Amicus Curiae Brief — Janus v. Am. Fed'n, 138 S. Ct. 54 (2017) (No. 16-1466)

No. 16-1466

anne teieheeentn nen

In the

Supreme Court of the United States

Mark Janus, Petitioner

v.

American Federation of State, County, and

Municipal Employees, Council 31, et al.,

Respondents

On Writ of Certiorari to the United States Court

of Appeals for the Seventh Circuit

Brief of Amicus Curiae James Madison

Center for Free Speech, Inc.

Supporting Petitioner

James Bopp, Jr.

Counsel of Record

Richard E. Coleson

THE BOPP LAW FIRM, PC

The National Building

1 South Sixth Street

Terre Haute, IN 47807

812/232-2434 telephone

jboppjr@aol.com

November 2017 Counsel for Amicus Curiae

Question Presented

Whether Abood v. Detroit Board of Education, 431

U.S. 209 (1977), should be overruled and public-sector,

agency-fee arrangements declared unconstitutional

under the First Amendment. Amicus focuses on the

included issues of (i) whether Abood applied proper

First Amendment scrutiny, (ii) the scrutiny applied in

analogous campaign-finance cases, and (iii) the proper

level of scrutiny in this case.

Table of Contents

I oa welsh cddinindcd ddvdwaveds iii

Interest of Amicus Curiae................00006: 1

Summary of the Argument...................+. 2

pS TTT CTT ee eee ee Ter 1

I. Abood Erroneously Failed to Apply

First Amendment Scrutiny................ 1

Il. Abood Is Inconsistent with the High

Scrutiny in Campaign-Finance Cases.. ... . . 8

A. Speech Burdens Require Strict Scru-

Ill. Strict Scrutiny Is Required in Public-

Table of Authorities

Cases

Abood v. Detroit Board of Education, 431 U.S. 209

DD cudbwauedeceteds i-4, 6-10, 16, 18-19, 21

American Tradition Partnership v. Bullock, 567

Pe, Ovcaduttubscondusneheucees 1

Austin v. Michigan Chamber of Commerce, 494

Se Es Uelccéiéycbesbesadeeada 11, 16

eee ee Dale, 530 U.S. 649 (2000)

wid auies dba eeen ened been brentesonects 21

Brown v. Louisiana, 383 U.S. 131 (1966)......... 22

Buckley v. Valeo, 424 U.S. 1 (1976)

TTT TTT Or eT Tee eee 2-9, 11-14, 18-19, 21

Citizens United v. FEC, 558 U.S. 310 (2010)

Ss BhaWunnete Fou euteb ives states 1, 9, 11, 16, 19

Cohen v. California, 403 U.S. 15 (1971).......... 22

Elrod v. Burns, 427 U.S. 347 (1976)......... 5-6, 21

FEC v. Beaumont, 539 U.S. 146 (2003). .......... 1

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007)

eT Pe Oe eee or nee eae 1, 9, 12-13, 19

First Nat. Bank of Boston v. Bellotti, 435 U.S. 765

A es ee ee Pe an 10

Gooding v. Wilson, 405 U.S. 518 (1972).......... 22

Harris v. Quinn, 134 S.Ct. 2618 (2014)

“eee eeeeeneeeeneeeeeeeeneeee ee ee &

7-8, 15-20, 22

Hess v. Indiana, 414 U.S. 105 (1973)............ 22

Hurley v. Irish-American Gay, Lesbian & Bisexual

Group of Boston, 515 U.S. 557 (1995)......... 21

Knox v. SEIU, Local 1000, 567 U.S. 298 (2012)

TeTlTC TT CT TTT TT 8, 16-18, 20, 22

Machinists v. Street, 367 U.S. 740 (1961). ...... 4,7

Marbury v. Madison, 5 U.S. 137 (1803)........ 8, 16

McConnell v. FEC, 540 U.S. 93 (2003)......... 1,11

McCutcheon v. FEC, 134 8.Ct. 1434 (2014)

sac heh a neehousicuneddesnss 1, 8-9, 13-19

McIntyre v. Ohio Elections Commission, 514 U.S.

Des Gtk. Sales diuides ehaeehs Oe 7,10

Meyer v. Grant, 486 U.S. 414 (1988). ........... 10

Nixon v. Shrink Missouri Government PAC, 528

DP cigsededs eetendeect bees 15

Railway Employees’ Dept. v. Hanson, 351 U.S.

RGR a ES ROIS > Ss TC 3-4, 7, 22

Randall v. Sorrell, 548 U.S. 230 (2006)........... 1

iv

Republican Party of Minnesota v. White, 536 U.S.

PP OTTT TEC LITTLE LTT 1,12

Stable Communications of Cal. v. FCC, 492 U.S.

