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

No. 16-1466

a

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 CENTER FOR

CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITIONER

JOHN C, EASTMAN

ANTHONY T. CASO

Counsel of Record

Center for Constitutional!

Jurisprudence

c/o Fowler School of Law

One University Drive

Orange, CA 92866

(877) 855-3330

caso@chapman.edu

Counsel for Amicus Curiae

i

QUESTIONS PRESENTED

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

209 (1977), this Court upheld a state law compelling

public school teachers to either join the teacher's un-

ion or pay the union an “agency fee.” More recently,

this Court criticized the decision in Abood as “ques-

tionable on several grounds” and based on unwar-

ranted assumptions. Harris v. Quinn, 134 S. Ct. 2618,

2632 (2014). Because permitting compelled fees for

what can only be described as political activity strikes

at the core of the First Amendment right meant to pre-

serve “our Nation’s commitment to self-government,”

(Knox v. Service Employees International Union, Local

1000, 567 U.S. 298, 308 (2012)), the question pre-

sented in this case is as follows:

Should the Court overrule its prior decision in

Abood v. Detroit Board of Education and instead hold

that the First Amendment precludes government

mandates that public employees pay a fee to a private

association for purposes of lobbying state and local

elected and administrative officials?

TABLE OF CONTENTS

QUESTIONS PRESENTED .....0..........ccccceeeeeeeeeneeeenees i

FER Ce DETTE Be scescccsnvecsccccensccvescessocesees iii

IDENTITY AND INTEREST OF AMICUS ............... 1

SUMMARY OF ARGUMENT...............:...ccccscssessesseeees 1

IE Sarciinreiniacttitanitiavesentnnnnimninilinnaiainnsienveiiein 2

1. Public-sector “Collective Bargaining” Is

Indistinguishable from Other Lobbying

a bea cettinrctcntbcchaminiimintiplinbnaiscnainimesiiates 2

Il. Compelling Public Employees to Pay

Agency Shop Fees for “Bargaining” Is

Contrary to the Original Understanding

of the First Amendment. ............................ 12

Ill. The Petition Clause Precludes a Finding

that Limiting Competing Voices on a

Matter of Public Interest Is a Government

Interest that Could Support Infringement

of Speech and Association Rights. ............. 15

SIT suisrironrcsneiinindsonmpsnccespmiinentintnenpiadinciennien 19

ill

TABLE OF AUTHORITIES

Cases

Abood v. Detroit Board of Education,

Ee es I iiiticecicnstecinnstenctninnnetcntennsnsinn passim

City of Madison, Joint Sch. Dist. No. 8 v. Wisconsin

Employment Relations Comm'n,

ne Ce I hiicihaiiichernscickscssenssintnecasndeeonees 16, 17

E.R.R. Presidents Conference v. Noerr Motor Freight,

Inc.,

I air cereale ecinniatanl 17

Friedrichs v. California Teachers Association,

NG nonin caitnrereneeiteemnsuninenienens 1

Harris v. Quinn,

ee a I III care nscnccnsictectscctionsooseesacesiese i,1,3

Keller v. State Bar,

| | ESSERE ue os, ern ere ei Nusa 12

Knox v. Service Employees International Union,

Local 1000,

Be ie Se I csidscrrocisvtrccnctncisonssins i, 1, 8, 9, 15

Lehnert v. Ferris Faculty Ass’n,

sch aeibiescaibenmninnel 9

Machinists v. Street,

ee Bai titricancnvescticmveccnitncsnisoncdiideneeis 5, 8

McIntyre v. Ohio Election Comm'n,

Ls RRL ET ee 12

Miller v. Airline Pilots Ass'n,

BD Fe BEI Gk Ge BE iv vvccnsccnccccccecescccccsevceee 7

iv

Minnesota State Bd for Cmty Colleges v. Knight,

REE Ee ARR a te een 16, 17

New York Times Co. v. Sullivan,

RSS es ee Na 12

Pacific Gas & Electric Co.,

I a cessaranentiiats 13

United States v. Cruikshank,

I a stare aipabiaashindiadl 16

Other Authorities

Nici ccciieaepdichdnesiipetaniomntetsonies 12

Big Money Talks, California’s Billion Dollar

Club, Cal. Fair Political Practices Comm’n

Blume, Howard & Poston, Ben, How L.A.’s school

board election became the most expensive in U.S.

history, L.A. Times (May 21, 2017, 4:00 AM)....... 10

Brown, Nick, Puerto Rico’s other crisis: impoverished

pensions, Reuters (Apr. 7, 2016) .......................0000- 4

Christie, Jim, Stockton, California files for

bankruptcy, Reuters (June 28, 2012, 7:46 PM) ..5, 6

Continental Congress, Declarations at Resolves, 14

October 1774, in 5 THE FOUNDERS’

NTS Se Ns Ra BEES SpE 17

Down and Out in Detroit, Wall St. J. (uly 18, 2013,

TEE EN eee eS eee a RON 5

Gely, Rafael, et al., Educating the United States

Supreme Court at Summers’ School: A Lesson on

the “Special Character of the Animal”, 14 Emp.

