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

No. 16-1466

In the Supreme Court of the United States

MARK JANUS,

Petitioner,

Vv.

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 FOR CALIFORNIA PUBLIC-SCHOOL

TEACHERS AS AMICI CURIAE

IN SUPPORT OF PETITIONER

TERENCE J. PELL MICHAEL A. CARVIN

MICHAEL E. ROSMAN Counsel of Record

CENTER FOR ANTHONY J. DICK

INDIVIDUAL RIGHTS WILLIAM D. COGLIANESE

1100 Connecticut Ave. NW VIVEK SURI

Suite 625 JONES DAY

Washington, DC 20036 51 Louisiana Ave., NW

(202) 833-8400 Washington, DC 20001

PAUL B. GREEN (202) 879-3939

JONES DAY macarvin@jonesday.com

3161 Michelson Drive

Suite 800

Irvine, CA 92612

(949) 851-3939

Counsel for Amici Curiae

᷑—̃ . — ͤͤ.'U—!b᷑ f — a me a an REE

QUESTION PRESENTED

Whether the Court should overrule Abood v. De-

troit Board of Education, 431 U.S. 209 (1977), and

hold that public-sector “agency shop” arrangements

violate the First Amendment.

ii

TABLE OF CONTENTS

Page

2 ......— . ˙ i

e 1

.... nncsecnsneriscneemeseestnnncien 1

—T 5

I. Compulsory union fees are subject to

— . 6

A. This Court’s cases require exacting

scrutiny of compulsory union fees

regardless of the Government’s role as

— 7

B. Exacting review advances the First

Amendment’s purposes 14

C. History confirms the propriety of

...T— 16

II. Compulsory agency fees are unjustifiable on

any standard of review . .. . .. 18

A. “Labor peace” does not justify compulsory

— w] —⁰Üw—————— 19

B. Concerns about “free riding” do not

justify compulsory union fees 22

III. If the Court overrules Abood, it should also

clarify that unions may collect fees from

nonmembers only with their affirmative

il

TABLE OF AUTHORITIES

Page(s)

CASES

Abood v. Detroit Board of Education,

11112 T passim

Alexander v. Gardner-Denver Co.,

. 26

Baggett v. Bullitt,

ot ees 9

Board of County Commissioners v. Umbehr,

e 9

Branti v. Finkel,

, 8

Citizens United v. FEC,

D 14

Consolidated Edison Co. v. NLRB,

! 23

Elrod v. Burns,

gf | 5 | eee 7, 8, 10

FEC v. National Right to Work Committee,

CE ... 14

Fisk v. Inslee,

No. 16-5889 (WD Wash. Oct. 16, 2017)......... 31, 32

Friedrichs v. California Teachers

, ‘ati

e aE 20, 23

Garcetti v. Ceballos,

547 U.S. 410 (2006)...............ccccessrsseesesees 10, 11, 12

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Harris v. Quinn,

r passim

Keyishian v. Board of Regents,

. ß x

Knox v. Service Employees,

Se .. passim

Lane v. Franks,

e ⸗ 10

Maslenjak v. United States,

// x 28

Morse v. Frederick,

e iincciteincninsinmetintminmnnnedetan 16

O'Hare Truck Services, Inc. v. City of

Northlake,

r : 8. 9

Perry v. Sinder mann.

,, . 10

Pickering v. Board of Education,

RR passim

Riley v. National Federation of the Blind,

e 30

Rutan v. Republican Party of Illinois,

og T 8,

Steele v. Louisville & Nashville Railroad,

. ccc

V

TABLE OF AUTHORITIES

(continued)

Page(s)

Teachers v. Hudson,

475 U.S. 292 (1986). . ... . . . . 27, 28, 29

Torcaso v. Watkins,

367 U.S. 488 (1961) .. . be- 10

U.S. Civil Service Commission v. Letter

Carriers,

413 U.S. 548 (1973) . . ... 14

United States v. NTEU,

513 U.S. 454 (1995) . ... 19

United States v. United Foods,

533 U.S. 405 (2001) .. . . . 13

Waters v. Churchill.

511 U.S. 661 (1994) .. . rb. 11

West Virginia State Board of Education v.

Barnette,

319 U.S. 624 (1943) .. 12, 14, 15, 16

Wieman v. Updegraff,

344 U.S. 183 (1952). ...... . . 4

Yohn v. California Teachers Association,

No. 17-202 (CD Cal. 2017). passim

STATUTES

Act of Supremacy, 1 Eliz. c. 1 (1558) .... 16

Act of Uniformity, 14 Car. II c. 4 (1662). 17

City of London Militia Act,

14 Car. II c. 3 (1662)... .... “’ 17

vi

TABLE OF AUTHORITIES

(continued)

Oaths of Allegiance and Supremacy Act,

1 Gul. & Mar. c. 8 (1688)

Security of the Succession Act,

13-14 Gul. III c. 6 (170) ieee

Virginia Statute for Religious Freedom

OTHER AUTHORITIES

Declaration of Independence .......................

Oliver Ellsworth, Landholder No. 7

(1787) in Essays on the Constitution

of the United States, Paul Leicester

8 Cee

Supreme Court Rule 37.6...

Richard H. Thaler & Cass R. Sunstein,

Noah Webster, A Collection of Essays

and Fugitiv Writings (1790)

Kim Crockett, “Unions Act as if They've

Already Lost,” Wall Street Journal

1899...

— 1

INTEREST OF AMICI CURIAE

Amici Bruce Aster, Darren Miller, Allen Osborn,

Michelle Raley, Robert Vehrs, Stacy Vehrs, and Ryan

Yohn are public-school teachers who are subject to

compulsory union fees in California. Amicus Associa-

tion of American Educators is a group whose members

include public-school teachers subject to compulsory

union fees (in California and elsewhere). Amici have

sued California and the California Teachers Associa-

tion to challenge the compulsory-fee scheme in that

State. That lawsuit is pending. Yohn v. California

Teachers Association, No. 17-202 (CD Cal. 2017).

SUMMARY OF ARGUMENT

This amicus brief makes three points: (1) Laws

compelling people to pay union fees as a condition of

public employment are subject to exacting scrutiny;

(2) such laws cannot satisfy any level of scrutiny, as

confirmed by empirical information that amici have

uncovered in discovery in Yohn; (3) if the Court over-

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

209 (1977), it should also clarify that a public-sector

union may collect fees from nonmembers only with

their affirmative consent.

