union mem­ber­ship and incen­tivize work­ers into pay­ing less or noth­ing at all for the ben­e­fits of union mem­ber­ship. In Har­ris, Friedrichs, and Bain, the com­mon strand of the attacks on unions is to force unions to offer all ben­e­fits of mem­ber­ship and cov­er­age by a col­lec­tive bar­gain­ing agree­ment for free.

It is a strange irony of this case that the plain­tiffs read­i­ly admit the myr­i­ad ben­e­fits that come with union mem­ber­ship, but argue that it is unfair to require them to be mem­bers of the union to get those ben­e­fits. Bain and Stu­dents­First have decid­ed that the First Amend­ment gives them the right to make mem­ber­ship mean what­ev­er they choose it to mean.

Bain and the oth­er plain­tiffs in her suit obvi­ous­ly have a dif­fer­ence of opin­ion on what ben­e­fits their unions should offer their mem­bers and on what issues these unions should focus. As cur­rent mem­bers of their unions, they could vote and sup­port offi­cers who agree with them or run for union office them­selves. But that would require them to take part in the demo­c­ra­t­ic process — and prob­a­bly have to face the real­i­ty of how unpop­u­lar their views are with­in the union. So instead they have decid­ed to enlist the help of an anti-union group to try to force their beliefs on every­one else.

For that rea­son, this case should be seen for what it is: lit­i­ga­tion fund­ed and pro­mot­ed by anti-union groups that is part of a gen­er­al strat­e­gy to defund unions, destroy sol­i­dar­i­ty and erase the ben­e­fits of union mem­ber­ship — even while bizarrely admit­ting that union mem­ber­ship does, in fact, bring work­ers like Bain strong benefits.