Rights & Emp. Pol’y J. 93 (2010)............................ 9

Vv

History of Congress, February, 1799........................ 12

Jefferson, Thomas, Letter to Edward Carrington

(1787), in 5 The FOUNDERS’ CONSTITUTION........... 14

Jefferson, Thomas, A Bill for Establishing Religious

Freedom (1779), in 5 THE FOUNDERS’

ERE He IS Rt SA ao 12, 13

Jefferson, Thomas, First Inaugural Address (1801),

in 5 THE FOUNDERS’ CONSTITUTION. ............00.0000008 13

Jefferson, Thomas, Instructions in the Virginia

Convention to the Delegates to Congress, August,

1774, in 5 THE FOUNDERS’ CONSTITUTION............. 17

Knox v. Service Employees International Union,

Local 1000, Supreme Court No. 10-1121, Brief for

FT cttcnntnocisdgliisdesetsetbisdpnestictesstdaesmndescentiasats 15

Lichterman, Joseph & Woodall, Bernie, /n largest-

ever U.S. city bankruptcy, cuts coming for Detroit

creditors, retirees, Reuters (Dec. 3, 2013) ............... 4

Madison, James, MEMORIAL AND REMONSTRANCE

AGAINST RELIGIOUS ASSESSMENTS, in 5 THE

POUNDER CORMBTETU TION, ...cccccccccccssccscccoscccccccsscess 13

Madison, James, Public Opinion (1791), in 2 THE

POURDIEE CORT ETU TIE ec ccccccccosccscccscccssccsescscscses 14

McGinnis, John O. & Schanzenbach, Max, The Case

Against Public Sector Unions, 162 Hoover Inst.

fe ES RRS eee 10

Plumer, Brad, Detroit’s pension problems, in one

chart, Wash. Post (July 19, 2013) .................0.....06. 5

vi

Rawle, William, A VIEW OF THE CONSTITUTION OF THE

UNITED STATES 124 (1829) in 5 THE FOUNDERS’

TELS NTA PS aI aN Ae oy EIST 17

Roosevelt, Franklin D., Letter to Luther C. Steward,

President, National Federation of Federal

Employees, Aug. 16, 1937...............cccccccssecesseeseereeees 8

Seelye, Katharine Q., Detroit Census Confirms a

Desertion Like No Other, N.Y. Times (Mar. 22,

PIPL cncinciviinkaicissscdainpascsiendiiincniasiaiidubeiniibetmnbabsiadeasbeuitabiaaedi teat 5

Story, Joseph, COMMENTARY ON THE CONSTITUTION in

5 THE FOUNDERS’ CONSTITUTION ..............200cc0000000 17

Summers, Clyde, Public Sector Bargaining: A

Different Animal,

5 U. Pa. J. Lab. & Emp. L. 441 (2008).................... 3

Top Contributors to Primarily Formed Committees:

November 2016 General Election .................0....<+- 11

Walsh, Mary Williams, Jn Puerto Rico, Teachers’

Pension Fund Works Like a Ponzi Scheme, N.Y.

ee GS, Ge, Be Piiccicncncininiersdlgtetipaaninstaniinaenneiane 4

Walsh, Mary Williams, Puerto Rico Declares a Form

of Bankruptcy, N.Y. Times (May 3, 2017)............... 3

Wollan, Malia, Years of Unraveling Then Bankruptcy

for a City, N.Y. Times (July 18, 2012)..................... 6

Rules

Us Se I Ee ecccsssacnconcitcscvidiiivcctediionadibsemamainass l

UD. COR, GRIN BIW Ain sccceictesnccivuinsstiarinssecintichangiaanaaaneial 1

l

IDENTITY AND INTEREST OF AMICUS

The Center for Constitutional Jurisprudence’ is

the public interest law arm of the Claremont Insti-

tute, whose stated mission is to restore the principles

of the American founding to their rightful and preemi-

nent authority in our national life. This includes the

protections for freedom of speech, association, and pe-

tition enshrined in the First Amendment. The Center

has previously appeared before this Court as amicus

curiae in several cases addressing the constitutional-

ity of compelled speech and association, including

Friedrichs v. California Teachers Association, 136 S.

