Amicus Curiae Brief — Friedrichs v. Cal. Teachers Ass'n, 135 S. Ct. 2933 (2015) (No. 14-915)

US.

FILED

NOV 13 2015

No. 14-915 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

REBECCA FRIEDRICHS, ET AL.,

Petitioners,

We

CALIFORNIA TEACHERS ASSOCIATION, ET AL..,

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit

BRIEF OF REPUBLICAN CURRENT AND

FORMER MEMBERS OF STATE

LEGISLATURES AND CONGRESS AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

ELIZABETH B. WYDRA*

BRIANNE J. GOROD

DAVID H. GANS

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

elizabeth@theusconstitution.org

Counsel for Amici Curiae

November 13, 2015 * Counsel of Record

ETE ETT LT EE ST TT TITTIES

WiLsOn-EPes PRINTING Co., INC. — (202) 789-0096 — WasHINGTON, D.C. 20002

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................cccceeseseeeeeees

INTEREST OF AMICI CURIAE..................c0000++:

INTRODUCTION AND SUMMARY OF AR-

I.

II.

ITT.

THE FIRST AMENDMENT DOES NOT

DEPRIVE STATES OF THE POWER TO

ENACT AGENCY-SHOP LAWS REQUIR-

ING GOVERNMENT EMPLOYEES TO

PAY THEIR FAIR SHARE OF THE

COSTS OF COLLECTIVE BARGAINING.

THIS COURT HAS LONG RECOGNIZED

THE IMPORTANT ROLE THAT FEDER-

ALISM PLAYS IN OUR CONSTITU-

TIONAL STRUCTURE. ............:ccccssseeeeeeeeees

CONSISTENT WITH FEDERALISM

PRINCIPLES, STATES SHOULD BE

ABLE TO DETERMINE FOR THEM-

SELVES WHETHER TO ADOPT AGEN-

CY FEE ARRANGEMEN TB. .................00006+

GP IEIEEEIED scnccsccccssecensengeseccnsevenevecsssecsecessseseces

(i)

12

16

iz

TABLE OF AUTHORITIES

Page(s)

Cases

Abood v. Detroit Bd. of Educ.,

Ge Cee Ie Oi rctettcenneccntnescccssnsesscess passim

Bond v. United States,

5 S&T 13

Borough of Duryea, Pa. v. Guarnieri,

. ff. ee 7,10

Brown v. Brown,

No. 6:15-cv-01523 (D. Or. complaint filed

iia nlek acbisdcemennenies 22

Brown v. Glines,

, - « | ce 9

Connick v. Myers,

Eran 11

Engquist v. Or. Dep’t of Agric.,

a eae 4, 7,10

Ex parte Curtis,

a cecnenlchneeinaininniads 8

Garcetti v. Ceballos,

ee ee He cctescccnssnnssenceennsenntonens 7,9, 10

Gregory v. Ashcroft,

A ETEe 5, 12, 16

Harris v. Quinn,

RB 11, 20, 22

Lehnert v. Ferris Faculty Ass’n,

0 8 11

TABLE OF AUTHORITIES - cont’d.

Page(s)

Lincoln Fed. Labor Union No. 19129 v. Nw.

Iron & Metal Co.,

en 18

Mentele v. Inslee,

No. 3:15-cv-05134 (W.D. Wash. complaint

a 22

New State Ice Co. v. Liebmann,

EE 5, 16

U.S. Civil Serv. Comm'n v. Nat Ass'n. of

Letter Carriers,

EE a )

United Pub. Workers v. Mitchell,

EERIE a 9

Rutan v. Republican Party of Iil.,

EEE 7

Texas v. White,

cea 12, 13

Waters v. Churchill,

aR 7, 8,10

Winner v. Rauner,

No. 1:15-cv-07213 (N.D. Ill. complaint

I SE ITI i iedinrcenigtinisitensertniieenens 22

iv

TABLE OF AUTHORITIES - cont'd.

Page(s)

Cal. Gov't Code § 3543 .................cccccssscsceseees 2

Cal. Gov't Code § 3544 220.0... ececeeeeeeeees 3

Cal. Gov't Code § 3546 ................ccccccccssessceees 3

Se NT dik iiintlicenidaiitaitiinhabtinemintniinnmion 12

2 The Records of the Federal Convention of

1787 (Max Farrand ed., 1911)................... 14

Charles Fried, Federalism—Why Should

We Care?, 6 Harv. J.L. & Pub. Poly 1

TRESS Ae eee ee eR 15

Deborah Jones Merritt, The Guarantee

Clause and State Autonomy: Federalism

for a Third Century, 88 Colum. L. Rev. 1

lait liana hacen ctai aise 14, 15

Henry H. Drummonds, The Sister Sover-

eign States: Preemption and the Second

Twentieth Century Revolution in the Law

of the American Workplace, 62 Fordham

. < — ease seen 16, 17, 20

Henry J. Friendly, Federalism: A Fore-

word, 86 Yale L.J. 1019 (1977).................- 15

James Madison, Report on the Virginia

Resolution (1800), in 4 The Debates in the

Several State Conventions on the Adop-

tion of the Federal Constitution 546 (Jon-

athan Elliot ed., 1896)......................ccc.cc.00- 8

Vv

TABLE OF AUTHORITIES - cont'd.

