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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0755%3A13. Public record. Not legal advice.