Ct. 1083 (2016); Harris v. Quinn, 134 S. Ct. 2618

(2014); and Knox v. Service Employees International

Union, Local 1000, 567 U.S. 298 (2012).

SUMMARY OF ARGUMENT

“Collective bargaining” by public sector employee

unions is an inherently political activity. The union

lobbies legislative and elected government officials in

pursuit of its policy and economic goals in the same

manner as any other special interest group. It differs

only in the fact that state law allows the union to exact

compelled dues from nonmembers. This Court upheld

the constitutionality of this arrangement in Abood,

but has since questioned that ruling. Abood should be

overruled because the decision failed to address the

' Pursuant to this Court's Rule 37.3(a), this amicus brief is filed

with the consent of the parties. Pursuant to Rule 37.6, Amicus

Curiae affirms that no counsel for any party authored this brief

in whole or in part and that no person or entity other than Ami-

cus Curiae, its members, or its counsel made a monetary contri-

bution to fund the preparation and submission of this brief.

2

underlying purposes of the Speech Clause of the First

Amendment. Further, the Abood court failed to ana-

lyze the claimed government purpose behind the in-

fringement. The stated purpose was to limit the num-

ber of individuals and organizations that petitioned

government on the issues surrounding public employ-

ees. While government officials may choose with

whom they will meet, the Petition Clause of the First

Amendment precludes a legitimate interest in limit-

ing those who may speak to government on a matter

of public interest. Thus, limiting the number of inter-

ested citizens and groups who may speak on a matter

of public concern cannot serve an interest that justi-

fies infringement of speech and association rights.

ARGUMENT

I. Public-sector “Collective Bargaining” Is In-

distinguishable from Other Lobbying Activ-

ities.

Forty years ago, the Court in Abood founded its

holding on several conceptual errors. First, the Court

assumed that “[p]ublic employees are not basically

different from private employees.” Abood, 431 U.S. at

229. But public employees are different from private-

sector employees. And, more importantly, public em-

ployers are fundamentally different from private-sec-

tor employers. Ignoring these important differences

led to a ruling that authorized infringement of non-

member First Amendment liberties.

Contracts between private employers and unions

representing private-sector employees are private de-

cisions generally disciplined by market forces. Clyde

3

Summers, Public Sector Bargaining: A Different Ani-

mal, 5 U. Pa. J. Lab. & Emp. L. 441 (2003). Errors in

analysis by the employer can lead to the employer go-

ing out of business. That result is tempered, however,

by the fact that competitors in the private sector can

continue to provide the goods and services or new

firms can rise to fill the gaps. Competing firms can

also provide new employment opportunities for work-

ers of an employer whose private business has closed.

By contrast, public-sector contracts are not pri-

vate decisions. The contract itself is an instrument of

government. /d. at 442. The decision to spend more

money on a particular public program means either

higher taxes or cuts to other public services. Im-

portantly, a state cannot go out of business because of

mushrooming costs of public employee wages and ben-

efits. See Harris, 134 S. Ct. at 2632 n.7.

Like Illinois and other states, the territory of

Puerto Rico is facing a debt crisis but cannot declare

bankruptcy. Congress is now struggling to deal with

Puerto Rico’s debt crisis. The federal government

passed a law last year called Promesa to give the is-

land a special debt restructuring process. Mary Wil-

liams Walsh, Puerto Rico Declares a Form of Bank-

ruptcy, N.Y. Times (May 3, 2017).2 The island faces

$123 billion in debt, including $49 billion in unfunded

pension obligations. Jd. Puerto Rico owes retired pub-

lic workers over $40 billion and more than $13 billion

of that is owed to retired teachers. Mary Williams

Walsh, In Puerto Rico, Teachers’ Pension Fund Works

2 Available at https://www.nytimes.com/2017/05/03/business/

dealbook/puerto- rico-debt. html.

4

Like a Ponzi Scheme, N.Y. Times (Mar. 8, 2017).®

Working teachers in Puerto Rico cannot expect to get

back the money t):ey have contributed to the pension

fund because most of the money they pay into the fund

is immediately paid out to retirees, and the fund is ex-

pected to run out of cash entirely next year. Jd. The

lack of any effort by lawmakers to reform teachers’

pensions in Puerto Rico has been attributed to the

great lobbying power of teacher groups. Nick Brown,

Puerto Rico’s other crisis: impoverished pensions,

Reuters (Apr. 7, 2016).4 Although Congress has en-

acted special relief for Puerto Rico, there is no guar-

anty that it will do so for Illinois, California, Michi-

gan, or other states with large unfunded pension obli-

gations.