Page(s)

Joseph E. Slater, The Court Does Not Know

‘What a Labor Union Is’: How State

Structures and Judicial

(Mis)constructions Deformed Public Sec-

tor Labor Law, 79 Or. L. Rev. 981 (2000). 17

Michael W. McConnell, Federalism: Evalu-

ating the Founders’ Design, 54 U. Chi. L.

Sn as 4, 13, 14, 15

Richard C. Kearney & Patrice M.

Mareschal, Labor Relations in the Public

Sector (6th ed. 2014) ...................ecss00. 17, 20, 21

The Federalist No. 3? (John Jay) (Clinton

By MI iccecitnncncnrnsnicisetnsnsneninsenn 14

The Federalist No. 10 (James Madison)

(Clinton Rossiter ed., 1961) ....................... 4,15

1

INTEREST OF AMICI CURIAE'

Amici are 47 Republican current and former state

legislators and one Republican former member of

Congress. Amici are familiar with the statutory

schemes governing labor relations and collective bar-

gaining in their respective States, and they appreci-

ate the significant role that States have long played

in determining the content of their own labor laws.

They are also familiar with the many reasons why

decisions about the substance of those laws are best

made at the state level, by individuals who are famil-

iar with the unique needs and interests of each State.

Amici believe that nothing in the Constitution

prohibits the agency fee arrangements at issue in this

case and that whether these arrangements are good

policy is a decision that belongs to the relevant state

and local governments. It is also a decision on which

jurisdictions can and do differ. After all, no one ar-

rangement will make sense for every State in the

country, and state officials will be best able to weigh

the potentially competing interests of public employ-

ers, public employees, unions, and the public to de-

termine what makes the most sense for their State.

State officials have a particularly strong interest in

making these determinations because they are held

democratically accountable for providing effective and

1 The parties have consented to the filing of this brief and

their letters of consent have been filed with the Clerk. Under

Rule 37.6 of the Rules of this Court, amici state that no counsel

for a party authored this brief in whole or in part, and no coun-

sel or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

amici or their counsel made a monetary contribution to its prep-

aration or submission.

2

efficient state government services through the work

of public employees.

Some amici state legislators come from States

that allow for agency fees like those at issue in this

case. These amici have a particularly strong interest

in representing their constituents and the many oth-

er governmental leaders in their States who have de-

termined that these agency fee arrangements make

sense for their States and help ensure ordered labor

relations that benefit employers, employees, and the

public. Moreover, amici have a strong interest in

avoiding the significant disruption to carefully cali-

brated labor schemes that would result in the nearly

half of States that permit agency fees if this Court

were to conclude that these agency fee arrangements

are no longer valid.

More generally, amici state legislators have a

strong interest in ensuring that this Court respects

the federalism values embedded in our Constitution

and long recognized by this Court’s opinions. Alt-

hough amici take no position on the legal question

whether Congress could legislate in this area if it so

chose, they believe that Congress’s decision to allow

States to structure public sector labor relations as

they see fit reflects federalism principles that are

fundamental to our constitutional structure.

A full listing of amici appears in the Appendix.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Under California law, if a majority of the employ-

ees in a bargaining unit choose to be represented by a

union, that union will serve as the exclusive bargain-

ing representative for all employees in the unit, even

those who choose not to join the union. Cal. Gov't

3

Code §§ 3543, 3544, 3546. Like many other States,

California allows public sector unions acting as exclu-

sive bargaining representatives to charge non-

member state employees an agency fee, provided that

such employees “have the right . . . to receive a rebate

or fee reduction upon request, of that portion of their

fee that is not devoted to the cost of negotiations, con-

tract administration, and other activities of the em-

ployee organization that are germane to its function

as the exclusive bargaining representative.” Id.

§ 3546(a).

This Court explicitly upheld States’ authority to

adopt statutory schemes such as this one nearly forty

years ago in Abood v. Detroit Board of Education, 431

U.S. 209 (1977). In that case, this Court recognized

that “[t]he National Labor Relations Act leaves regu-

lation of the labor relations of state and local gov-

ernments to the States.” Id. at 223. Recognizing that

its “province [was] not to judge the wisdom of Michi-

gan’s decision to authorize the agency shop in public

employment,” the Court concluded that “important

government interests” justified the “impingement up-

on associational freedom created by the agency shop

[arrangement].” Id. at 224-25.

Despite this long-standing precedent, Petitioners

argue that the question whether non-member gov-

ernmental employees must pay agency fees—a ques-

tion that Abood left to each individual State to de-

termine for itself—may no longer be left to the States

because the First Amendment compels one uniform

answer for the entire country. This is plainly wrong.

Petitioners’ attempt to constitutionalize this aspect of

labor relations is not required by the First Amend-

ment, as Respondents’ brief demonstrates, see

Resp’ts’ Br. at 15-31, and is inconsistent with the sig-

nificant deference long accorded state determinations

4

about how labor relations in public sector employ-

ment should be ordered. Even when regulating

speech and association protected by the First

Amendment, “government has significantly greater

leeway in its dealings with citizen employees than it

does when it brings its sovereign power to bear on cit-

izens at large,” Engquist v. Or. Dep't of Agric., 553

U.S. 591, 599 (2008), allowing state governments

broad authority to manage their workforces effective-

ly and efficiently. Amici state legislators understand

well the significant policy judgments inherent in de-

termining how States establish the law governing la-

bor relations in public sector employment, and they

appreciate the value of allowing individual States to

determine for themselves whether agency shop ar-

rangements make sense given the various competing

interests at play in their States.