Ss bob SS606Nd 00 ere cbeteseevenees 9

Terminiello v. Chicago, 337 U.S. 1 (1949). ....... 22

Thornhill v. Alabama, 310 U.S. 88 (1940)........ 16

United States v. United Foods, 533 U.S. 405 (2001) =

Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015). ...... i)

West Virginia Board of Education v. Barnette, 319

as Es Woes cer si cccceesedesesns 20

Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006)

Wooley v. Maynard, 430 U.S. 705 (1977)......... 20

Constitutions, Statutes, Regulations & Rules

ey a 6660 6 e o2teveds cebened e's eneewes 1

ees I IE Ei ccccccveccdeseedseeus passim

Interest of Amicus Curiae’

The purpose of the James Madison Center for Free

Speech is to support litigation and public education

activities defending the rights of political expression

and association. The Madison Center is an internal

educational fund of James Madison Center, Inc., a Dis-

trict of Columbia non-profit corporation. Madison Cen-

ter is tax-exempt under 26 U.S.C. 501(c)(3). See https://

www.jamesmadisoncenter.org. Counsel for Amicus

have authored articles, testimony, and comments and

litigated numerous cases involving campaign-finance

and free-speech issues. James Bopp, Jr. is Madison Cen-

ter’s general counsel. Cases in which he was counsel in

this Court include Republican Party of Minnesota v.

White, 536 U.S. 765 (2002), FEC v. Beaumont, 539 U.S.

146 (2003), McConnell v. FEC, 540 U.S. 93 (2003), Wis-

consin Right to Life v. FEC, 546 U.S. 410 (2006)

(“WRTL-I’), Randall v. Sorrell, 548 U.S. 230 (2006),

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007)

(“WRTL-IT’), Citizens United v. FEC, 558 U.S. 310

(2010), American Tradition Partnership v. Bullock, 567

U.S. 516 (2012), and McCutcheon v. FEC, 134 S.Ct.

1434 (2014).

' Rule 37 statement: All parties filed blanket consents;

no counsel for any party authored this brief in whole or in

part; and no person or entity other than amicus or its coun-

sel funded its preparation or submission.

2

Summary of the Argument

This Court’s decision in Abood v. Detroit Board of

Education, 431 U.S. 209 (1977), erroneously failed to

apply First Amendment scrutiny to the public-sector,

agency-fee issue before the Court today, though free

speech and free association were at issue. (Part I.)

While Abood and Justice Powell’s concurrence cited

Buckley v. Valeo, 424 U.S. 1 (1976), Abood is inconsis-

tent with the high scrutiny in the analogous campaign-

finance cases, which require (A) strict scrutiny of

speech burdens and (B) rigorous review of association

burdens, including contribution limits. (Part IT.) Strict

scrutiny is required in public-sector, agency-fee cases.

(Part IIT.)

Argument

I.

Abood Erroneously Failed to Apply

First Amendment Scrutiny.

The Abood Court erroneously failed to apply First

Amendment scrutiny to the public-sector, agency-fee

issue before the Court today. So it cannot control and

should be overruled as to the issue before this Court.

Abood did apply First Amendment scrutiny to its

second issue: whether public-sector unions can use ob-

jecting members’ fees for “ideological activities unre-

lated to collective bargaining,” 431 U.S. at 236, includ-

ing “the expression of political views,” id. at 235. It

relied on Buckley, 424 U.S. 1, for the proposition that

“Im]jaking a contribution ... enables like-minded per-

sons to pool their resources in furtherance of common

political goals,” and “that limitations upon the freedom

to contribute ‘implicate fundamental First Amendment

3

interests.” 431 U.S. at 234 (quoting Buckley, 424 U.S.

at 22-23). Abood held that compelled contributions (in-

stead of prohibited contributions) did not alter the con-

stitutional analysis, citing compelled-speech cases. /d.

at 234-35 (citations omitted). And it held that compel-

ling union members to pay the union “for the expres-

sion of political views” with which they disagree vio-

lates the First Amendment.” Jd. at 235-36. Abood did

not state a scrutiny level for this issue.

Abood did not apply First Amendment scrutiny to

the first issue: whether public employees can constitu-

tionally be assessed an agency fee by public-sector un-

ions with which employees disagree, though Abood

acknowledged that “compel|[ling] employees financially

to support their collective-bargaining representative

has an impact upon their First Amendment interests.”

Id. at 222. Rather, it said that perceived “interfer[ence]

... With an employee’s freedom to associate for the ad-

vancement of ideas, or to refrain from doing so” was

permissible based on two precedents that held, accord-

ing to the Abood majority, “that such interference as

exists is constitutionally justified.” Jd. And Abood held

that “(t]he differences between public- and private-sec-

tor collective bargaining simply do not translate into

differences in First Amendment rights.” /d. at 232. But

the majority did not state the scrutiny level, did not

analyze whether the government had met its burden of

proving burdens and tailoring, and so did no proper

First Amendment analysis.

This was called to the Abood majority’s notice at the

time. As Justice Powell’s concurrence observed, “the

Court avoids [a careful inquiry into the constitutional

interests at stake] on the grounds that it is foreclosed

by this Court’s decisions in Railway Employees’ Dept.

4

v. Hanson, 351 U.S. 225 (1956), and Machinists v.

Street, 367 U.S. 740 (1961).” 431 U.S. at 245 (Powell,

J., joined by Burger, C.J., and Blackmun, J., concur-

ring in the judgment); accord id. at 242-44 (Rehnquist,

J., concurring). Justice Powell declared the majority’s

reliance on precedents “misplaced,” id., and showed

that those cases didn’t do the First Amendment analy-

sis necessary in Abood, id. at 245-54.

