# Amicus Curiae Brief — Friedrichs v. Cal. Teachers Ass'n, 135 S. Ct. 2933 (2015) (No. 14-915) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0322%3A61 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2015 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0322%3A61. Public record. Not legal advice.