When the Framers drafted our enduring Consti-

tution, integral to their design was a vibrant federal-

ist system that empowered the federal government to

provide national solutions to national problems, while

preserving a significant role for State and local gov-

ernments to exercise general police power and craft

policies “adapted to local conditions and local tastes.”

Michael W. McConnell, Federalism: Evaluating the

Founders’ Design, 54 U. Chi. L. Rev. 1484, 1493

(1987). As James Madison described it, the federalist

system would “form{] a happy combination” with “the

great and aggregate interests being referred to the

national, the local and particular to the State legisla-

tures.” The Federalist No. 10, at 77 (James Madison)

(Clinton Rossiter ed., 1961).

Because federalism permits decentralized deci-

sionmaking in contexts where no other constitutional

provision limits state action, there are many areas in

which State and local policymakers can adopt policies

5

best suited to their local needs. There are also many

contexts in which the States can serve as “labora-

torfies]” of “experimentation,” as Justice Brandeis

famously put it. New State Ice Co. v. Liebmann, 285

U.S. 262, 311 (1932) (Brandeis, J., dissenting). This

Court has long recognized these benefits of federal-

ism, observing that federalism both “assures a decen-

tralized government that will be more sensitive to the

diverse needs of a heterogeneous society” and allows

for “more innovation and experimentation in govern-

ment.” Gregory v. Ashcroft, 501 U.S. 452, 457, 458

(1991).

Consistent with our federalist structure and its

commitment to allowing States to govern in areas

where uniform national! legislation is not necessary,

key aspects of labor policy have long been left to the

States. Indeed, as noted above, Abood itself recog-

nized that the Court's role was not to assess the wis-

dom of Michigan’s judgment that agency fee ar-

rangements would best preserve ordered labor rela-

tions in that State, but simply to determine whether

there was any specific constitutional bar to Michi-

gan’s decision. Concluding that there was not, the

Court deferred to the judgment of Michigan state offi-

cials about how best to structure labor relations in

that state.

Amici state legislators are responsible for deter-

mining the proper labor regimes in their respective

States, and they thus appreciate the flexibility and

discretion provided by this Court’s decision in Abood.

Indeed, as amici well understand, and as this Court

recognized in Abood, “[t]he ingredients of industrial

peace and stabilized labor-management relations are

numerous and complex.” 431 U.S. at 225 n.20 (quot-

ing Ry. Emps.’ Dep't v. Hanson, 351 U.S. 225, 234

(1956)). Based on their experiences serving in their

6

state legislatures, amici state legislators know that

they and their colleagues in state government are

best positioned to determine what regime will work

best in their States. Moreover, amici state legislators

who serve in the legislatures of States that have

adopted agency fee arrangements like those adopted

by California also know that a decision invalidating

those arrangements would cause significant disrup-

tion in their States.

In sum, this Court recognized in Abood that the

First Amendment does not require one uniform rule

of labor relations for the entire country. Rather, def-

erence should be given to the judgments of state poli-

cymakers about what rules would be best for their

States. This Court should re-affirm that decision

now.

ARGUMENT

I. THE FIRST AMENDMENT DOES NOT DE-

PRIVE STATES OF THE POWER TO EN-

ACT AGENCY-SHOP LAWS REQUIRING

GOVERNMENT EMPLOYEES TO PAY

THEIR FAIR SHARE OF THE COSTS OF

COLLECTIVE BARGAINING.

Urging this Court to overrule Abood and to strike

down the laws of California and 23 other States,

Friedrichs insists that the First Amendment prohib-

its a state from enacting an agency-shop law that re-

quires non-member state employees to pay their fair

share of the costs of collective bargaining. In Frie-

drichs’s view, bargaining over the wages and hours of

government employees is political speech, and there-

fore agency-shop laws must be subject to the strictest

judicial scrutiny. See Pet’rs’ Br. at 16-20. Neither

constitutional first principles nor this Court’s case

7

law supports this sweeping reinterpretation of the

First Amendment.

The First Amendment's guarantee of freedom of

speech, as construed in numerous decisions of this

Court, gives considerable leeway to States to regulate

their workforces to ensure that government runs ef-

fectively and efficiently. This Court has refused to

apply the strictest standard of judicial scrutiny—a

standard that often applies when the government di-

rectly regulates the speech of its citizenry—in favor of

a lower level of scrutiny, because of the “unique con-

siderations applicable when the government acts as

employer as opposed to sovereign.” Engquist, 553

U.S. at 598; Waters v. Churchill, 511 U.S. 661, 672-75

(1994); Rutan v. Republican Party of Ill., 497 U.S. 62,

99-100 (1990) (Scalia, J., dissenting) (“[Gjovernment

employment decisions taken on the basis of an em-

ployee’s speech do not ‘abridgfe] the freedom of

speech’ merely because they fail the narrow-tailoring

and compelling-interests tests applicable to direct

regulation of speech.” (internal citation omitted)).

By choosing to apply this lower level of scrutiny,

the Court has ensured that the First Amendment's

protection of speech is not so broadly construed that

it intrudes into state managerial prerogatives in a

manner “inconsistent with sound principles of feder-

alism and separation of powers.” Garcetti v. Ceballos,

547 U.S. 410, 423 (2006); see also Borough of Duryea,

Pa. v. Guarnieri, 131 S. Ct. 2488, 2496 (2011) (reject-

ing interpretation of the Petition Clause that would

“subject a wide range of government operations to in-

vasive judicial superintendence” and “raise serious

federalism and _ separation-of-powers concerns”).

