At Concurring Opinions, Michael Zimmer: The Supremes’ Category Mistake Plus Magical Money Thinking. An excerpt:
In Citizens United, the Court made a category mistake: Because money effects speech, money is speech. Last term the Court extended that mistake in Harris v. Quinn: Money is speech even if there is no other speech. This post will see how far this category mistake plus the Court’s magical money thinking goes.
In Harris v. Quinn, the Court struck down the “fair share” agreement provision in the Illinois law providing for union representation of home health care workers as a violation of the First Amendment. The “fair share” provision provides: “When a collective bargaining agreement is entered into with an exclusive representative, it may include in the agreement a provision requiring employees covered by the agreement who are not members of the organization to pay their proportionate share of the costs of the collective-bargaining process, contract administration and pursuing matters affecting wages, hours and conditions of employment.”
Nothing in this provision requires the non-member to do think, say or do anything vis-à-vis the union in terms of membership or participation in the organization. Indeed, the non-member could be engaged in a raucous and potentially effective campaign to get rid of the union and the union would have no basis to take action directly, or indirectly through the employer, to retaliate against someone who was a real pain in the side of the union. There is simply no connection between the non-member and the union other than that the service fee is deducted from the worker’s pay by the employer and forwarded to the union.
I'm sympathetic, though I'm skeptical any of this can be established by logical reasoning, as both Professor Zimmer and the Supreme Court seem to think (albeit with different conclusions). The originalist approach, which at least offers some hope of an objective answer, is to ask whether at the time of enactment people thought of money as speech. Whether thinking that way is a category mistake or a logical extension seems irrelevant: the rule, for an originalist, turns on how the framers viewed it, regardless of whether that was logical. With the question framed this way, the Court's more aggressive versions of money-as-speech seem, at minimum, not proven.
Posted at 6:28 AM