I. Laws compelling individuals to pay union fees

as a condition of public employment are subject to ex-

acting scrutiny. First, this Court has long engaged in

exacting review of laws requiring people to support

In accordance with Supreme Court Rule 37.6, amici state

that no counsel for a party authored this brief in whole or in part,

and that no person or entity, other than amici and their counsel,

made a monetary contribution intended to fund the preparation

and submission of this brief. All parties have filed letters grant-

ing blanket consent to the filing of amicus briefs.

2

political or ideological causes as a condition of public

employment. In contrast, the Court has reserved less

exacting review for routine personnel policies that re-

strict employee speech in order to manage the work-

place or ensure effective job performance. Agency-fee

laws—which are categorical compulsions to support

outside advocacy groups, rather than individualized

restrictions on workplace speech-—thus deserve exact-

ing review.

Second, the purposes of the First Amendment con-

firm this analysis. The First Amendment guards

against the threat that the government and allied in-

terest groups will abuse their powers to coerce uni-

formity of thought. There is a grave danger of such

abuse whenever a government decides that everyone

must support a favored political agenda as a condition

of public employment. Aiso, the open marketplace of

political ideas protected by the First Amendment is

badly distorted by state-imposed requirements to sup-

port a particular advocacy group. Finally, the First

Amendment secures a sphere of individual conscience

free from government control, and the state intrudes

on this sphere when it compels people to contradict

their deeply held beliefs by subsidizing causes they

fervently oppose.

Third, history confirms the propriety of exacting

review. For centuries before the Founding, English

rulers tried to secure conformity of religious and polit-

ical thought by compelling public servants to affirm

particular beliefs as a condition of employment. For

example, Parliament enacted laws forcing public em-

ployees to support the monarch’s status as head of the

Church, to denounce the theory that the people have

the right to rebel against a tyrannical government,

3

and to profess the legitimacy of the Hanoverian suc-

cession. The framers of our Bill of Rights condemned

these religious and political tests (even though the

tests were imposed only on public employees, rather

than on the citizenry at large). This history refutes the

notion that the First Amendment allows the govern-

ment to compel political speech as a prerequisite for

public employment.

II. Laws requiring payment of agency fees cannot

survive any level of review, exacting or deferential.

Abood’s defenders claim that compelled agency

fees promote “labor peace” by avoiding the problems

that would arise if the state had to deal with multiple

rival unions instead of a single bargaining agent. But

this argument is a non sequitur. The state’s interest

in avoiding multiple unions justifies (at most) the

proposition that there should be only one union, not

the separate proposition that objectors should be

forced to subsidize that union. Abood’s defenders per-

sist, however, that the state’s interest in dealing with

a single union justifies compelled agency fees on the

ground that, without such fees, the union would be-

come insolvent. Yet Abood’s defenders have never pro-

vided any empirical evidence to support such claims.

Nor can they do so, since public-sector unions flourish

at the federal level and in the many states that pro-

hibit agency fees.

Abood’s defenders also claim that compelled

agency fees are justified to prevent nonmembers from

“free riding.” This claim is meritless. The First

Amendment generally does not allow the government

to force someone to subsidize speech with which he

disagrees simply because the government thinks that

4

it benefits him. This is all the more true because a dis-

senting worker does not “free ride” on the union’s pol-

icies, but rather disagrees with those policies, and

must abide by them only because the state has im-

posed the union on him as his exclusive bargaining

representative. It is thus more accurate to describe

the dissenter (in JUSTICE KENNEDY’s words) as a com-

pelled rider” on policies with which he disagrees.

Against all of this, Abood’s defenders have sug-

gested that public-sector unions have a unique privi-

lege to extract fees from nonmembers because they

have a statutory duty to refrain from discriminating

against those nonmembers. But unions voluntarily as-

sume this “duty” in exchange for being empowered as

an exclusive bargaining representative. The “duty” is,

indeed, an essential (but minor) limit on the power of

exclusive representation: A union cannot simultane-

ously insist on both (1) the sole authority to negotiate

on behalf of all workers in the unit and (2) the author-

ity to discriminate against some of those workers dur-

ing those negotiations. Nor is there any evidence that

the nondiscrimination duty makes any difference in

how unions actually conduct themselves. Thus, the

“free-rider” justification for compelling speech is even

weaker in the union context than it is elsewhere.

III. If the Court decides to overrule Abood, exist-

ing procedures for collecting fees from nonmembers

will become defunct. Unions and nonmembers alike

need guidance about what rules will take their place.

The answer to that question is straightforward: Just

like any other political advocacy group, a union may

collect fees from a nonmember only if he affirmatively

consents (or “opts in”) to this subsidization. Under the

First Amendment, states must minimize the burden

5

on political speech. They cannot require individuals to

“opt out” of paying union fees, any more than they can

require them to “opt out” of making a donation to the

Democratic or Republican parties. Forcing nonmem-

bers to shoulder the burden of objecting to political

wage-garnishment serves no legitimate public pur-

pose, particularly since it contradicts the probable

preferences of nonmembers.

ARGUMENT

The First and Fourteenth Amendments prohibit

the States from “abridging the freedom of speech.” The

freedom of speech includes the right to decide which

words to speak, which groups to join, and which polit-

ical causes to support—or not to support.

One of the most powerful ways to support a cause

is to fund it—to put your money where your mouth is.

That is why the Declaration of Independence ends:

“we mutually pledge to each other our Lives, our For-

tunes and our sacred Honor.” And it is why the Vir-

ginia Statute for Religious Freedom (also written by

Thomas Jefferson) says: To compel a man to furnish

contributions of money for the propagation of opinions

which he disbelieves is sinful and tyrannical.”

In spite of these principles, this Court held in

Abood that a state may force public employees to sup-

port the inherently political agenda pursued by pub-

lic-sector unions in collective bargaining. That ruling

was incorrect, and this Court should overrule it.

This amicus brief addresses three points. First, we

explain why exacting scrutiny applies to laws that im-

pose compulsory union fees as a condition of public

employment. Second, drawing on information secured

6

in discovery in Yohn v. California Teachers Associa-

tion, we show why such compulsory fees violate the

First Amendment under any standard of review.

Third, if the Court does overrule Abood, it should also

clarify that a public sector union may not collect any

agency fees from nonmembers unless they affirma-

tively consent, or “opt in,” to such fee paying.