Friedrichs’s argument, which relies heavily on many

cases concerning direct regulation of speech by the

8

government as sovereign, cannot be squared with

these principles. See Petr’s’ Br. at 16-18.

As this Court’s case law makes clear, “even many

of the most fundamental maxims of our First

Amendment jurisprudence cannot reasonably be ap-

plied to speech by government employees.” Waters,

511 U.S. at 672. For example, the First Amendment,

at its core, protects the “right of freely examining

public characters and measures, and of free commu-

nication among the people thereon,” see James Madi-

son, Report on the Virginia Resolution (1800), in 4

The Debates in the Several State Conventions on the

Adoption of the Federal Constitution 546, 554 (Jona-

than Elliot ed., 1836), reflecting that “the censorial

power is in the people over the Government, and not

in the Government over the people.” 4 Annals of

Congress 934 (1794). Nevertheless, this Court has

long recognized that “[e]ven something as close to the

core of the First Amendment as participation in polit-

ical campaigns may be prohibited to government em-

ployees.” Waters, 511 U.S. at 672.

For example, in Ex parte Curtis, 106 U.S. 371

(1882), this Court upheld a federal criminal statute

that prohibited federal employees from giving or re-

ceiving political contributions from other federal

workers. The Court concluded that the statute was

consistent with the First Amendment because it

served “to promote efficiency and integrity in the dis-

charge of official duties, and to maintain proper dis-

cipline in the public service,” id. at 373, and it reject-

ed the dissent’s argument that the statute unconsti-

tutionally “prevents the citizen from co-operating

with other citizens of his own choice in the promotion

of his political views.” Id. at 376 (Bradley, J., dissent-

ing).

9

In 1947, in United Public Workers v. Mitchell, 330

U.S. 75 (1947), this Court upheld the constitutionali-

ty of the Hatch Act’s prohibition on government em-

ployees participating actively in political manage-

ment or political campaigns, reasoning that Con-

gress’s “conviction that an actively partisan govern-

mental personnel threatens good administration” jus-

tified the statute’s limitation on core First Amend-

ment freedoms. Id. at 97-98; see also id. at 99 (“Con-

gress and the President are responsible for an effi-

cient public service. If, in their judgment, efficiency

may be best obtained by prohibiting active participa-

tion by classified employees in politics as party offic-

ers or workers, we see no constitutional objection.”);

U.S. Civil Serv. Comm'n v. Nat Ass’n. of Letter Car-

riers, 413 U.S. 548 (1973) (reaffirming Mitchell). In

reaffirming Mitchell, this Court, once again, deferred

to the considered legislative judgment of Congress,

observing that “[p]erhaps Congress at some time will

come to a different view of the realities of political life

and Government service; but that is its current view

of the matter, and we are not now in any position to

dispute it.” Id. at 567.

While the government may not “leverage the em-

ployment relationship to restrict . . . the liberties em-

ployees enjoy in their capacities as private citizens,”

Garcetti, 547 U.S. at 419, this Court’s case law estab-

lishes that “a governmental employer may subject its

employees to such special restrictions on free expres-

sion as are reasonably necessary to promote effective

government.” Brown v. Glines, 444 U.S. 348, 356

n.13 (1980).

Court precedent is clear that “constitutional re-

view of government employment decisions must rest

on different principles than review of speech re-

straints imposed by the government as sovereign.”

10

Waters, 511 U.S. at 674. Thus, rather than applying

strict scrutiny, this Court has held that First

Amendment rights “must be balanced against the re-

alities of the employment context,” Engquist, 553

U.S. at 600, giving “substantial weight to government

employers’ reasonable predictions of disruption, even

when the speech involved is on a matter of public

concern, and even though when the government is

acting as sovereign our review of legislative predic-

tions of harm is considerably less deferential.” Wa-

ters, 511 U.S. at 673; see also Garcetti, 547 U.S. at

422 (noting “the emphasis of our precedents on af-

fording government employers sufficient discretion to

manage their operations”); Guarnieri, 131 S. Ct. at

2495 (noting the “substantial government interests

that justify a cautious and restrained approach to the

protection of speech by public employees”).

Consistent with these basic principles, this Court

held in Abood that agency-shop laws that require

government employees to pay their fair share of the

costs of collective bargaining do not violate the First

Amendment’s guarantee of freedom of speech, up-

holding Michigan’s judgment that “labor stability will

be served by a system of exclusive representation and

the permissive use of an agency shop in public em-

ployment.” Aboad, 431 U.S. at 229. Drawing on

Congress's judgment reflected in the Railway Labor

Act of 1926 and the National Labor Relations Act of

1935, Abood concluded that a state could constitu-

tionally conclude that a union-shop arrangement pro-

vides an efficient and effective way to run its work-

place and secure labor peace, one that balances the

competing interests of all its employees. As Abood

explained, such an arrangement “has been thought to

distribute fairly the cost of [collective bargaining] ac-

tivities among those who benefit, and it counteracts

11

the incentive that employees might otherwise have to

become ‘free riders’ to refuse to contribute to the un-

ion while obtaining benefits of union representation

that necessarily accrue to all employees.” Id. at 222;

see also Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507,

556 (1991) (Scalia, J., concurring in part and dissent-

ing in part) (‘Where the state imposes upon the union

a duty to deliver services, it may permit the union to

demand reimbursement for them; or, looked at from

the other end, where the state creates in the non-

members a legal entitlement from the union, it may

compel them to pay the cost.”).