Cities, on the other hand, can declare bank-

ruptcy. Detroit filed the largest-ever bankruptcy in

our nation’s history in July 2013. Joseph Lichterman

& Bernie Woodall, Jn largest-ever U.S. city bank-

ruptcy, cuts coming for Detroit creditors, retirees, Reu-

ters (Dec. 3, 2013).5 The city faced an estimated debt

of $18.5 billion and struggled to provide basic public

amenities, like police and fire services, to its 700,000

residents. Id. Detroit's deterioration was marked by

78,000 abandoned buildings and 40 percent of its

streetlights going dark. Id. Twenty-five percent of

Detroit's population, a total of 237,500 of its residents,

®’ Available at https://www.nytimes.com/2017/03/08/business/

dealbook/puerto-rico-teacher-pensions. html.

‘ Available at https://www.reuters.com/investigates/special-re-

port/usa-puertorico-pensions/.

®° Available at http://www.reuters.com/article/us-usa-detroit-

bankruptcy -judge/in-largest-ever-u-s-city-bankruptcy-cuts-com-

ing-for-detroit-creditors-retirees-id USBRE9B20PZ20 131203.

5

fled the city between 2000 and 2010. Katharine Q.

Seelye, Detroit Census Confirms a Desertion Like No

Other, N.Y. Times (Mar. 22, 2011).6 Detroit's financial

woes had, in large part, to do with unrealistic pension

promises to city employees created in collective bar-

gaining. The Wall Street Journal explained: “Mo-

town’s problems have been mounting for six decades

and are the result of economic decline and rule by gov-

ernment unions. City Hall made unsustainable prom-

ises to public employees so retirement obligations now

constitute half of its $18.5 billion debt.” Down and

Out in Detroit, Wall St. J. (July 18, 2013, 8:08 PM).’

Although Detroit borrowed $1.4 billion in 2005 “to

plug a hole in its pension fund,” everything collapsed

under poor management and the 2008 financial crisis.

Brad Plumer, Detroit's pension problems, in one chart,

Wash. Post (July 19, 2013).

The City of Stockton, California declared insol-

vency one year before Detroit in June 2012. Jim

Christie, Stockton, California files for bankruptcy,

Reuters (June 28, 2012, 7:46 PM).° Stockton’s top

creditor was the California Public Employee's Retire-

ment System, which manages the city’s pension plan.

The system claimed $147.5 million for unfunded pen-

sion obligations. /d.

® Available at www.nytimes.com/201 1/03/23/us/23d. troit. html.

TAvailable at https://www.wsj.com/articles/SB 1000142412788

7324448104578.

® Available at https://www.washingtonpost.com/news/wonk/

wp/2013/07/19/detroits-pension-problems-in-one-

chart/?utm_term=.e60f2e7646a7.

® Available at https://www.reuters.com/article/us-stockton-bank-

ruptcy/stockton-california-files-for-bankruptcy-

id USBRE85S05 1 20120629.

6

The public employee has dual interests that may

well be in conflict. As an employee, the worker may

enjoy the benefit of more salary, richer benefits, and a

pension. As a citizen and taxpayer, however, the em-

ployee’s interest may well be very different. The citi-

zen may worry about whether restrictions limiting

competition for his or her job will have an impact on

public health or leave some children without the care

they need. There is also the danger that a mandated

pension may never be paid out if there is a bankruptcy

at the city level. He or she may also worry about the

public services that must be cut to finance higher

wages for his or her job.

This happened in Stockton, California. City lead-

ers overspent funds and took on the crushing costs of

pension obligations and $417 million in retiree health

benefits. Malia Wollan, Years of Unraveling Then

Bankruptcy for a City, N.Y. Times (July 18, 2012).'°

Stockton had to cut 25 percent of its police officers, 30

percent of its fire department, and 40 percent of all

other city employees. Jd. These cuts were made

against the backdrop of serious threats to public

safety. There was a record 58 homicides in 2011 and

35 homicides halfway through 2012. Jd. This rise in

violent crime stopped city leaders from cutting more

of the police budget. Christie, supra. To leave its pub-

lic employee pensions untouched and to salvage the

city’s public services, Stockton chose to cancel its

promise to its retiree to provide a medical program to

them. Even with these cuts, the city defaulted on

0 Available at http:/Awww.nytimes.com/2012/07/19/us/years-of-

unraveling-then-bankruptcy-for-a-city. html.