I. Compulsory Union Fees Are Subject To

Exacting Scrutiny

As a general rule, laws that compel people to sup-

port a political or ideological cause as a condition of

public employment are subject to exacting judicial

scrutiny. This Court has already decided that this ex-

acting scrutiny applies to laws that require public em-

ployees to pay compulsory union fees to support col-

lective bargaining: “Because a public-sector union

takes many positions during collective bargaining

that have powerful political and civic consequences,

the compulsory fees constitute a form of compelled

speech and association that imposes a significant im-

pingement on First Amendment rights.” Knox v. Ser-

vice Employees, 567 U.S. 298, 310—11 (2012). Such an

impingement cannot be justified except in the “exceed-

ingly rare” situation where it “serve[s] a compelling

interest that cannot be achieved through means sig-

nificantly less restrictive of associational freedoms.”

Id. at 310; see id. at 314 (compulsory union fees “must

serve a compelling interest and must not be signifi-

cantly broader than necessary to serve that interest”).

Defenders of Abood have argued, however, that

agency-fee laws nonetheless deserve more deferential

review because the government has imposed them in

its capacity as a public employer. They have relied on

7

cases such as Pickering v. Board of Education, 391

U.S. 563 (1968), which holds that the government's

decision to restrict employee speech in order to man-

age the workplace triggers interest-balancing rather

than full First Amendment review. They have urged

the Court to extend the same balancing test to com-

pulsory-fee laws.

This position is incorrect. Precedent, the purposes

of the First Amendment, and the history of condition-

ing public employment on ideological commitments all

establish that compulsory union fees are subject to ex-

acting scrutiny.

A. This Court’s Cases Require Exacting

Scrutiny Of Compulsory Union Fees

Regardless Of The Government’s Role As

Public Employer

1. Under this Court’s precedents, the scope of the

government’s authority to regulate employee speech

depends on the nature of the regulation. The most ex-

acting scrutiny applies to laws that compel support for

political or ideological causes as a condition of public

employment. By contrast, routine policies that restrict

employee speech in order to manage the workplace or

ensure effective job performance receive more defer-

ential review. Under this framework, agency-fee

laws—which are categorical compulsions to support

outside political advocacy groups, rather than individ-

ualized restrictions on workplace speech—deserve ex-

acting review.

The Court made this point most clearly in Elrod v.

Burns, 427 U.S. 347 (1976) (plurality opinion). There,

the Court ruled that any government practice that

compels public servants to “contribute a portion of

8

their wages to” an ideological advocacy group “must

survive exacting scrutiny.” Id. at 362. A majority of

this Court reaffirmed that rule in Rutan v. Republican

Party of Illinois, 497 U.S. 62, 74 (1990), which held

that patronage practices must be “narrowly tailored

to further vital government interests.”

The Court further elaborated on this point in

O Hare Truck Services, Inc. v. City of Northlake, 518

U.S. 712 (1996). There, the Court explained that laws

requiring public servants to satisfy a “raw test of po-

litical affiliation” face exacting scrutiny and are pre-

sumptively invalid. Id. at 719. At the same time,

where “a government employer” simply regulates

“specific instances of the employee’s speech or expres-

sion” in the course of managing the workplace, courts

instead apply “the balancing test from Pickering” and

often (though not always) sustain the employer's deci-

sion. Id.

Time and again, the Court has invalidated laws

compelling public servants to support a political cause

as a condition of getting or keeping their jobs. For ex-

ample, the Court has ruled that the state lacks the

power to:

e Require public-sector employees to join, work

for, or contribute money to a political party.

Rutan, 497 U.S. at 74; Branti v. Finkel, 445

U.S. 507, 513-17 (1980); Elrod, 427 U.S. at

355 (plurality opinion).

„ Require public teachers to disavow com-

munism. Keyishian v. Board of Regents, 385

U.S. 589, 597-604 (1967).

9

e Require public teachers to affirm that they

will respect the national and state flags. Bag-

gett v. Bullitt, 377 U.S. 360, 371 (1964).

¢ Require public-sector employees to affirm that

they are not members of “subversive organiza-

tions.” Wieman v. Updegraff, 344 U.S. 183,

190-91 (1952).

The principles underlying these cases defeat com-

pulsory public- union fees. Such coerced subsidization

does not involve the management of the workplace or

the regulation of “specific instances of [an] employee's

speech,” but instead imposes “raw testſs] of political

affiliation” by forcing employees to support the inher-

ently political agenda that public-sector unions pur-

sue in collective bargaining. O'Hare, 518 U.S. at 720.

Nobody who refuses to support this political agenda

may hold the public office in question—no matter how

qualified, no matter how experienced, no matter how

effective a public servant he may be. Under this

Court’s cases, such coercive politica! favoritism is sub-

ject to exacting review, and the government has no

special authority to impose it simply because it is an

employer.

2. The general principles underlying this Court’s

cases about the government’s authority as employer

confirm that the Court should engage in exacting re-

view of the law here.

This Court has long rejected Justice Holmes’ dic-

tum that one “may have a constitutional right to talk

politics,” but has “no constitutional right to be a po-

liceman.” Board of County Commissioners v. Umbehr,

518 U.S. 668, 675 (1996). Quite the contrary, the

Court has consistently ruled that “public employees

10

do not renounce their citizenship when they accept

employment.” Lane v. Franks, 134 S8. Ct. 2369, 2377

(2014). And the government may not “leverage the

employment relationship” (Garcetti v. Ceballos, 547

U.S. 410, 419 (2006)) to “produce a result which it

could not command directly” (Perry v. Sindermann,

408 U.S. 593, 597 (1972)).

This Court thus starts with the presumption that

laws abridging freedom of political speech trigger ex-

acting scrutiny, regardless of whether the government

enforces the restriction by invoking the sovereign’s

power to punish or the employer's power to discipline.

Indeed, since taking away someone’s job is generally

more coercive than simply taking away some of his

money—especially in fields such as “teach{ing],”

where “the government is a major (or the only) source

of employment” (Rutan, 497 U.S. at 77)—it makes no

sense to reduce the level of scrutiny just because the

government has decided to fire rather than to fine.

Consequently, for example, this Court engages in ex-

acting review both when the government orders citi-

zens to be Democrats and when it orders employees to

be Democrats (Elrod, 427 U.S. at 362), both when the

government orders citizens to say that God exists and

when it orders employees to say that God exists (Tor-

caso v. Watkins, 367 U.S. 488, 495 (1961)).

That said, this Court has recognized an exception

to this general rule. Under Pickering, the Court en-

gages in interest-balancing when the government reg-

ulates the workplace speech of individual employees.

391 U.S. at 568. This Court, however, has never “seen

Abood as based on Pickering.” Harris v. Quinn, 134 8.