Contrary to Friedrichs’s claim, Abood is no outli-

er, but simply reflects basic well-recognized First

Amendment principles—applicable to government

regulation of its own employees—that give the gov-

ernment “wide discretion and control over the man-

agement of its personnel and internal affairs.” Con-

nick v. Myers, 461 U.S. 138, 151 (1983) (quoting

Arnett v. Kennedy, 416 U.S. 134, 168 (1974) (Powell,

J., concurring)); cf. Harris v. Quinn, 134 S. Ct. 2618,

2642 (2014) (refusing to defer to managerial judg-

ment where “the State is not acting in a traditional

employer role”). Friedrichs’s claim that public-sector

collective bargaining is inherently political does not

change the basic constitutional calculus. Indeed,

Abood properly recognized that “decisionmaking by a

public employer is above all a political process,” but

properly held that, given the weight of the govern-

ment interests at stake, “[njothing in the First

Amendment . . . makes the question whether the ad-

jective ‘political’ can properly be attached to [non-

members’ beliefs the critical constitutional inquiry.”

Abood, 431 U.S. at 228, 232. Abood also properly rec-

ognized that States have broad leeway to choose how

to run their workplaces to preserve labor peace and

12

ensure the efficient delivery of services. The First

Amendment does not take from the States the power

to choose the means most conducive to these im-

portant ends.

As the next section demonstrates, Abood is also

consistent with first principles of federalism insofar

as it allows States to determine what legal regime

will enable them to manage their workforces most ef-

fectively.

Il. THIS COURT HAS LONG RECOGNIZED

THE IMPORTANT ROLE THAT FEDERAL-

ISM PLAYS IN OUR CONSTITUTIONAL

STRUCTURE.

Article I of the Constitution confers on Congress

“fajll legislative Powers” and enumerates the specific

powers encompassed by that phrase. U.S. Const. art.

I. That provision, taken with the Tenth Amendment,

establishes a carefully crafted balance of federal-state

power. On the one hand, the federal government en-

joys substantial authority to act in contexts where

national action is necessary. On the other hand,

there are some contexts in which the States may craft

innovative policy solutions reflecting the diversity of

America’s people, places, and ideas, so long as those

state policies are otherwise consistent with the Con-

stitution. Cf., supra, Section I (agency-shop arrange-

ments do not violate the First Amendment).

This Court has long recognized this “fundamental

principle” that “our Constitution establishes a system

of dual sovereignty between the States and the Fed-

eral Government.” Gregory, 501 U.S. at 457. As this

Court explained over a century ago, “the people of

each State compose a State, having its own govern-

ment, and endowed with all the functions essential to

separate and independent existence.” Texas v. White,

13

74 U.S. 700, 725 (1868), overruled in part by Morgan

v. United States, 113 U.S. 476 (1885); see id. at 726

(“the preservation of the States, and the maintenance

of their governments, are as much within the design

and care of the Constitution as the preservation of

the Union and the maintenance of the National gov-

ernment”); Bond v. United States, 131 S. Ct. 2355,

2364 (2011) (“State sovereignty is not just an end in

itself: “Rather, federalism secures to citizens the lib-

erties that derive from the diffusion of sovereign

power.”” (quoting New York v. United States, 505

U.S. 144, 181 (1992))).

When the Framers drafted our enduring Consti-

tution, this federalist system was an integral part of

their design. See McConnell, supra, at 1492

(“[d]uring the debates over the drafting and ratifica-

tion of the Constitution, supporters and opponents

alike came to articulate complex and sophisticated

theories of federalism”). As one scholar explains:

The federal system resulted from a com-

promise between those who saw the need

for a strong central government and those

who were wedded to the independent sov-

ereignty of the states. It was unthinkable

to most eighteenth century citizens that

the Constitution should abolish state gov-

ernments. At the same time, the difficul-

ties experienced under the Articles of

Confederation demonstrated the need for

a strong central power. Given these con-

straints, the Framers of the Constitution

pursued the practical course: a federal

system that would maintain independent

state governments while giving the new

central government supreme authority in

certain designated areas.

14

Deborah Jones Merritt, The Guarantee Clause and

State Autonomy: Federalism for a Third Century, 88

Colum. L. Rev. 1, 3 (1988).

Indeed, although the Framers’ experiences under

the Articles of Confederation convinced them that the

national government must be given significantly

greater powers than it possessed under the Articles of

Confederation government, see, e.g., The Federalist

No. 3, supra, at 36 (John Jay) (noting agreement on

“the importance of . . . continuing firmly united under

one federal government, vested with sufficient powers

for all general and national purposes”); cf. 2 The Rec-

ords of the Federal Convention of 1787, at 132 (Max

Farrand ed., 1911), they also recognized that a sys-

tem of dual sovereignty could produce a number of

benefits. Merritt, supra, at 3 (noting that “eighteenth

century thinkers perceived several advantages in

their federalist compromise”); see McConnell, supra,

at 1492 (articulating “three complementary objec-

tives” that the Framers thought “the new system of

dual sovereignty would promote”).

For example, the Framers recognized that in

some contexts, it is better that States be able to adopt

policies that are best suited to the specific needs and

interests of their people. As former Judge Michael

McConnell has written, “decentralized decision mak-

ing is better able to reflect the diversity of interests

and preferences of individuals in different parts of

the nation.” Jd. at 1493; see Merritt, supra, at 8 (ob-

serving that one “advantage of independent state

governments stems from the political and cultural di-

versity they provide” because “[a]cting through their

state and local governments, citizens in each region

create the type of social and political climate they

prefer”).