7

more of its municipal bonds — an investment often re-

lied on for private sector pensions. /d.

These decisions are not “private contract” choices.

Instead, they are the type of decisions in which all cit-

izens expect to have a voice. The District of Columbia

Circuit noted this problem two decades earlier in Mil-

ler v. Airline Pilots Ass’n, 108 F.3d 1415 (D.C. Cir.

1997). The precise issue presented was whether the

union could compel dissenters to contribute toward

the cost of lobbying on safety related issues. /d. at

1422. The court explained that while all pilots may be

interested in airline safety, they will not all agree on

the cost of that safety: “The benefits of any regulation

include trade-offs.” Jd.

That issue of trade-offs is present in every lobby-

ing campaign by public employee labor unions. Teach-

ers may want higher pay, but are they willing to ac-

cept the trade-offs of higher taxes, reduced public ser-

vices, possibly endangered pension security, and

larger class sizes? How is it that only one side of the

debate, the public employee union’s position, is privi-

leged by the ability to coerce payments from dissent-

ers to support the lobbying?

The conflict between the personal interests of

public employees and the interests of the taxpaying

public is why, in a letter on the collective bargaining

of federal employees, President Franklin Roosevelt as-

serted “meticulous attention should be paid to the spe-

cial relationship and obligations of public servants to

the Government.” Letter to Luther C. Steward, Pres-

ident, National Federation of Federal Employees,

8

Aug. 16, 1937.'' Roosevelt argued: “All Government

employees should realize that the process of collective

bargaining as usually understood cannot be trans-

planted into the public service.” Jd. Roosevelt was

worried about whether public employees would be

tempted to be more loyal to their union than to the

government, despite the paramount obligation of pub-

lic employees to serve the interests and welfare of the

“whole people.” Jd.

President Roosevelt's concerns remain valid. Be-

cause public employees are required, as a condition of

continued employment, to pay a private association to

lobby elected and administrative state and local offi-

cials, the public employee union is given immense po-

litical power at the expense of all other interest

groups. It is time, therefore, to pay meticulous atten-

tion to this arrangement.

This Court recognized that federal law could not

empower labor unions to force nonmembers to finan-

cially support political and ideological causes that are

unrelated to the costs of collective bargaining. Ma-

chinists v. Street, 367 U.S. 740, 749-50 (1961). But

that distinction, borrowed uncritically by the Abood

Court, is nonsensical in the context of public labor un-

ions because collective bargaining in the public sector

is inherently political. The unions in Knox had even

argued that “all funds,” including campaign support

for ballot questions, “spent on ‘lobbying...the elec-

torate’ are chargeable” because these expenditures

were “germane” to the public employer's contracts

‘| Available at www-.presidency.ucsb.edu/ws/index.php?

pid=15445.

9

and, thus, related to collective bargaining. Knox, 567

U.S. at 320. But the Court rejected that argument,

stating “lobbying...the electorate’ is nothing but an-

other term for supporting political causes and candi-

dates.” Id.

The Knox ruling was not the first time this Court

recognized the difficulty of distinguishing between

“collective bargaining” and lobbying in the public sec-

tor. In Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507,

519 (1991), the Court noted that “[t}he dual roles of

government as employer and policy maker...make the

analogy between lobbying and collective bargaining in

the public sector a close one.” Although the Court

tried to draw a line between compelling dissenting

employees to finance lobbying the government to win

ratification of a negotiated agreement and other lob-

bying, there is no line between collective bargaining

and politics. Jd. at 520; see Rafael Gely, et al., Edu-

cating the United States Supreme Court at Summers’

School: A Lesson on the “Special Character of the An-

imal”, 14 Emp. Rights & Emp. Pol’y J. 93 (2010). This

is because when a public employee union bargains for

higher wages and other benefits, it is arguing for a

public policy that devotes more resources to programs

staffed by its members at the expense of other pro-

grams.

Public employee unions have already established

themselves as a major political force, “tak{ing] many

positions during collective bargaining that have pow-

erful political and civic consequences.” Knox, 567 U.S.

at 310. This Court should consider the impact on gov-

ernment structure of allowing these unions to con-

tinue to coerce payments from dissenting employees.