Justice Powell would have held that “compelling a

government employee to give financial support to a

union in the public sector regardless of the uses to

which the union puts the contribution impinges seri-

ously upon interests in free speech and association pro-

tected by the First Amendment.” Jd. at 255 (emphasis

added). He asserted that there is no “basis here for dis-

tinguishing ‘collective-bargaining activities’ from ‘politi-

cal activities” for First Amendment purposes because

“lcjollective bargaining in the public sector is ‘political’

in any meaningful sense of the word.” Jd. at 257.

Regarding scrutiny, the Powell concurrence noted

that the First Amendment protects activities involved

and the burden is on the government to prove “para-

mount governmental interests”:

Under First Amendment principles that have

become settled since Hanson and Street were

decided, it is now clear, first, that any withhold-

ing of financial support for a public-sector union

is within the protection of the First Amendment;

and, second, that the State should bear the bur-

den of proving that any union dues or fees that

it requires of nonunion employees are needed to

serve paramount governmental interests.

Id. at 255. Regarding association-burden scrutiny, the

Powell concurrence noted first that in Buckley this

5

Court held that limits on political contributions “im-

pinge on protected association freedoms.” /d. at 256

(citation omitted). He observed that there is no First

Amendment difference between contribution limits and

compelled contributions for association-right purposes.

Id. And he noted that “no principled distinction” exists

between “a union in the public sector” and “a political

candidate or committee.” Jd. “The ultimate objective of

a union in the public sector, like that of a political

party, is to influence public decisionmaking in accor-

dance with the views and perceived interests of its

membership,” he observed. Jd. So, as already noted,

“(c]ollective bargaining in the public sector is ‘political’

in any meaningful sense of the word.” Jd. at 257. Jus-

tice Powell noted that precedents established an “ex-

acting scrutiny” requirement in the “public employ-

ment” context. Jd. at 259. And he quoted Elrod v.

Burns, 427 U.S. 347 (1976), for the following “para-

mount” or “vital importance” scrutiny level:

“The [governmental] interest advanced must be

paramount, one of vital importance, and the

burden is on the government to show the exis-

tence of such an interest.... [C]are must be taken

not to confuse the interest of partisan organiza-

tions with governmental interests. Only the lat-

ter will suffice. Moreover, ... the government

must “employ| ] means closely drawn to avoid

unnecessary abridgement ....””

Id. at 259-60 (quoting Elrod, 427 U.S. at 362 (control-

ling plurality opinion) (quoting Buckley, 424 U.S. at

25)). Notably, Elrod summarized the free-belief and

free-association level of scrutiny as requiring a “vita!”

interest and least-restrictive means: “In short, ... it

must further some vital government end by a means

6

that is least restrictive of freedom of belief and associa-

tion in achieving that end, and the benefit gained must

outweigh the loss of constitutionally protected rights.”

Id. at 363. In Abood, Justice Powell said “[t)he justifi-

cations offered by the Detroit Board of Education must

be tested under this settled standard of review.” Jd. at

260. And “[t]he Court’s failure to apply the established

First Amendment standards articulated in Elrod ...

and Buckley ... is difficult to explain” absent an “unar-

ticulated belief.” Jd. at 260 n.14. The Powell concur-

rence proceeded to consider interests in “labor peace”

and “free riders” and express doubts that they “justify

the intrusion upon First Amendment rights that re-

sults from compelled support for a union as a condition

of government employment.” /d. at 260-61.

Regarding speech-burden scrutiny, Justice Powell

said that the “exclusivity principle,” i.e., barring a

“minority-employee” from “engaging in meaningful

dialogue with his employer on the subjects of collective

bargaining, a dialogue that is reserved to the union,”

required the government to meet its “burden ... to

show” a “paramount interest” or “overriding govern-

mental objectives.” Jd. at 262. “The same may be said

of the asserted interests in eliminating the ‘free rider’

effect and in preserving labor peace,” he continued. /d.

This, he asserted, involved a speech burden and re-

quired overriding-interest scrutiny: “Before today it

has been well established that when state law intrudes

upon protected speech, the State itself must shoulder

the burden of proving that its action is justified by

overriding state interest.” Id. at 263 (emphasis added).”

? Justice Powell’s reference to “protected speech” prop-

erly notes that compelled employees’ First Amendment ob-

(continued...)

7

And he reiterated: “I would adhere to established First

Amendment principles and require the State to come

forward and demonstrate, as to each union expenditure

for which it would exact support from minority employ-

ees, that the compelled contribution is necessary to

serve overriding governmental objectives.” Id. at 264.

So Abood did not do the required First Amendment

scrutiny, despite Justice Powell’s urging. Abood did not

require the government to carry its “exacting scrutiny”

burden of proving a “paramount,” “vital,” or “overrid-

ing” interest and proper, narrow tailoring.®

That Abood did not do the required First Amend-

ment scrutiny has been reiterated by this Court. See

Harris v. Quinn, 134 S.Ct. 2618, 2631 (2014) (In

Abood, “|t|his Court treated the First Amendment is-

sue as largely settled by Hanson and Street.”).

2 (...continued)

jection is to both compelled association and to compelled

funding of speech to which they object, e.g., about “how best

to educate the young” or whether to “strike against a public

agency,” id. at 263.