Ct. 2618, 2641 (2014). Pickering applied less strict re-

view because of two basic realities: Applying exacting

11

scrutiny to discipline for public employees’ work-re-

lated speech would cripple the government’s ability to

manage the workplace, and would convert judges into

personnel managers. But neither of these problems

arises in reviewing laws requiring agency fees, and

there is thus no basis for relaxing scrutiny.

To elaborate: The Pickering cases explain that

“the extra power the government has in this area

comes from the nature of the government’s mission as

employer.” Waters v. Churchill, 511 U.S. 661, 674—75

(1994) (plurality opinion). “Government employers,

like private employers, need a significant degree of

control over their employees’ words and actions.” Gar-

cetti, 547 U.S. at 418. If an employee “who is paid a

salary so that she will contribute to an agency’s effec-

tive operation begins to do or say things that detract

from the agency’s effective operation, the government

employer must have some power to restrain her.” Wa-

ters, 511 U.S. at 675. Otherwise, “there would be little

chance for the efficient provision of public services.”

Garcetti, 547 U.S. at 418.

This rationale, however, does not cover laws com-

pelling public employees to support the political

agenda of an outside advocacy group. A public em-

ployer simply has no “need” to require public servants

to support the inherently political agenda pursued by

public-sector unions’ collective bargaining against the

employer. Nor is there any risk that public servants’

refusal to support the union’s political agenda will

hamper the “effective operation” of the government

workplace. There is, accordingly, no justification for

deferential review in this context.

12

Separately, the Pickering cases explain that more

deferential review is necessary to avoid the “displace-

ment of managerial discretion by judicial supervision.”

Garcetti, 547 U.S. at 423. These cases have cautioned

against “intrusive” “judicial oversight” of the interac-

tions between “government employees and their supe-

riors in the course of official business.” Id.

Again, however, there is no such risk here. This

case involves a general law requiring public servants

to fund the political agenda of outside advocacy groups.

It does not involve any exercise of “managerial discre-

tion” regarding how the workplace is run or how em-

ployees perform their job duties. As a result, this key

justification that underpinned Pickering and Garcetti

is entirely absent here.

This is particularly true because it is not Mark Ja-

nus’ employer, the Department of Healthcare and

Family Services, that has decided to extract fees from

him. It is the Illinois General Assembly that has done

so. There is no more reason to defer to this law than

there is to defer to any other law regulating speech.

In any event, even if Janus’s employer itself had

extracted the fees, this Court’s “duty” to protect the

employee’s right to refrain from supporting a political

cause that he opposes “does not depend upon [its] pos-

session of marked competence in the field where the

invasion of rights occurs.” West Virginia State Board

of Education v.Barnette, 319 U.S. 624, 639 (1943). The

Court “act[s] in these matters not by authority of [its]

competence but by force of [its] commissions.” Id. It

should not, “because of modest estimates of [its] com-

petence in such specialties as public [employment],

withhold the judgment that history authenticates as

[its] function ... when liberty is infringed.” Id.

13

3. There is no merit to the claim that this Court’s

decisions require deferential review here because col-

lective bargaining addresses “prosaic” issues rather

than issues of “public concern” (Harris, 134 S. Ct. at

2655 (KAGAN, J., dissenting)). This characterization of

collective bargaining “flies in the face of reality.” Har-

ris, 134 S. Ct. at 2642. Collective bargaining affects

public policy, public services, and the public fisc—all

“matter|s] of great public concern.” Id. at 2643.

More importantly, even assuming the accuracy of

this characterization of collective bargaining, the

“prosaic” character of the union’s speech would not af-

fect the objector’s First Amendment rights. People

have a right not to fund speech they oppose, prosaic or

not. For example, this Court has held that the First

Amendment prohibits compelling people to fund

mushroom advertising. United States v. United Foods,

533 U.S. 405 (2001). If there is a fundamental right

not to fund something as “mundane” as mushroom ad-

vertising, there is also a fundamental right not to fund

collective bargaining. Knox, 567 U.S. at 309.

This is because the nature of the union’s speech

tells us only whether the government may prevent the

union from uttering that speech; it says nothing about

whether the government may force a third party to

subsidize that speech. The “prosaic” nature of the un-

ion’s speech may diminish the First Amendment pro-

tection enjoyed by the union in making that speech,

but it does not diminish the protection enjoyed by pe-

titioner in refusing to fund that speech. Indeed, even

if the union’s collective-bargaining speech were wholly

unprotected, the government would still have no basis

for forcing others to fund it. A State’s choice not to ban

speech that it could constitutionally prohibit hardly

14

provides a rational justification for forcing others to

support that proscribable speech. For example, the

government may prohibit unions from contributing to

political campaigns (FEC v. National Right to Work

Committee, 459 U.S. 197, 208 (1982)), but that hardly

suggests that the government may compel third par-

ties to subsidize a union’s political contributions. Sim-

ilarly, the government may prohibit its employees

from participating in partisan politics (U.S. Civil Ser-

vice Commission v. Letter Carriers, 413 U.S. 548, 556

(1973)), but that does not mean that it may compel

third parties to support its employees’ partisan activ-

ities. Thus, petitioner’s right not to fund the union’s

bargaining is coextensive with petitioner’s right to

criticize or to refuse to praise that speech; it is not co-

extensive with the union’s right to engage in that bar-

gaining in the first place.

B. Exacting Review Advances The First

Amendment’s Purposes

The basic purposes of the First Amendment rein-

force all of these points.

First, the First Amendment is “premised on mis-

trust of governmental power.” Citizens United v. FEC,

558 U.S. 310, 340 (2010). It denies government power

to regulate speech, because governments (and allied

interest groups) tend to abuse that power to “coerce

uniformity of sentiment” in society. Barnette, 319 U.S.

at 641. There is a grave danger of such abuse any time

a government decides to require every public servant

to support a given creed as a condition of public em-

ployment. That is obvious from, for example, the

American experience with loyalty oaths during the

15

Red Scare. It is essential to review such speech com-

pulsions rigorously, not deferentially.

Second, the First Amendment secures for society

an “open marketplace in which differing ideas about

political, economic, and social issues can compete

freely for public acceptance without improper govern-

ment interference.” Knox, 567 U.S. at 309. It denies

the government the power to distort that marketplace

by “prohibit[ing] the dissemination of ideas that it dis-

favors” or “compel|[ling] the endorsement of ideas that

it approves.” Jd. A categorical requirement that all

public employees support a given political cause un-

doubtedly distorts this marketplace of ideas. By con-

trast, limiting the speech of government employees in

order to manage their wo lace or ensure their effec-

tive job performance carries no such risk. It therefore

makes sense to review the former far more stringently

than the latter.