10

Public entities are in danger of capture by public

sector unions in pursuit of their limited, short-term

political goals. This danger recently presented itself

in last spring's Los Angeles Board of Education races

in California. United Teachers Los Angeles was the

top spending union group in these elections, paying

about $4.13 million. Howard Blume & Ben Poston,

How L.A.’s school board election became the most ex-

pensive in U.S. history, L.A. Times (May 21, 2017, 4:00

AM).!2 Much of that came from other teachers unions,

including the American Federation of Teachers, the

National Education Association, and the California

Teachers Association, contributing $1.2 million,

$700,000, and $250,000, respectively. Jd. Because

public employee unions can seek to take over the pub-

lic agencies they lobby, the dissenting employee as cit-

izen and taxpayer has special reason to be concerned.

The government cannot be responsive to the citizen

and taxpayer when the interests of public-sector labor

unions are driving public policy.

Member dues (both voluntary and coerced) allow

public employee unions to amass significant resources

to be employed in political campaigns. John O.

McGinnis & Max Schanzenbach, The Case Against

Public Sector Unions, 162 Hoover Inst. Pol’y Rev.

(Aug. 1, 2010).'* In California, for example, a study

by the California Fair Political Practices Commission

showed that, in a 10-year period between 2000 and

2009, the California Teachers Association was the top

'2 Available at http://www.latimes.com/local/la-me-edu-school-

election-money-20170521-htmlistory. html.

'S Available at https://www.hoover.org/research/case-against-

public-sector-unions (last visited Oct. 21, 2017).

1]

spending political organization in the state by a wide

margin. Big Money Talks, California’s Billion Dollar

Club, Cal. Fair Political Practices Comm’n (Mar.

2010) at 10.'4 The public teachers union spent more

than $200 million on political campaigns, ballot initi-

atives, and lobbying during that period. Another pub-

lic employee union, the California State Council of

Service Employees, ranked number two, spending

$107 million in the same period. /d. at 10.

The California Teachers Association is an exam-

ple of a public union flexing its financial muscle and

influencing state politics. Sometimes called Califor-

nia’s “fourth branch of government,” the powerful

public teachers union spent more than $21 million in

2016 to successfully sponsor a ballot initiative to ex-

tend a sales and income tax increase. Top Contribu-

tors to Primarily Formed Committees: November 2016

General Election.'®

This great political power of public employee un-

ions is made possible in part by rulings of this Court

that allow these unions to compel dissenters (as a con-

dition of continued public employment) to finance the

overt political activities of tre unions. There is no “col-

lective bargaining” with regard to public employees.

There is only political lobbying of elected legislative

and executive officials for scare state resources.

‘4 Available at www.fppc.ca.gov/content/dam/fppe/docu-

ments/Education-External-Division/Big_Money_Talks.pdf.

‘6 Available at www.fppc.ca.gov/transparency/top-contribu-

tors/nov-16-gen/nov-16-gen-v2. html.

12

Il. Compelling Public Employees to Pay

Agency Shop Fees for “Bargaining” Is Con-

trary to the Original Understanding of the

First Amendment.

Evidence of congressional intent or ratification

arguments concerning the Free Speech Clause is

scarce, at best. There was clear consensus that the

measure prohibited “censorship,” but there was de-

bate about the extent to which the government could

punish speech after it was published. That debate is

revealed in the sources recounting the debates over

the Sedition Act of 1798. See History of Congress,

February, 1799 at 2988; New York Times Co. v. Sulli-

van, 376 U.S. 254, 275 (1964) (quoting 4 Annals of

Congress, p. 934 (1794)). But to determine whether

the founding generation intended the First Amend-

ment to protect against compelled speech we must re-

sort to the “practices and beliefs of the Founders” in

general. See McIntyre v. Ohio Election Comm'n, 514

U.S. 334, 361 (1995) (Thomas, J., concurring).

While there was no discussion of compelled sup-

port for political activity, there was significant debate

over compelled financial support of churches in Mas-

sachusetts and Virginia, the Virginia debate being the

most famous. This Court has often quoted Jefferson’s

argument “That to compel a man to furnish contribu-

tions of money for the propagation of opinions which

he disbelieves and abhors is sinful and tyrannical.”

Thomas Jefferson, A Bill for Establishing Religious

Freedom (1779), in 5 THE FOUNDERS’ CONSTITUTION,

University of Chicago Press (1987) at 77; quoted in

Keller v. State Bar, 496 U.S. 1,10 (1990); Chicago

13

Teachers Union v. Hudson, 475 U.S. at 305 n.15;

Abood, 431 U.S. at 234-35 n.31.