Moreover, when States are allowed to adopt dif-

15

ferent policies, they can serve as valuable testing

grounds by which the country can see how effective

those different policies are. McConnell, supra, at

1493 (“decentralization allows for innovation and

competition in government”); Merritt, supra, at 9

(noting that state governments have repeatedly “pio-

neer[ed] new social and economic programs”); Charles

Fried, Federalism—Why Should We Care?, 6 Harv.

J.L. & Pub. Pol’y 1, 2 (1982) (noting that one “value”

of federalism which is “quite important” is the “con-

cept of the states as ‘laboratories for experiment”);

Henry J. Friendly, Federalism: A Foreword, 86 Yale

L.J. 1019, 1033-34 (1977) (‘Although some state gov-

ernments may be ignorant or venal, many are far-

seeing and courageous; and not all wisdom reposes in

Washington.”).

Related, a federalist system also ensures that in

the context of those questions that do not require one

uniform policy for the nation, policies can be made by

those officials who are best acquainted with the

unique needs and interests of their constituents. As

James Madison wrote in Federalist No. 10, there are

dangers inherent in both large and small republics: in

the former, “the representative[s] [are] too little ac-

quainted with . . . local circumstances and lesser in-

terests,” while in the latter, representatives may be

unable to “pursue great and national objects.” The

Federalist No. 10, supra, at 77 (James Madison). A

federal system, he wrote, “form[ed] a happy combina-

tion in this respect; . . . the great and aggregate in-

terests being referred to the national, the local and

particular[,] to the State legislatures.” Jd. at 77-78;

Merritt, supra, at 9.

This Court has repeatedly recognized the benefits

offered by our federalist system of government. In

Gregory, for example, this Court observed that “[t]his

16

federalist structure of joint sovereigns preserves to

the people numerous advantages. It assures a decen-

tralized government that will be more sensitive to the

diverse needs of a heterogeneous society; it increases

opportunity for citizen involvement in democratic

processes; [and] it allows for more innovation and ex-

perimentation in government.” Gregory, 501 U.S. at

458; see New State Ice Co., 285 U.S. at 311 (Brandeis,

J., dissenting) (“There must be power in the states

and the nation to remould, through experimentation,

our economic practices and institutions to meet

changing social and economic needs. . . . It is one of

the happy incidents of the federal system that a sin-

gle courageous state may, if its citizens choose, serve

as a laboratory; and try novel social and economic ex-

periments without risk to the rest of the country.”).

In short, our constitutional system recognizes

that there are some contexts in which States may

usefully serve as laboratories for experimentation

and in which policy is best made at the State level.

Amici believe that the question whether non-member

employees may be required to pay agency fees is one

such policy, as the next Section discusses.

III. CONSISTENT WITH FEDERALISM PRIN-

CIPLES, STATES SHOULD BE ABLE TO

DETERMINE FOR THEMSELVES WHETH-

ER TO ADOPT AGENCY FEE ARRANGE-

MENTS.

Consistent with our federalist structure and its

commitment to allowing States to govern in areas

where uniform national legislation is not necessary,

key aspects of labor law have long been left to the

States. See, e.g., Henry H. Drummonds, The Sister

Sovereign States: Preemption and the Second Twenti-

eth Century Revolution in the Law of the American

Workplace, 62 Fordham L. Rev. 469, 585 (1993) (not-

17

ing the “wide-ranging role still given to the states in

our federal labor reiations scheme”); id. at 584 (“the

states already retain an important role in many as-

pects of labor relations under current law. . . . [includ-

ing] whether membership or financial support of a

union bargaining agent may be compelled”); Richard

C. Kearney & Patrice M. Mareschal, Labor Relations

in the Public Sector 30 (5th ed. 2014) (noting “the

complex legal environment” in public sector unionism

because there is “one set of laws for federal workers

and 50 sets for the states, plus numerous executive

orders, local ordinances, legal rulings, provisions, and

practices”); Drummonds, supra, at 585 (“most aspects

of employment law outside the labor relations context

remain subject to state regulation”).

The National Labor Relations Act, for example,

“leaves regulation of the labor relations of state and

local governments to the States.” Abood, 431 U.S. at

223; Drummonds, supra, at 584 (“NLRA leaves an is-

sue basic to any regime of collective labor relations to

state control.”). While the law’s legislative history

provides no explanation for this decision, one theory

is that the law’s drafters believed that Congress

“lacked the authority to regulate the labor relations

of states and localities.” Joseph E. Slater, The Court

Does Not Know ‘What a Labor Union Is’: How State

Structures and Judicial (Mis)constructions Deformed

Public Sector Labor Law, 79 Or. L. Rev. 981, 1025

(2000); see id. at 1026 (“Through to the present day,

courts have resisted Congressional attempts to apply

federal employment laws to state and local govern-

ments.”).

Whether or not Congress has the legal authority

to enact legislation that would govern public sector

labor relations in the States (and amici take no posi-

tion on that question), the fact that it has not done so

18

reflects the deference customarily accorded state

judgments in this context and is consistent with the

values inherent in our federalist system. This Court

has long recognized the deference that should be ac-

corded state judgments about how to structure labor

relations in their States. See, e.g., Lincoln Fed. Labor

Union No. 19129 v. Nw. Iron & Metal Co., 335 U.S.