Third, the First Amendment also secures for the

individual a “sphere of intellect and spirit” free “from

all official control.” Barnette, 319 U.S. at 642. The

state intrudes upon this sphere when it prevents

someone from “speak[ing] his own mind.“ but it in-

trudes even more seriously when it compells] him to

utter what is not in his mind.” Id. at 634. To be sure,

preventing an individual from expressing his views

impermissibly distorts the marketplace of ideas by ex-

cluding that citizen’s voice. But compulsions to speak

are worse still, because they force the citizen to affirm-

atively contradict his own views, both violating his

conscience and artificially enhancing the voice of the

opposing side. For this reason, “involuntary affirma-

tion could be commanded only on even more immedi-

ate and urgent grounds than silence.” Id. at 633.

16

The school cases illustrate this principle. On the

one hand, public schools have broad power to prohibit

the utterance of a disruptive message, say by disci-

plining a student for unfurling a banner urging drug

use. Morse v. Frederick, 551 U.S. 393, 410 (2007). On

the other hand, public schools lack similar power to

compel the support of a favored message, say by disci-

plining a student for failing to salute the flag. Barnette,

319 U.S. at 642.

The same logic is decisive here. A government em-

ployer intrudes upon its employees’ liberty more seri-

ously when it requires them to support political posi-

tions they do not favor (for example, by forcing them

to pay union fees) than when it restricts their speech

in order to improve workplace functioning and job per-

formance. Such affirmative compulsion therefore in-

herently deserves the most exacting scrutiny in all cir-

cumstances.

C. History Confirms The Propriety Of

Exacting Review

History illustrates the evils of imposing compul-

sory political support as a condition of public employ-

ment. For centuries before the Founding, English rul-

ers tried to secure conformity by requiring public serv-

ants to affirm religious and political beliefs. For exam-

ple:

e The Act of Supremacy required everyone “hav-

ing [the Queen's] Fee or Wagys' to affirm that

Elizabeth I was “the supreme Governour of

this Realme” in both “Spirituall” and Tempo-

rall” matters. 1 Eliz c. 1 (1558).

17

e The City of London Militia Act required mili-

tia officers to denounce the “traiterous posi-

tion” that the people may “take Armes against

the King.” 14 Car. II c. 3 (1662).

e The Act of Uniformity required “every

Publique Professor” to reject “change or alter-

ation of Government ... in Church or State.”

14 Car. II c. 4 (1662).

e The Oaths of Allegiance and Supremacy Act

required anyone “admitted into any Office or

Imployment” to “Abjure” the “Damnable Doc-

trine” that “Princes ... may be Deposed ... by

their Subjects.” 1 Gul. & Mar. c. 8 (1688).

e The Security of the Succession Act required

everyone who received “any Pay, Salary, Fee,

or Wages” from the Crown to profess the legit-

imacy of the Hanoverian succession. 13-14

Gul. III c. 6 (1701).

The framers of our Bill of Rights were familiar

with these abuses, and they abhorred them. For ex-

ample, Noah Webster condemned “test laws, oaths

of ... abjuration, and partial exclusions from civil of-

fices” as instruments of slavery” and “badge{s] of tyr-

anny.” Noah Webster, “On Test Laws, Oaths of Alle-

giance and Abjuration, and Partial Exclusions from

Office,” A Collection of Essays and Fugitiv Writings,

151-53 (1790). Oliver Ellsworth insisted that laws re-

quiring people to “make a public declaration of ... be-

lief ... in order to qualify themselves for public em-

ployments” were “useless, tyrannical, and peculiarly

unfit for the people of this country.” Oliver Ellsworth,

Landholder No. 7 (1787), in Essays on the Constitution

of the United States, Paul Leicester Ford ed., 168-71

18

(1892). And Thomas Jefferson wrote that “proscribing

any citizen as unworthy the public confidence, by lay-

ing upon him an incapacity of being called to offices of

trust and emolument, unless he profess ... this or

that ... opinion, is depriving him injuriously of those

privileges and advantages, to which, in common with

his fellow citizens, he has a natural right.” Virginia

Statute for Religious Freedom (1786).

This history forecloses the theory that the govern-

ment may require people to support a political or ide-

ological cause simply because it happens to be their

employer. To the contrary, English history shows that

such requirements are rife with potential for abuse,

and American history shows that the founding gener-

ation would not have tolerated them. It thus makes no

difference that agency-fee requirements are enforced

through employment sanctions; exacting scrutiny still

applies.

II. Compulsory Agency Fees Are Unjustifiable

On Any Standard Of Review

Regardless of whether this Court engages in ex-

acting or deferential review, the government bears the

burden of identifying a good reason for forcing objec-

tors to fund the political agenda of an outside advo-

cacy group such as a public-sector union. Defenders of

Abood have identified two justifications for this prac-

tice: (1) promoting “labor peace” and (2) preventing

“free riding.” Neither of these interests, however, can

justify the extraordinary step of compelling political

speech—on any standard of review. We show why that

is so below, drawing on empirical information that we

have uncovered during discovery in Yohn v. California

Teachers Association.

19

A. “Labor Peace” Does Not Justify

Compulsory Union Fees

Defenders of Abood claim that compelled agency

fees promote “labor peace” by helping the state avoid

“the confusion and conflict that could arise if rival ...

unions, holding quite different views, ... e ch sought

to” represent employees during collective bargaining.

Abood, 431 U.S. at 224.

But this argument is a non sequitur. The state’s

interest in avoiding a multiplicity of unions justifies

(at most) the proposition that there should be only one

union. It does nut justify the entirely different propo-

sition that objectors should be forced to subsidize the

speech of that one union. Put simply, “a union’s status

as exclusive bargaining agent and the right to collect

an agency fee from nonmembers are not inextricably

linked.” Harris, 134 S. Ct. at 2640.

In an effort to show why the state’s interest in

having a single union justifies compelled agency fees,

defenders of Abood have argued that the single union

would become insolvent without the funding provided

by such fees. This argument is mistaken.

First, Abood’s defenders bear the burden of sup-

porting their claims with evidence, since “mere specu-

lation” cannot justify limiting speech. United States v.

NTEU, 513 U.S. 454, 473 (1995). Yet public-sector un-

ions have never offered any empirical evidence that

they will wither away without compulsory fees.