° Note that “exacting scrutiny” has been used for both

association burdens and speech burdens until more recent

cases. For example, this Court applied “exacting scrutiny”

to what would now be called strict scrutiny in Buckley, 424

U.S. at 44-45 (“the exacting scrutiny applicable to limita-

tions on core First Amendment rights of political expres-

sion”). And Buckley applied “exacting scrutiny” to disclosure

requirements, a burden on free-association rights. /d. at 64.

This terminology was followed in subsequent campaign-

finance cases, with this Court then equating “exacting scru-

tiny” with “strict scrutiny” in McIntyre v. Ohio Elections

Commission, 514 U.S. 334, 346 n.10 (1995).

8

Harris said “no fine parsing of levels of First

Amendment scrutiny is needed because the agency-fee

provision here cannot satisfy even the test used in

Knox |v. SEIU, Local 1000, 567 U.S. 298 (2012)].” Har-

ris, 134 S.Ct. at 2639. But clearly establishing First

Amendment scrutiny levels in this context—as recently

done in the campaign-finance context in McCutcheon v.

FEC, 134 8.Ct. 1434 (2014), see infra Part 1—would

provide vital guidance in this area of the law and help

this Court fulfill its duty to “say what the law is.”

Marbury v. Madison, 5 U.S. 137, 177 (1803).

The issue of what level of First Amendment scru-

tiny should have been applied in Abood and is required

for compelled speech and association (both involved

here) is further discussed in Parts II and III.

Il.

Abood Is Inconsistent with the High

Scrutiny in Campaign-Finance Cases.

As noted, in the part of Abood that did do a First

Amendment analysis—Abood expressly quoted Buckley

as establishing that contributions “implicate funda-

mental First Amendment interests.” 431 U.S. at 234

(citations omitted). And Justice Powell’s concurrence

recited Buckley at multiple points. Jd. at 255-56, 260 &

n.14. Moreover, as Justice Powell noted in his Abood

concurrence, “[c]ollective bargaining in the public sec-

tor is ‘political’ in any meaningful sense of the word.”

Abood, 431 U.S. at 257. Because (i) Abood relied on

Buckley, (ii) the activity at issue in Abood and the pres-

ent case is “political,” and (iii) campaign-finance cases

establish the scrutiny required for burdens on political

speech and expressive-association, including contribu-

tions, campaign-finance cases establish the scrutiny

9

that should have been applied in Abood and should be

applied here. Those scrutiny levels are discussed next.

A. Speech Burdens Require Strict Scrutiny.

Current campaign-finance law requires that “[l]aws

that burden political speech are ‘subject to strict scru-

tiny,’ which requires the Government to prove that the

restriction ‘furthers a compelling interest and is nar-

rowly tailored to achieve that interest.” Citizens

United v. FEC, 558 U.S. 310, 340 (2010) (quoting FEC

v. Wisconsin Right to Life, 551 U.S. 449, 464 (2007)

(Roberts, C.J., joined by Alito, J.)*).

The narrow-tailoring requirement mandates least-

restrictive means, as set out in this Court’s latest word

on the strict-scrutiny test in the campaign-finance con-

test: McCutcheon, 134 S.Ct. 1434. As noted in McCut-

cheon, Buckley called strict scrutiny “exacting scru-

tiny,” id. at 1444 (Roberts, C.J., joined by Scalia, Ken-

ned; & Alito, JJ.)° (quoting Buckley, 431 U.S. at 44-45

(“the »xacting scrutiny applicable to limitations on core

First Amendment rights of political expression”)), and

“lujnder [this] exacting scrutiny, the Government may

regulate protected speech only if such regulation pro-

motes a compelling interest and is the least restrictive

means to further the articulated interest,” id. (citing

Stable Communications of Cal. v. FCC, 492 U.S. 115,

126 (1989). Accord Wagner v. FEC, 793 F.3d 1, 5 (D.C.

* This controlling opinion (“WRTL-II’) states the hold-

ing. Marks v. United States, 430 U.S. 188, 193 (1977).

° This controlling opinion (“McCutcheon”) states the

holding. Marks, 430 U.S. at 193. Justice Thomas would

have gone further: “I would overrule Buckley and subject

the aggregate limits in BCRA to strict scrutiny, which they

would surely fail.” McCutcheon, 134 S.Ct. at 1464.

10

Cir. 2015) (strict-scrutiny requires least-restrictive-

means narrow tailoring.)

