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Collective bargaining by public sector employees has been the subject of recent heated debates in the state legislatures of Wisconsin, Michigan, Ohio, and Indiana. The right of public sector employees to freedom of association, collective bargaining, and the right to participate in politics are among the “citizenship rights” of public employees. In many states, however, the citizenship rights of public employees are under threat both in state legislatures and in the courts. Paradoxically, the ability of public sector employees to change legislation has been hampered over the years by Supreme Court decisions, making it more difficult to organize politically by limiting the Petition Clause of the First Amendment. At the same time, public employees increasingly are politically marginalized, making the role of the courts as a backstop for public employee constitutional rights even more important.

This Article first describes the animus against public sector employees and union legislative efforts to roll back collective bargaining taking place in an environment of increasing vitriol against public sector employees and efforts to contract out and privatize government services. Second, I discuss how the United States Supreme Court, in three recent rulings on the ability of public sector unions to collect dues, has made it more difficult for unions to participate in the political process. Third, I describe how these cases make reversal of the elimination of collective bargaining more difficult. Finally, I examine Borough of Duryea v. Guarnieri, a 2011 Supreme Court decision where the Court imported the “public concern” requirement from free speech analysis into the Petition Clause in the First Amendment.1 This decision also makes it more difficult than ever to overturn earlier decisions holding that the right to collective bargaining is not protected by the First Amendment, and thus to ever change the legislative rollbacks of public employee collective bargaining rights through the courts. In the end, all of these developments further exacerbate the divide between work and citizenship for public sector employees.

Nevertheless, the limited success of Wisconsin unions in federal courts overturning aspects of the elimination of collective bargaining suggests that some of the recent attacks on unions may be vulnerable to constitutional challenge. Since these actions have so far not been successful, political action becomes more important. Changing the negative attitudes toward public employees in American society is essential to returning full citizenship rights to public employees.

Publication Citation

14 Nev. L.J. 377 (2014).