The Yohn lawsuit currently pending in California

confirms this point. In that case, we asked the unions

whether loss of compulsory fees really would make

them insolvent or preclude them from serving effec-

20

tively as exclusive bargaining representatives. In re-

sponse, the unions never asserted (much less provided

any evidence) that any such result would occur. They

instead said that, if Abood falls, “some number” of

workers will refuse to pay dues and that this number

“may” be “substantial.” NEA Response to Interroga-

tory No. 13. They made no effort to quantify this short-

fall or to suggest that it would impede them from ef-

fectively representing employees.

This is nothing new. Public-sector unions had a

chance in Harris to show that “the cited benefits” of

exclusive bargaining “could not have been achieved if

the union had been required to depend for funding on

the dues paid by those ... who chose to join.” 134 S. Ct.

at 2641. They had the same chance again in Frie-

drichs. They had the same chance once more in Yohn,

and once more after that in this case. Each time, how-

ever, “no such showing has been made.” Id. at 2641.

That speaks volumes.

Second, experience refutes the unions’ claims. The

Federal Government and most states already allow

emp!,ees to decide for themselves whether to pay un-

ion fees. Yet despite the inability to extract fees from

dissenters, public-sector unions remain vibrant at the

federal level and in all such states.

Experience also shows that nonmember fee-pay-

ers constitute only a tiny fraction of the people who

financially support public-sector unions. For example,

we learned in Yohn that, in 2016-17, the National Ed-

ucation Association received fees from 3 million mem-

bers, but only 90,000 nonmembers (or 3 percent of the

total number of workers). NEA Response to Interrog-

atory No. 16. In the same period, the California Teach-

ers Association collected fees from around 315,000

21

members, but only 25,000 nonmembers (or 7 percent

of the total). CTA Response to Interrogatory No. 18.

The loss of fees from such a miniscule part of the work-

force will not imperil unions’ continued existence.

Indeed, even if there were a massive increase in

the number of nonmembers, and even if all of these

nonmembers decide not to pay fees, unions could still

continue to do their jobs effectively. After all, at the

federal level, around two-thirds of covered employees

pay no union dues. Harris, 134 S. Ct. at 2657 n.7 (KA.

GAN, J., dissenting). But public-sector unions ably rep-

resent their federal bargaining units.

Unions could in all events make up for any short-

fall by redirecting funds from express political activity

to collective bargaining. Unions spend vast sums on

campaigning; just consider the $12 million that the

union in Knox budgeted to “fight back” against a Re-

publican governor's effort to limit the union’s ability

to extract coercive fees. 567 U.S. at 306. Unions can

more than make up for the loss of compulsory fees by

spending less money at the polling place and more

money at the workplace.

Third, common sense likewise belies any claim

that public-sector unions will collapse unless propped

up by compulsory fees. If public-sector workers really

consider unions’ agenda and services beneficial and

worthy of support, it stands to reason that “a high per-

centage” of public-sector workers would “bec[ome] un-

ion members and willingly pay union dues.” Harris,

134 S. Ct. at 2641. That suffices to keep the union sol-

vent. There is no need (and thus no justification) for

the further step of extracting compulsory fees from

those who oppose the unions.

22

Ultimately, what the unions really seem to fear is

not that the loss of agency fees will hamper their pro-

vision of services, but, instead, that it will spur debate

about the value of those services. In Yohn, the unions

speculated that “dark-money groups” will “attempt to

persuade” employees to quit unions and to refuse to

pay dues. NEA Response to Interrogatory No. 14.

Under the First Amendment, however, more de-

bate is a good to be welcomed, not an evil to be

avoided. Perhaps outside groups will indeed try to per-

suade employees to stop paying dues, but unions re-

main free to respond to such speech with more speech

of their own. If unions really do achieve all the bene-

fits they claim to achieve, they should have little trou-

ble persuading workers to continue supporting them.

Regardless, a government cannot justify compulsory

subsidization of unions on the grounds that it wishes

to avoid public debate about the value of those unions.

B. Concerns About “Free Riding” Do Not

Justify Compulsory Union Fees

1. Defenders of Abood have also claimed that

states may force dissenters to pay dues in order to pre-

vent the dissenters from “free riding” on the union’s

efforts. But this rationale, too, is wrong.

“Free-rider arguments ... are generally insuffi-

cient to overcome First Amendment objections.” Knox,

567 U.S. at 311. Lots of groups provide benefits for

people who are not members, but it does not follow

that the government may coerce the beneficiaries to

subsidize the groups’ activities. For example, the Gov-

ernment may not force hikers to fund the Sierra Club,

businesses to fund the Chamber of Commerce, or doc-

tors to fund the American Medical Association, even

23

though they might well benefit from these organiza-

tions’ activities. So too, the Government may not force

objecting employees to fund a public-sector union, re-

gardless of whether the employees benefit from the

union’s activities.

Indeed, the free-rider rationale is far weaker in

this setting than it is elsewhere. No law compels un-

ions to represent nonmembers; unions may engage in

“members only” bargaining. Consolidated Edison Co.

v. NLRB, 305 U.S. 197, 236 (1938). Unions consciously

choose to represent nonmembers in exchange for

recognition as exclusive barga ning representatives.

This recognition subjects the nonmembers to the un-

ions’ control, depriving them of their right to negotiate

independently with their employer and forcing them

to adhere to the employment policies that the unions

want included in the collective bargaining agreement.

It is thus Orwellian to describe the objectors here

as “free riders.” As JUSTICE KENNEDY aptly put it, it

would be more accurate to describe the objectors as

“compelled riders for issues on which they strongly

disagree.” Transcript of Oral Argument 45, Friedrichs

v. California Teachers Association, 136 S. Ct. 1085

(2016) (No. 14-915). The government’s decision to

force a nonmember to live by union policies to which

he objects hardly justifies the additional restriction of

forcing him to subsidize the negotiation of those poli-

cies.

2. Abood’s defenders have nonetheless claimed

that the free-rider rationale uniquely permits compul-

sion to speak here, because the exclusive bargaining

representative has a duty to represent nonmembers.

Where the government requires a union to provide

services to nonmembers (the theory goes), it may also

24

require the nonmembers to pay the cost. This ra-

tionale is incorrect for a number of reasons.

There is, again, no duty to represent nonmembers:

No law requires any union to represent workers that

it does not want to represent. Public-sector unions

have voluntarily assumed this “duty” in exchange for

the power of exclusive representation.

Indeed, the “duty” of nondiscrimination is an es-

sential limitation on the unions’ voluntarily assumed

power to control nonmembers’ employment conditions.

Having insisted on exclusive authority to negotiate on

behalf of members and nonmembers alike, the union

cannot reasonably insist that it should also be allowed

to discriminate against those nonmembers.