This Court’s frequent equation of “exacting scru-

tiny” and “strict scrutiny” was expressly stated in

MclIntyre, 514 U.S. 334, which said that “a limitation

on political expression [is] subject to exacting scru-

tiny,” id. at 346 (quoting Meyer v. Grant, 486 U.S. 414,

420 (1988)), then described this “exacting scrutiny” as

“strict scrutiny,” id. at 346 n.10 (“In Meyer, we unani-

mously applied strict scrutiny to invalidate an elec-

tion-related law making it illegal to pay petition

circulators for obtaining signatures to place an initia-

tive on the state ballot.”). Summarizing its discussion

of “exacting” and “strict” scrutiny, the McIntyre Court

concluded by returning to the “exacting scrutiny” for-

mulation: “When a law burdens core political speech,

we apply ‘exacting scrutiny,’ and we uphold the restric-

tion only if it is narrowly tailored to serve an overrid-

ing state interest.” Jd. at 347 (citing First Nat. Bank of

Boston v. Bellotti, 435 U.S. 765, 786 (1978).)°

Regarding what constitutes a “compelling” (or “over-

riding” or “paramount”) interest, the campaign-finance

®“Overriding” is used as a substitute for “compelling” in

the McIntyre quotation, indicating that “compelling” has the

superlative connotation of this and other synonyms substi-

tuted for it. In Abood, Justice Powell's concurrence substi-

tuted “overriding,” 431 U.S. at 249 n.3, 262, 264, “para-

mount,” id. at 255, 259, and “of vital importance,” id. at

259. While synonyms help to supply meaning to “compel-

ling” and perhaps serve a literary function by providing

word variety, the standardized use of terms in recent

campaign-finance cases helps to avoid confusion among

those who must parse levels of scrutiny in applying this

Court’s opinions.

11

cases are instructive regarding (i) what is and is not

compelling and (ii) the fact that what is deemed com-

pelling is not immutable. Buckley held that an interest

in preventing quid-pro-quo corruption (or its appear-

ance) was sufficiently compelling to justify limits on

political contributions. 424 U.S. at 26. But the anti-

corruption interest could not justify a limit on inde-

pendent expenditures for political speech because the

independence of the communications removed cogniza-

ble quid-pro-quo risk. Jd. at 33-48. In Buckley, this

Court also rejected interests in “equalizing the relative

ability of individuals and groups to influence the out-

come of elections,” id. at 48-49, and “reducing the alleg-

edly skyrocketing costs of political campaigns,” id. at

57. In Austin v. Michigan Chamber of Commerce, 494

U.S. 652 (1990), this Court held that “the compelling

governmental interest in preventing corruption sup-

port|s] the restriction of the influence of political war

chests funneled through the corporate form.” Jd. at 659

(citation omitted). And McConnell v. FEC, 540 U.S. 93

(2003), further broadened the concept of “corruption”

from narrow quid-pro-quo corruption to include mere

candidate gratitude, political influence, and political

access, see, e.g., id. at 145 (candidate “gratitude” suf-

ficed for “corruption”). But Citizens United narrowed

the broadened anti-corruption interest in Austin and

McConnell, overruling both as necessary, returning to

Buckley's narrow concept of “corruption” as including

only quid-pro-quo corruption (or the appearance of nar-

rowly defined quid-pro-quo corruption) and holding

that nocompelling interest justifies banning independ-

ent corporate speech. 558 U.S. at 336-66.’

’ An underinclusive law doomed an asserted interest in

(continued...)

12

Regarding narrow tailoring, the campaign-finance

cases are also instructive. Buckley held that a limit on

expenditures for independent speech could not “satisfy

the exacting scrutiny applicable to limitations on core

First Amendment rights of political expression,” 424

U.S. at 44-45, for two reasons. First, as already noted,

independent expenditures lack cognizable quid-prc quo

risk. Id. at 47. Second, even assuming an anti-corrup-

tion interest, the provision failed to advance that inter-

est after the Court was required to construe “expendi-

ture” to reach only express-advocacy communications,

which made the provision easily skirted by not using

express words of advocacy. Id. at 45.

Finally, this Court has recognized the First Amend-

ment’s special protection for political “issue advocacy,”

which is “speech about public issues more generally”

than “express advocacy” of the election or defeat of a

clearly identified candidate. WRTL-II, 551 U.S. at 456

(emphasis added). “Discussion of public issues ... [is]

integral to the operation of the system of government

established by our Constitution. The First Amendment

affords the broadest protection to such politica! expres-

sion ... ‘to assure (the) unfettered interchange of ideas

for the bringing about of political and social changes

’ (...continued)

assuring impartial judges to justify banning them from an-

nouncing their opinions on vital issues when campaigning

for office. Republican Party of Minnesota v. White, 536 U.S.

765, 780 (2002) (“[T]he Court need not decide whether

achieving [judicial] ‘impartiality’ (or its appearance) in the

sense of openmindedness is a compelling state interest be-

cause, as a means of pursuing this interest, the announce

clause is so woefully underinclusive that the Court does not

believe it was adopted for that purpose.” (citation omitted).).

13

desired by the people.” Buckley, 424 U.S. at 14 (cita-

tion omitted). This high protection extends to

expressive-association to advance issues, e.g., the

NAACP:

The First Amendment protects political associa-

tion as well as political expression. The constitu-

tional right of association explicated in NAACP

v. Alabama, 357 U.S. 449, 460 (1958), stemmed

from the Court’s recognition that “[e]ffective ad-

vocacy of both public and private points of view,

particularly controversial ones, is undeniably

enhanced by group association.”

Buckley, 424 U.S. at 15. And “the First Amendment

requires us to err on the side of protecting political

speech rather than suppressing it.” WRTL-I/, 551 U.S.

at 457.

In sum, in the analogous campaign-finance context,

where political speech and expressive-association is

highly protected, the most recent word from this Court

in McCutcheon establishes that burdens on free speech

require strict scrutiny, which mandates least-restri-

ctive-means narrow tailoring to a compelling interest.