James Madison was another prominent voice in

the Virginia debate, and again this Court has relied

on his arguments for the scope of the First Amend-

ment protection against compelled political support:

“Who does not see...[t]hat the same authority which

can force a citizen to contribute three pence only of his

property for the support of any one establishment,

may force him to conform to any other establishment

in all cases whatsoever?” James Madison, Memorial

and Remonstrance Against Religious Assessments, in

5 THE FOUNDERS’ CONSTITUTION at 82; quoted in Chi-

cago Teachers Union, 475 U.S. at 305, n.15; Abood,

431 U.S. at 234-25 n.31.'6

Although these statements were made in the con-

text of compelled religious assessments, the Court

easily applied them to compelled political assess-

ments in Chicago Teachers Union and Abood. This

makes sense because Jefferson himself applied the

same logic to political debate. In his first Inaugural

Address, Jefferson equated “political intolerance”

with the “religious intolerance” he thought was at the

core of the Virginia debate. Thomas Jefferson, First

‘6 The amount of compelled support is irrelevant to the constitu-

tional injury. As Madison noted, even “three pence” is too much

to compel. Madison, Remonstrance, supra at 82. Jefferson noted

that freedom of conscience is violated when people are taxed to

pay simple living expenses for their own pastors. Jefferson, Re-

ligious Freedom, supra at 77. See also Pacific Gas & Electric Co.

v. Public Utilities Comm'n, 475 U.S. 1, 24 (1986) (Marshall, J.,

concurring).

14

Inaugural Address (1801), in 5 THE FOUNDERS’ CON.

STITUTION at 152. The theme of his address was unity

after a bitterly partisan election, and the goal he ex-

pressed was “representative government” — a govern-

ment response to the force of public opinion. /d.;

Thomas Jefferson Letter to Edward Carrington

(1787), in 5 The FOUNDERS’ CONSTITUTION at 122 (not-

ing, in support of the freedom of the press, “[t]he basis

of our government [is] the opinion of the people”).

Government cannot be responsive to public opinion

unless individuals retain the freedom to reject politi-

cally favored groups,

Madison, too, noted the importance of public

opinion for the individual liberty the Founders sought

to enshrine in the Constitution. “[{P]ublic opinion

must be obeyed by the government,” according to

Madison, and the process for the formation of that

opinion is important. James Madison, Public Opinion

(1791), in 2 THE FOUNDERS’ CONSTITUTION at 73-74.

Madison argued that free exchange of individual opin-

ion is important to liberty and worried that “real opin-

ion” would be “counterfeited.” Jd. But “counterfeited”

opinion is all the government receives from public sec-

tor unions who claim to represent the voice of all the

employees — even those that refuse to join the union.

The voice of the individual is lost when state or

federal law compels him to support a political organi-

zation he opposes. This compulsion is an effective cen-

sor of individual opinion. Instead of being drowned

out by many genuine voices, the individual is forced to

boost the voice of those he opposes or even despises.

He is forced to pay for the counterfeiting of public

15

opinion, distorting democracy, and losing his freedom

in one fell swoop.

Ill. The Petition Clause Precludes a Finding

that Limiting Competing Voices on a Mat-

ter of Public Interest Is a Government In-

terest that Could Support Infringement of

Speech and Association Rights.

As demonstrated above, the practice of public sec-

tor “collective bargaining” today is pure political activ-

ity, indistinguishable from any other single-interest

group lobbying elected and executive officials for a

larger piece of the public finance pie. Indeed, accord-

ing to the Service Employees International Union, the

State of California has expressly recognized that lob-

bying the state legislature is part of the scope of the

union's “bargaining” activities and is fully chargeable

to dissenting nonunion members. Knox v. Service Em-

ployees International Union, Local 1000, Supreme

Court No. 10-1121, Brief for Respondents at 51. Com-

pelled fees for such an activity infringe First Amend-

ment rights of dissenting nonmembers. What possible

government interest can there be to justify such an in-

fringement?

This Court in Abood, again borrowing uncritically

from cases concerning private-sector unions, ruled

that the government interest in “labor peace” justified

infringement on nonmember First Amendment rights

to be free from compelled support of political activity.

Abood, 431 U.S. at 224; see Knox, 567 U.S. at 311. “La-

bor peace” in this context means only avoiding “the

confusion and conflict that could arise if rival teach-

ers’ unions, holding quite different views ... each

16

sought to obtain the employer's [school board's] agree-

ment.” Abood, 431 U.S. at 224. As this Court subse-

quently recognized in Knox, the Abood Court's ac-

ceptance of such a rationale as “justification for com-

pelling nonmembers to pay a portion of union dues”

was “something of an anomaly.” Knox 567 U.S. at 311.