In fact, such an inequitable arrangement—in

which a union gets fiduciary powers over nonmembers

but owes no fiduciary duties to them—would raise

grave constitutional concerns. In Steele v. Louisville &

Nashville Railroad, 323 U.S. 192 (1944), the Court ex-

plained that an exclusive representative “is clothed

with power not unlike that of a legislature,” and so has

“an affirmative constitutional duty” to refrain from

discriminatlingl against ... those for whom it legis-

lates.” Id. at 198. “Constitutional questions arise” if a

statute gives a union exclusive authority to speak on

behalf of a worker, yet “without any commensurate

statutory duty” to refrain from discriminating against

that worker. Id.

Unions are not entitled to compensation for ful-

filling this duty. Refraining from discrimination

against nonmembers, such as the black employees in

Steele, is not a favor that burdens the union; it is, in-

25

stead, the nonmembers’ constitutional due. In none-

theless insisting on payment for refraining from dis-

crimination, a union in effect says to the objector:

“Even though you disagree with all of our policies,

we've made sure that only our union can represent

you during your negotiations with your employer.

Now pay up, because if you don’t, we'll use our power

to see that you get paid less than everybody else.” This

kind of claim—which resembles a demand for protec-

tion money—can hardly justify abridging the non-

members’ speech rights.

Underscoring these points, the nondiscrimina-

tion duty imposes no meaningful burden on unions

and provides no meaningful benefit to nonmembers.

The duty does not require unions to advocate for the

views held by nonmembers. It does not even require

them to consider the views of nonmembers. To the con-

trary, unions remain free to strike bargains that ele-

vate their own policies over those of nonmembers. The

union need only refrain from making agreements that

discriminate on their face against nonmembers.

Our experience in YoAn illustrates these points.

During discovery, we asked the defendant unions to

identify all instances in which they had even con-

sulted with a nonmember about the terms of the col-

lective bargaining agreement. In response, they

acknowledged that they had never “undertaken any

poll, survey, or other formal outreach” seeking the

opinions of nonmembers. NEA Response to Interroga-

tory No. 10. More generally, they could not identify a

single dollar they had spent because of the “nondis-

crimination duty,” since they dſo] not maintain rec-

ords that track or report the total amount or percent-

26

age of funds” they spend “in connection with repre-

senting nonmembers.” CTA Response to Interrogatory

No. 11.

What is more, the “burden” of nondiscrimination

is so trivial and commonplace that advocacy groups

(even unions) already voluntarily refrain from dis-

criminating. The AMA and AARP do not seek higher

Medicare payments to members than to nonmembers.

Unions lobbying state legislatures (a context in which

there is no nondiscrimination duty) do not seek

higher statutory overtime rates for members than for

nonmembers. The reality that unions and other

groups voluntarily refrain from discriminatory advo-

cacy vividly demonstrates both that the “duty” to do

so imposes no meaningful burden and that such non-

discrimination does not distinguish unions from other

advocacy organize tions. The “duty” thus cannot ex-

plain why unions should be allowed to extract fees

from “free riders,” when no other advocacy group can.

3. Perhaps recognizing that the nondiscrimina-

tion duty has no effect on collective-bargaining nego-

tiations, defenders of Abood have claimed that their

obligation to handle the grievances of nonmembers

entitles them to fees. Not true.

To begin with, grievance representation in fact

helps the union rather than the objector. This repre-

sentation gives the union control over the grievance

process: The union gets to decide which grievances to

press, and in doing so it may subordinatſe]l' the in-

terests of the individual” nonmember to “the collective

interests” of the bargaining unit. Alexander v. Gard-

ner-Denver Co., 415 U.S. 36, 58 n.19 (1974). Mean-

while, grievance representation has little value for the

27

nonmember. Such representation only covers griev-

ances under the collective bargaining agreement—the

very thing the dissenting nonmember may find objec-

tionable. A State may not require a nonmember to pay

a union to help him enforce a provision that he does

not agree with in the first place.

In all events, any restriction of speech must be

“carefully tailored” to the government’s interests.

Knox, 567 U.S. at 313. But nobody suggests that

states have carefully tailored agency fees to grievance

handling. Quite the contrary, the costs of grievance

representation represent at most a tiny percentage of

the total agency fee. Indeed, in Yohn, the unions could

not even say if they had spent any money on “repre-

senting nonmembers ... in grievance proceedings.”

CTA Response to Interrogatory No. 11. Asking griev-

ance representation to support the compelled agency

fee is thus like asking a Lilliputian to support Gulliver.

III. If The Court Overrules Abood, It Should Also

Clarify That Unions May Collect Fees From

Nonmembers Only With Their Affirmative

Consent

1. If this Court decides to overrule Abood, it

should also clarify what procedures unions must fol-

low when collecting fees from nonmembers. Doing so

is a practical necessity.

In Teachers v. Hudson, 475 U.S. 292 (1986), this

Court set out the procedures that unions must follow

if they wish to collect ordinary annual assessments.

Each year, the union tallies up its “chargeable” ex-

penses (expenses related to collective bargaining) and

its “non-chargeable expenses” (expenses related to lob-

bying). The union then sends nonmembers a “Hudson

28

notice,” instructing them to pay the “chargeable” por-

tion of the fee and inviting them to pay the “non-

chargeable” portion. Id. at 304—09.

If the Court overrules Abood, however, the Hud-

son procedure will become defunct. There will no

longer be a distinction between “chargeable” and “non-

chargeable” expenses; in effect, all expenses will be

non-chargeable.

Consequently, Unions and nonmembers alike

need guidance about what will take Hudson’s place.

Both of these groups need to know what rules unions

must follow going forward when collecting agency

fees. Providing guidance on this point would accord

with the principle that this Court has a “responsibil-

ity” to avoid “halfway decisions,” and that its opinions

should address the “operational question” of how its

rulings should “apply in practice.” Maslenjak v. United

States, 137 S. Ct. 1918, 1927 n.4 (2017).

2. The question of what rule should take Abood s

and Hudson’s place is easy to answer. Like any other

political advocacy group, a public-sector union may

collect donations from nonmembers only by their af-

firmative consent. Just as a state cannot require em-

ployees to “opt out” of donating money to the Demo-

cratic or Republican parties, neither can it do so for

public-sector unions.

This Court has already held that a union’s use of

an opt-out rather than an opt-in scheme for collecting

fees is, itself, “a substantial impingement on First

Amendment rights.” Knox, 567 U.S. at 317. Rightly so.