B. Association Burdens Require Rigorous Review.

Buckley considered limits on political contributions

as primarily burdens on the First Amendment right to

free association, though it acknowledged that a “free

communication” burden also exists. 424 U.S. at 20-21.

And it said the scrutiny requires “a sufficiently impor-

tant interest and ... means closely drawn to avoid un-

necessary abridgment of associational freedoms.” Jd. at

25. Crucially, this is a “rigorous standard of review,”

id. at 29, meaning one that the government will have

14

difficulty meeting.” Such rigorous review is mandated

by the fact that “[t}he Act’s contribution and expendi-

ture limitations operate in an area of the most funda-

mental First Amendment activities.” Jd. at 14.

McCutcheon reiterated this rigorous review, stating

Buckley's test thus: “{I|f a law that restricts political

speech does not ‘avoid unnecessary abridgement’ of

First Amendment rights, ...it cannot survive ‘rigorous’

review,” id. at 1446 (emphasis added; citations omit-

ted). Note that, though Buckley minimized the speech

aspect of contributions, McCutcheon speaks of “restrict-

[ing] political speech” when considering restrictions on

political contributions, equating contributions with

speech. This is of course correct in “political” contexts,

where contributions are both a form of speech and used

for speech. And McCutcheon requires that “closely

drawn” be understood to require narrow tailoring, i.e.,

“means narrowly tailored to achieve the desired objec-

tive.” Id. at 1456-57. McCutcheon further described the

required tailoring thus:

Even when the Court is not applying strict scru-

tiny, we still require “a fit that is not necessarily

perfect, but reasonable; that represents not nec-

essarily the single best disposition but one

whose scope is ‘in proportion to the interest

* Unlike “compelling interest,” “paramount interest,”

and “overriding interest,” “sufficiently important interest”

is less precise terminology. “Important” means the interest

is not unimportant, but it lacks any other indication of de-

gree, such as the superlatives “paramount” and “overriding”

provide. “Sufficiently” indicates no degree of importance,

merely that an interest suffices in the eyes of a court (in

after-the-fact review). So specifying that “rigorous review”

is required is helpful in retaining the high scrutiny level.

15

served,’ ... that employs not necessarily the least

restrictive means but ... a means narrowly tai-

lored to achieve the desired objective.”

Id. at 1456-57 (citations omitted). That articulated

narrow-tailoring requirement is often overlooked, in-

cluding when this scrutiny is labeled “closely drawn’

scrutiny.” So this scrutiny is usefully called “rigorous

review,” which indicates the strength of the test and

avoids misleading connotations as to tailoring.’

In sum, in the analogous campaign-finance context,

the most recent word from this Court in McCutcheon

establishes that limiting contributions involves both

association and speech and requires (at least) rigorous

review—little lower than strict scrutiny, with narrow

tailoring required.

Il.

Strict Scrutiny Is Required in

Public-Sector, Agency-Fee Cases.

This Court should clearly establish the scrutiny

level in public-sector, agency-fee cases, which involve

highly protected issue-advocacy political speech, subsi-

dizing that speech, and expressive-association—all in

the context of compelled speech, subsidy, and associa-

tion. Harris said “no fine parsing of levels of First

® Amicus believes burdens on political speech, associa-

tion, and contributions—all at the core of First Amendment

protection—should be strictly scrutinized. See, e.g., Nixon

v. Shrink Missouri Government PAC, 528 U.S. 377, 412

(2000) (Thomas, J., dissenting) (disagreeing with majority's

refusal to apply strict scrutiny to contribution limits). But

reaffirmation of rigorous review in McCutcheon is an impor-

tant step toward fuller protection for political contributions

and their inherent speech and association.

16

Amendment scrutiny is needed because the agency-fee

provision here cannot satisfy even the test used in

Knox.” Harris, 134 S.Ct. at 2639.

But the Court should “say what the law is,” Mar-

bury, 5 U.S. at 177, so that lower courts, counsel, un-

ions, public employees, and the public will know what

scrutiny the First Amendment requires and apply it.

Moreover, the First Amendment counsels against

drawn-out guidance requiring “substantial litigation

over an extended time, all to interpret a law that be-

yond doubt discloses serious First Amendment flaws|

because t]he interpretive process itself would create an

inevitable, pervasive, and serious risk of chilling pro-

tected speech ....” Citizens United, 558 U.S. at 326-27.

And such “serious First Amendment flaws”—regarding

Abood—were “disclose[d]” by this Court in both Knox,

567 U.S. at 308-14, and Harris, 134 S.Ct. at 2627-43.

So the “inevitable, pervasive, and serious risk” of ongo-

ing First Amendment chill resulting from public-sector,

agency-fee agreements relying on Abood requires es-

tablishing the correct scrutiny level and reconsidering

Abood, as done in Citizens United, 558 U.S. at 336:

The ongoing chill upon speech that is beyond all

doubt protected makes it necessary in this case

to invoke the earlier precedents that a statute

which chills speech can and must be invalidated

where its facial invalidity has been demon-

strated. See WRTL, [551 U.S.] at 482-483, (ALI-

TO, J., concurring); Thornhill v. Alabama, 310

U.S. 88, 97-98 (1940). For these reasons we find

it necessary to reconsider Austin.