Indeed, it was. Although this Court had previously

noted the weakness of the First Amendment analysis

in the cases leading up to Abood, the Abood Court did

not explore just how anomalous the “labor peace” ra-

tionale really was when applied in the public-sector

context.

Legislative and executive officials can certainly

choose with whom they will meet. Minnesota State Bd

for Cmty Colleges v. Knight, 465 U.S. 271, 284 (1984).

But, they cannot forbid members of the public, includ-

ing dissident, nonunion members, from submitting

their own views on public issues. City of Madison,

Joint Sch. Dist. No. 8 v. Wisconsin Employment Rela-

tions Comm'n, 429 U.S. 167, 175 (1972). This is so

even if it leads to fear of “chaos in labor management

relations.” Jd. at 173.

The right of individuals, either singly or jointly

with others, to present their views to legislative and

executive officials is protected by the First Amend-

ment right of Petition. “The very idea of a govern-

ment, republican in form, implies a right on the part

of its citizens to meet peaceably for consultation in re-

spect to public affairs and to petition for a redress of

grievances.” United States v. Cruikshank, 92 U.S.

542, 552 (1875). As this Court has noted, “the whole

concept of representation depends upon the ability of

17

the people to make their wishes known to their repre-

sentatives.” E.R.R. Presidents Conference v. Nc err

Motor Freight, Inc., 365 U.S. 127, 137 (1961). Any at-

tempt to restrict the right of the people to instruct

their representatives in government raises “serious

constitutional questions.” /d. at 138.

The right of Petition goes to the heart of our re-

publican form of government. Joseph Story, COMMEN-

TARY ON THE CONSTITUTION 3 § 1887 in 5 THE FOUND.

ERS’ CONSTITUTION at 207; William Rawle, A VIEW OF

THE CONSTITUTION OF THE UNITED STATES 124 (1829)

in 5 THE FOUNDERS’ CONSTITUTION 207. The denial of

the right of Petition was one of the grievances leading

up to the Declaration of Independence. See Continen-

tal Congress, Declarations at Resolves, 14 October

1774, in 5 THE FOUNDERS CONSTITUTION at 199;

Thomas Jefferson, Instructions in the Virginia Con-

vention to the Delegates to Congress, August, 1774, in

5 THE FOUNDERS’ CONSTITUTION 199.

Thus, neither the States nor the federal govern-

ment can prohibit individuals or groups from com-

municating with elected and executive officials. City

of Madison, 429 U.S. at 179 n.10. It may well make

the jobs of legislators and executive officials “easier”

and more “peaceful” if they can designate just one or-

ganization to be the “official” voice of a segment of the

public on matter before the government — whether it

be tax policy, health care, or the amount of tax reve-

nues dedicated to public employee salaries. But the

Petition Clause of the First Amendment prevents the

government from restricting other voices.

The interest of the government under the “labor

peace” rationale is to limit the number of voices to

18

which it must listen. This interest seems suspect, at

best, when considered in light of the Petition Clause.

However, here the government seeks to use this inter-

est to justify compelling public employees to give fi-

nancial support to the political and ideological activi-

ties of the public-sector labor union. This question is

one that this Court has regularly recognized as pre-

senting a “constitutional question of the ‘utmost grav-

ity.” Abood, 431 U.S. at 219.

The Court has yet to consider whether a govern-

ment interest in restricting the number of voices to

which it must listen is permissible, let alone im-

portant or compelling. The fundamental error of the

Abood Court was its acceptance, without considera-

tion of this question, that the designation of a single

organization as exclusive representative of a segment

of the public before legislative and executive officials

on a matter of public interest served a government in-

terest of sufficient significance to allow infringement

on the First Amendment rights of nonmembers. The

decision in Abood should be overruled.

19

CONCLUSION

The Abood Court failed to take note of the im-

portant differences between public and private em-

ployees and public and private employers. Further,

the Court, without analysis, found a state interest in

limiting the voices that may speak to government on

matters of public policy as not only lawful, but also

sufficient to justify the infringement of the First

Amendment liberties of nonmember dissidents. It is

time for the Court to correct these errors and overrule

Abood.

DATED: December, 2017

Respectfully submitted,

JOHN C. EASTMAN

ANTHONY T. CASO

Counsel of Record

Center for Const’l Jurisprudence

c/o Chapman University

Fowler School of Law

One University Drive

Orange, CA 92866

Counsel for Petitioner