525, 536 (1949) (“states have power to legislate

against what are found to be injurious practices in

their internal commercial and business affairs, so

long as their laws do not run afoul of some specific

federal constitutional prohibition, or of some valid

federal law”). Indeed, that principle was an im-

portant one in Abood itself.

The Court began its analysis in Abood by examin-

ing two of its prior cases that addressed the constitu-

tionality of agency shop arrangements in the private

sector and then explained the relevance of those deci-

sions to its consideration of Michigan’s statute. Rec-

ognizing that it had previously held that Congress’s

“legislative assessment of the important contribution

of the union shop to the system of labor relations es-

tablished by Congress” “constitutionally justified” the

attendant interference with First Amendment inter-

ests, Abood, 431 U.S. at 222, the Court held in Abood

that Michigan’s legislative judgment was entitled to

the same respect as Congress’s. As the Court ex-

plained, “[t]he governmental interests advanced by

the agency-shop provision in the Michigan statute are

much the same as those promoted by similar provi-

sions in federal labor law.” Id. at 224. Given that the

“same important government interests recognized [in

the private sector cases]” underpin Michigan’s policy

decision, those interests “presumptively support the

impingement upon associational freedom created by

the agency shop here at issue.” Id. at 225.

19

In deciding Abood, this Court recognized that its

“province is not to judge the wisdom of Michigan’s de-

cision to authorize the agency shop in public employ-

ment.” Id. at 224-25. Rather, the Court made clear

that it should defer to Michigan’s judgment about

what would best preserve “labor stability” in that

State. Id. at 229. “[T]here can be no principled ba-

sis,” the Court concluded, “for according [Michigan’s]

decision less weight in the constitutional balance

than was given in [the private sector cases] to the

congressional judgment.” Jd. Thus, Abood stands for

the fundamental proposition that the Court should

defer to state judgments on this complicated policy

question, at least as much as it stands for the specific

balancing of state and First Amendment interests at

issue in that case.

In reliance on Abood, States have adopted differ-

ent approaches to regulating labor relations in their

States. Amici state legislators, who are responsible

for determining the proper labor regime in their re-

spective States, appreciate the flexibility and discre-

tion this gives States to adopt a framework that will

work best for them. As this Court recognized in

Abood, “[t]he ingredients of industrial peace and sta-

bilized labor-management relations are numerous

and complex. They may well vary from age to age

and from industry to industry. . . . The decision rests

with the policy makers, not with the judiciary.” Jd. at

225 n.20 (quoting Hanson, 351 U.S. at 234).

Tellingly, parts of Petitioners’ brief read more

like a policy argument against unions and collective

bargaining than like a legal analysis. See, e.g., Pet’rs’

Br. at 36 (arguing that “[e]xclusive representation

‘extinguishes the individual employee’s power to or-

der his own relations with his employer” (quoting

NLBB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180

20

(1967))); id. at 35 (“Respondent Unions advocate nu-

merous policies that affirmatively harm teachers who

believe they are above-average.”). These arguments

(on which amici have no view) simply underscore the

extent to which there are policy judgments at play in

this case. See Harris, 134 S. Ct. at 2658 (Kagan, J.,

dissenting) (“For many decades, Americans have de-

bated the pros and cons of right-to-work laws and

fair-share requirements. All across the country and

continuing to the present day, citizens have engaged

in passionate argument about the issue and have

made disparate policy choices.”). Those policy judg-

ments are best made by state officials who are know!l-

edgeable about the history of labor relations in their

State and who have the richest understanding of the

complicated interests of employers and employees

alike.

As amici state legislators know well from their

experience serving in state legislatures and talking to

legislators from other States, what makes sense for

one State may not make sense for another State, giv-

en the competing interests at play. See, e.g., Kearney

& Mareschal, supra, at 64 (noting that “[a] variety of

important issues [related to collective bargaining]

had to be faced by the state lawmakers,” and

“[ljegislative outcomes were hammered out in fierce

battles fought between public employee unions, pub-

lic employers, and numerous interest groups”). Al-

lowing these decisions to be made at the state level

also means that laws can be shaped to reflect the cul-

ture and politics of the individual State. See, e.g.,

Drummonds, supra, at 585 (noting that “[mJjany of

the states in the American South, Southwest, Plains,

and Rocky Mountains areas operate under [“right-to-

work”] laws now deeply imbedded in local culture”);

Kearney & Mareschal, supra, at 68 (observing that

21

“fhjistory and political culture have predisposed the

southern states against unions”).

Petitioners argue that the divergence of State ap-

proaches undermines any claim that arrangements

like the one at issue here pass constitutional muster,

see Pet’'rs’ Br. 12 (noting that “public-sector unions

are flourishing in the federal government and the

many states that prohibit agency fees”), but this

misses the fundamental point that different regimes

work in different States. The Constitution does not

tie the hands of state employers, denying them the

discretion to choose the rules most conducive to labor

stability and efficiency. That state legislators in

some States have decided that their State is better

served by a regime that does not allow for agency fee

arrangements says nothing about whether such ar-

rangements are critical to the stability of labor rela-

tions, and hence the effective provision of public ser-

vices, in other States. Indeed, the fact that States

have made different decisions about how to structure

public-sector collective bargaining generally reflects

the different values and belief systems of people in

different States, as well as the varying histories of

different States. See, e.g., Kearney & Mareschal, su-

pra, at 67 (observing that “[t]he states with compre-

hensive bargaining laws tend to share certain traits

and experiences’).