When this Court does state the scrutiny level here,

the Court should hold that it is strict scrutiny, as de-

fined in McCutcheon. See supra Part 1.A. This Court

17

acknowledged in Harris that “it is arguable that the

United Foods standard is too permissive.” 134 S.Ct. at

2639 (referencing United States v. United Foods, 533

U.S. 405, 415 (2001)). The United Foods scrutiny, used

in Knox was commercial-speech scrutiny and “it [was]

apparent that the speech compelled in [Knox was] not

commercial speech.” 567 U.S. at 310. Nonetheless,

Harris used the following scrutiny level (because in

Harris the commercial-speech scrutiny sufficed): the

government has the burden to prove that a challenged

“provision ... serve[s] a “compelling state interes|t] ...

that cannot be achieved through means significantly

less restrictive of associational freedoms.”” 134 S.Ct. at

2639 (citations omitted). The United Foods test is in-

adequate here for at least three reasons.

First, this case does not involve commercial speech.

“Commercial speech [i]s ‘speech that does no more than

propose a commercial transaction.” Harris, 134 S.Ct.

at 2639 (citation omitted). But in Harris, which would

have imposed a public-sector, agency-fee agreement on

personal assistants (who were held not to be true pub-

lic employees), this Court held that “the union speech

in question ... does much more than [propose a com-

mercial transaction].” Jd.

Second, if only associational freedom were involved

(though more is involved), the proper current test for

association burdens involving contributions is set out

in McCutcheon, which scrutiny (at a minimum) should

be applied. See supra Part II.B. In McCutcheon, this

Court established that limiting contributions involves

both association and speech and requires (at least) rig-

orous review—little lower than strict scrutiny, with

narrow tailoring required. Jd. At the least the same

scrutiny should apply to compelled contributions. “Rig-

18

orous review” of “political” association (including politi-

cal speech, id.) is necessarily higher scrutiny than

commercial-speech review, based on (i) the fact that

political speech and association are more at the core of

First Amendment protection than commercial speech’”

and (ii) the differences in description of the scrutiny,

i.e., McCutcheon’s test requires “rigorous review” and

“narrow tailoring” while the commercial-speech test

does not.

Third, this Court has made it clear that political

contributions implicate not just expressive association

but also political speech. McCutcheon, 134 S.Ct. at

1446. Buckley dealt with political contributions primar-

ily as association burdens but acknowledged that a

“free communication” burden also exists. 424 U.S. at

20-21. And in Harris, this Court stated the issue as

“whether the First Amendment permits a State to com-

pel personal care providers to subsidize speech on mat-

ters of public concern by a union that they do not wish

to join or support.” 134 S.Ct. at 2631. (emphasis

added). “[S]ubsidiz[ing] speech” on “public concern|[s}”

goes far beyond mere association and is comparable to

what Abood held unconstitutional, i.e., financing “the

expression of political views” with assessments from

objecting public employees. 431 U.S. at 235-36. Yet

©“ At the core of the First Amendment are certain basic

conceptions about the manner in which political discussion

in a representative democracy should proceed.” Knox, 567

U.S. at 308 (citation omitted). “The central purpose of the

Speech and Press Clauses was to assure a society in which

‘uninhibited, robust, and wide-open’ public debate concern-

ing matters of public interest would thrive, for only in such

a society can a healthy representative democracy flourish.”

Id. (citation omitted).

19

Harris spoke of compelled payment of public-sector,

agency-fees, not just the “political views” fees Abood

held not subject to compulsion.

In sum, a commercial-speech level of scrutiny is not

appropriate here. The foregoing requires, at a mini-

mum, McCutcheon’s rigorous review for political contri-

butions, with its narrow tailoring requirement.

But as argued next, strict scrutiny should be ap-

plied. This is so for at least five reasons.

First, as just noted above, political speech and sub-

sidized political speech is involved. As already noted,

Buckley acknowledged that political contributions in-

volve “free communication,” Harris said subsidized

political speech is involved, and McCutcheon spoke of

“restrict{ing] political speech” when considering restric-

tions on political contributions, equating political

contributions with political speech. Citizens United

said political speech burdens require strict scrutiny

(and maybe a categorical prohibition):

Laws that burden political speech are “subject to

strict scrutiny,” which requires the Government

to prove that the restriction “furthers a compel-

ling interest and is narrowly tailored to achieve

that interest.” WRT'L, 551 U.S., at 464, 127

S.Ct. 2652 (opinion of ROBERTS, C.J.). [And] it

might be maintained that political speech sim-

ply cannot be banned or restricted as a categori-

cal matter, see Simon & Schuster, 502 U.S., at

124, 112S.Ct. 501 (KENNEDY, J., concurring in

judgment) ....

Citizens United, 558 U.S. at 340.

Second, as this Court said in Harris, compelled sub-

sidizing of speech on public issues is involved, 134

S.Ct. at 2631, which amounts to compelled speech.