First, opt-out regimes subject nonmembers to “the

burden” of opting out of making payments to which

29

they object. Id. at 312. In practice, this burden will of-

ten be severe, since a union will have an incentive to

make it as difficult as possible for someone to refuse

to fund its activities. Second, opt-out regimes distort

the marketplace of ideas. “An opt-out system creates

a risk that the fees paid by nonmembers will be used

to further political and ideological ends with which

they do not agree.” Id. After all, as modern social sci-

ence demonstrates, “people have a strong tendency to

go along with the status quo or default option.” Rich-

ard H. Thaler & Cass R. Sunstein, Nudge 8 (2008).

Opt-out regimes thus allow governments to exploit in-

ertia and ignorance in order to promote their pre-

ferred ideas. Third, opt-out regimes contradict the

principle that courts “do not presume the acquies-

cence in the loss of fundamental rights.” Knox, 567

U.S. at 316.

As a result, an opt-out requirement—like any

other “impingement” on freedom of speech—complies

with the First Amendment only if it survives exacting

scrutiny. Or, as the Court put it in Knox and Hudson,

“any procedure for exacting fees from unwilling con-

tributors must be ‘carefully tailored to minimize the

infringement of free speech rights.” Knox, 567 U.S. at

313 (quoting Hudson, 475 U.S. at 303).

Opt-out requirements cannot satisfy this test. In

Yohn, we asked the unions whether they could come

up with any justification for a default rule under

which every nonmember presumptively subsidizes

unions. The unions first asserted that an opt-out re-

gime “reduces administrative burdens for unions.”

CTA Response to Interrogatory No. 17. But this justi-

fication is plainly inadequate. For one thing, the un-

ions have not even attempted to describe in general

30

terms what sort of unidentified “administrative bur-

dens” an opt-in regime would purportedly impose. And

it is not obvious what these administrative burdens

would be. Either way, unions would have to send non-

members forms notifying them of their rights; either

way, unions would have to review the responses before

deducting any dues from the nonmembers’ paychecks.

In any event, “the First Amendment does not permit

the State to sacrifice speech for ef* ~iency.” Riley v. Na-

tional Federation of the Blind, 487 U.S. 781, 795

(1988). Even if an opt-out system were more efficient

than an opt-in system, the government still would

have no authority to adopt it.

The unions in bonn also claimed that an opt-out

regime “comport(s] with the preferences of most work-

ers.” CTA Response to Interrogatory No. 17. This

wholly unsupported claim defies common sense. As

this Court has already recognized, “the probable pref-

erenc[e] of most nonmembers” is to withhold fees, not

to pay them. Knox, 567 U.S. at 312. After all, it is

“likely that most employees who choose not to join the

union that represents their bargaining unit prefer not

to pay the full amount of union dues.” Id. In sum, un-

ions have come up with no cognizable justification at

all for an opt-out requirement.

More generally, it is obvious that requiring em-

ployees to “opt-out” of subsidizing political activity is

inherently unconstitutional. Otherwise, a State could

establish a default rule that one percent of every pub-

lic employee’s wages goes to the Democratic Party, re-

quiring employees to check a box on a form in order to

avoid that deduction. All would agree, however, that

such a scheme violates the First Amendment. Just as

the First Amendment requires an opt-in regime for

31

contributions to political parties, so too it requires an

opt-in regime for contributions to unions. Nothing else

would “avoid the risk” that dissenters’ funds will be

used “to finance ideological activities.” Jd. at 312.

It is true that the Court has previously given im-

plicit approval to opt-out regimes like California’s.

But those earlier cases “have given surprisingly little

attention to this distinction.” Id. Rather, “acceptance

of the opt-out approach appears to have come about

more as a historical accident than through the careful

application of First Amendment principles.” Id. This

Court has never directly decided whether the First

Amendment requires that public employees opt into

subsidizing nonchargeable speech. It is therefore free

to vindicate the important First Amendment interests

at stake in setting the default rule without reconsid-

ering any prior decisions. It should do so now.

3. Finally, an opinion squarely clarifying that

only truly voluntary, “opt-in” fees are permitted will

help ensure that the Court’s ruling does not become a

dead letter. Public-sector unions have been known to

resort to “aggressive” and even “indefensible” ploys to

“collect fees from nonmembers.” Id. at 314. There is

every danger that, unless checked by this Court, they

will engage in such ploys to circumvent the Court’s de-

cision in this case.

To take one example, consider one public-sector

union’s efforts to evade this Court’s decision in Harris

v. Quinn. After the Court decided in that case that

states may not compel homecare providers to pay

agency fees, one union in Washington unilaterally de-

clared every homecare provider in the State to be one

of its members by default. Fisk v. Inslee, No. 16-5889,

Order 2—4 (WD Wash. Oct. 16, 2017). Having done so,

32

it proceeded to collect full dues from these new “mem-

bers”—even though previously, when these homecare

providers were nonmembers, it could collect only a

portion of the dues, representing chargeable expenses.

Id. Making matters worse, a federal district court

then blessed this procedure as lawful. Id. at 5.

To take another example, consider reports that a

public-sector teachers’ union in Minnesota has al-

ready prepared a new dues form “in anticipation of Ja-

nus.” This form “says that the union is authorized to

deduct dues from the teachers’ paychecks.” The form

“also includes the following fine print”:

This authorization shall remain in effect and

shall be automatically renewed from year to

year, irrespective of my membership in the un-

ion, unless I revoke it by submitting written

notice to both my employer and the local union

during the seven-day period that begins on

September 24 and ends on September 30.

Kim Crockett, “Unions Act as if They've Already Lost,

Wall Street Journal (Oct. 2, 2017) (emphasis added).

If this Court overturns Abood, it should not leave

the door open to such evasions.

CONCLUSION

The judgment of the court of appeals should be re-

versed.

DECEMBER 6, 2017

TERENCE J. PELL

MICHAEL E. ROSMAN

CENTER FOR

INDIVIDUAL RIGHTS

1100 Connecticut Ave.

NW

Suite 625

Washington, DC 20036

(202) 833-8400

PAUL B. GREEN

JONES DAY

3161 Michelson Drive

Suite 800

Irvine, CA 92612

(949) 851-3939

33

Respectfully submitted,

MICHAEL A. CARVIN

Counsel of Record

ANTHONY J. DICK

WILLIAM D. COGLIANESE

VIVEK SUR

JONES DAY

51 Louisiana e., NW

Washington, DC 20001

(202) 879-3939

macarvin@jonesday.com

Counsel for Amici Curiae