The Court should credit the reasoned judgment of

those States that do allow for agency fee arrange-

ments that those arrangements are an important and

effective method of ensuring that unions are able to

fulfill their exclusive-representation duties. This is

particularly true because States have relied on Abood

in crafting these arrangements for decades. Based on

their familiarity with labor relations in their States

and the laws governing public sector collective bar-

22

gaining, those amici state legislators who serve in

States that allow for agency fee arrangements know

how disruptive it would be if this Court were to inval-

idate those relationships. Relying on this Court’s de-

cision in Abood and its holding that public sector un-

ions can rely on agency fees to ensure they will have

the resources necessary to fulfill their duties as em-

ployees’ exclusive bargaining representative, “public

entities of all stripes have entered into multi-year

contracts with unions containing such clauses.” Har-

ris, 134 S. Ct. at 2652 (Kagan, J., dissenting); see id.

(“governments and unions across the country have

entered into thousands of contracts involving millions

of employees in reliance on Abood. Reliance interests

do not come any stronger.”); id. at 2645 (noting Abood

rule is “deeply entrenched”). A decision overturning

Abood would interfere with all of those contracts.

A decision overturning Abood would also invite

significant ‘itigation in States across the country, as

non-members would likely seek to recoup agency fees

paid in the past. Since this Court decided Harris v.

Quinn and held that agency fee arrangements are in-

valid in the context of home health care workers who

are not full public employees, numerous lawsuits

have been filed seeking the repayment of agency fees.

See, e.g., Brown v. Brown, No. 6:15-cv-01523 (D. Or.

complaint filed Aug. 12, 2015); Winner v. Rauner, No.

1:15-cv-07213 (N.D. Ill. complaint filed Aug. 17,

2015); Mentele v. Inslee, No. 3:15-cv-05134 (W.D.

Wash. complaint filed Mar. 4, 2015). The litigation

that would be spurred by a decision overturning

Abood would almost certainly be significantly great-

er.

In sum, amici know well the complicated calculus

involved in determining how to structure public sec-

tor labor relations, and they know how much of that

23

decisionmaking is based on local interests and values.

Overturning Abood and imposing one uniform rule on

the entire country would not only cause significant

disruption in the many States that use agency fee ar-

rangements, it would also take decisionmaking on

this important issue away from the state officials who

are best positioned to engage in it. Nothing in tle

First Amendment or this Court’s precedents requires

that result, and the decision of the court of appeals

should be affirmed.

CONCLUSION

For the foregoing reasons, the Court should af-

firm the judgment of the court of appeals.

Respectfully submitted,

ELIZABETH B. WYDRA*

BRIANNE J. GOROD

DAVID H. GANS

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

elizabeth@theusconstitution.org

Counsel for Amici Curiae

November 13, 2015 * Counsel of Record

APPENDIX

la

APPENDIX:

LIST OF AMICI*

Abeler, Jim

Former Representative of Minnesota

Benton, Don

Senator of Washington

Bishop, Click

Senator of Alaska

Brown, Adam

Representative of Illinois

Bryant, Terri

Representative of Illinois

Butler, Marc

Assemblymember of New York

Cathcart, Richard C.

Former Representative of Delaware

Costa, Doreen

Representative of Rhode Island

Colver, Jim

Representative of Alaska

Davidsmeyer, C.D.

Representative of Illinois

DiGirolamo, Gene

Representative of Pennsylvania

2a

LIST OF AMICI — cont'd

Duprey, Janet

Assemblymember of New York

Golden, Martin

Senator of New York

Hammond, Norine

Representative of Illinois

Hannon, Kemp

Senator of New York

Hicks, Ron

Representative of Missouri

Howard, Seth A.

Delegate of Maryland

Kay, Dwight

Representative of Illnois

Lancia, Robert B.

Representative of Rhode Island

Lanza, Andrew

Senator of New York

LaTourette, Steve

Former Representative of Ohio in the U.S.

House of Representatives

Latvala, Jack

Senator of Florida

3a

LIST OF AMICI — cont'd

LeDoux, Gabrielle

Representative of Alaska

Lofink, Vincent

Former Representative of Delaware

Martins, Jack

Senator of New York

McCann, Sam

Senator of Illinois

Miloscia, Mark

Senator of Washington

Mitchell, Bill

Representative of Illinois

Mullin, Kevin J.

Senator of Vermont

Munoz, Cathy

Representative of Alaska

Murray, Dean

Assemblymember of New York

Nozzolio, Michael

Senator of New York

Oberle, Jr., William A.

Former Representative of Delaware

4a

LIST OF AMICI — cont'd

Poe, Raymond

Representative of Illinois

Ra, Edward

Assemblymember of New York

Ramone, Michael

Representative of Delaware

Roach, Pam

Senator of Washington

Robach, Joseph

Senator of New York

Savage, John A.

Former Representative of Rhode Island

Saviano, Angelo “Skip”

Former Representative of Illinois

Seaton, Paul

Representative of Alaska

Smyk, Stephen T.

Representative of Delaware

Stec, Dan

Assemblymember of New York

Stevens, Gary

Senator of Alaska

5a

LIST OF AMICI — cont'd

Stutes, Louise

Representative of Alaska

Thompson, Steve

Representative of Alaska

Tilton, Cathy

Representative of Alaska

Volker, Dale

Former Senator of New York

* Amici who no longer serve in a state legislature

or Congress join solely in their individual capacities

as former members of a state legislature or Congress.