20

Harris also noted that in Knox this Court had recited

“generally applicable First Amendment standards” for

the proposition that “[t]he government may not ... com-

pel endorsement of ideas that it approves.” Jd. at 2639

(citations omitted). “And,” Harris continued, “com-

pelled funding of the speech of other private speakers

or groups, presents the same dangers as compelled

speech.” Jd. Among the cases cited in Harris for the no-

compelled-speech doctrine were West Virginia Board of

Education v. Barnette, 319 U.S. 624 (1943), and Wooley

v. Maynard, 430 U.S. 705 (1977). Barnette involved a

compelled pledge and flag-salute, during a time of high

national-security concern, by school children who

viewed such acts as religious idolatry. Barnette held

that “freedoms of speech” are “susceptible of restriction

only to prevent grave and immediate danger to inter-

ests which the State may lawfully protect.” Jd. at 639.

And it held compelled speech to be beyond government

authority, id. at 642:

If there is any fixed star in our constitutional

constellation, it is that no official, high or petty,

can prescribe what shall be orthodox in politics,

nationalism, religion, or other matters of opin-

ion or force citizens to confess by word or act

their faith therein. If there are any circum-

stances which permit an exception, they do not

now occur to us.

In Wooley, the issue was an objection to a state motto

on car license plates, and the level of scrutiny required

“compelling” interests and “less drastic means” tailor-

ing. 430 U.S. at 716-17. So compelled speech requires

strict scrutiny, as does compelled subsidizing of speech.

Third, compelled expressive-association is involved.

This Court has protected expressive-associations from

21

those who would alter the association’s speech, see, e.g.,

Hurley v. Irish-American Gay, Lesbian & Bisexual

Group of Boston, 515 U.S. 557 (1995); Boy Scouts of

America v. Dale, 530 U.S. 649 (2000). Dale expressly

rejected an “intermediate standard of scrutiny” be-

cause “New Jersey’s public accommodations law di-

rectly and immediately affects associational rights, in

this case associational rights that enjoy First Amend-

ment protection,” 530 U.S. at 659, and the law would

“significantly burden the organization's right to oppose

or disfavor homosexual conduct,” id., its own expres-

sion. Here, public employees would be compelled to

associate with a group and its expression, neither of

which they want to associate with. So the same “tradi-

tional First Amendment analysis,” id., should protect

their refusal of expressive association.

Fourth, as noted above, this Court and the First

Amendment specially protect issue advocacy. See supra

at 12-13. The “political” speech of unions is their own

issue advocacy. Just as one’s own issue advocacy is

specially protected, one’s refusal to participate in and

subsidize the issue advocacy of another enjoys the

highest scrutiny—required for issue-advocacy burdens.

Fifth, nothing justifies a repeat of Abood’s “failure

to apply the established First Amendment standards

articulated in Elrod v. Burns and Buckley v. Valeo,”

including any “unarticulated belief that compelled sup-

port of a public-sector union makes better public policy

than compelled support of a political party,” as Justice

Powell suggested happened in Abood. 431 U.S. at 260

n.14. The First Amendment’s high protection for free

expression and association, especially involving “politi-

cal” issues and compulsion, mandates neutral tests of

general applicability that are clearly stated in advance

and applied without alteration or deference to any par-

22

ticular policy preferences in each new situation. In par-

ticular, “free-rider arguments ... are generally insuffi-

cient to overcome First Amendment objections,” Knox,

567 U.S. at 311 (providing quotation reciting exam-

ples), and First Amendment scrutiny should not be

bent to accommodate such arguments here. And to the

extent that “labor peace” is recited to justify the free-

rider “anomaly,” id., “it is an anomaly nevertheless,”

id., and “peace” arguments typically have no place in

free-speech and free-expression contexts. See, e.g.,

Terminiello v. Chicago, 337 U.S. 1 (1949); Cohen v.

California, 403 U.S. 15 (1971); Gooding v. Wilson, 405

U.S. 518 (1972); Hess v. Indiana, 414 U.S. 105 (1973).

And historically, this Court has rejected any “heckler’s

veto” over free speech. See, e.g., Brown v. Louisiana,

383 U.S. 131 (1966) (peaceful sit-in could not be barred

because of potential violence). As this Court said in

Harris about Hanson, “|t|he Court did not suggest that

‘industrial peace’ could justify a law that ‘forces men

into ideological and political associations which violate

their right to freedom of conscience, freedom of associa-

tion, and freedom of thought,’ or a law that forces a

person to ‘conform to [a union’s] ideology.” 134 S.Ct. at

2629 (citations omitted).

Conclusion

As the foregoing illustrates, this Court has used

considerable variety in describing the level of scrutiny

required to protect core First Amendment rights of po-

litical speech, association, and expressive-association,

including non-compulsion in any of these. This has led

to considerable confusion as lower courts, legal counsel,

unions, public employees, and the public all struggle to

know what the law is—what the First Amendment

requires. Following the example of the campaign-fi-

23

nance cases, the Court should clearly state the scrutiny

level here, using the same language as in the

campaign-finance cases. And strict scrutiny should be

required in this context, mandating the government to

bear the burden of proving least-restrictive-means nar-

row tailoring to a compelling governmental interest. Or

in the alternative, this Court should hold that as a cat-

egorical matter no such compulsion is permitted where

such core rights are involved.

Respectfully submitted,

James Bopp, Jr.

Counsel of Record

Richard E. Coleson

THE Bopp LAW FIRM, PC

The National! Building

1 South Sixth Street

Terre Haute, IN 47807

812/232-2434 telephone

jboppjr@aol.com

Counsel for Amicus Curiae