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,

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 FOR AMICI CURIAE

CHARLES FRIED AND ROBERT C. POST

IN SUPPORT OF NEITHER PARTY

SETH P. WAXMAN

Counsel of Record

CHRISTOPHER E. BABBITT

BLAKE C,. ROBERTS

ALBINASJ. PRIZGINTAS

JOHN BYRNES

ROBBIE MANHAS

CLAIRE H. CHUNG

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

seth.waxman@wilmerhale.com

TABLE OF AUTHORITIES

INTEREST OF AMICI CURIAE

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY OF

ARGUMENT

ARGUMENT

4

IL.

UNDER THE PUBLIC-EMPLOYEE SPEECH

DOCTRINE, EMPLOYEES HAVE NO

COGNIZABLE FIRST AMENDMENT

INTERESTS IN PAYING AGENCY FEES FOR

DISCHARGE. G A UNION’S STATUTORY

DUTIES .......ccccsecsescssssccsccscscssscencoessssssserenssnssosorcees

A. The Public-Employee Speech Doctrine

Protects The Government’s Managerial

Prerogatives As An Employer ...............++

B. A Categorical Prohibition On Agency

Fees Would Create Jurisprudential

Contradictions And Undermine The

Government’s Managerial Prerogatives

As An Emp loyet.............0ssesessserersessesseesseres

EVEN IF AGENCY FEES FOR DISCHARGING

STATUTORY DUTIES DID IMPLICATE

PUBLIC EMPLOYEES’ FIRST AMENDMENT

INTERESTS, SUCH FEES WOULD BE

JUSTIFIED UNDER THIS CouURT’S

COMPULSORY-FEE PRECEDENTS. .......-esseeseesees

A. State Interests Under Comprehensive

Regulatory Regimes Can Outweigh

Individual First Amendment Interests....

PrUTTUTIOTI Tee

ii

TABLE OF CONTENTS—Continued

Page

B. Agency Fees For Discharging

Statutory Duties Fit Comfortably

Within This Court’s Compulsory-Fee

Ii. THE CourRT SHOULD <ApDopT' THE

STATUTORY-DUTIES TEST, AS PROPOSED

By JUSTICES SCALIA, O’CONNOR,

KENNEDY, AND SOUTER IN LEHNERT........c0000000000 22

A. The Statutory-Duties Test Is An

Administrable Rule For Determining

The Chargeability Of Agency Fees

Narrowly Tailored To The Union

CIE ssccsesiscsiensitiasnsiousinsnniinpinitaiicuintpuinsbtadaienteciinnieaiin 23

B. The Statutory-Duties Test Preserves

This Court’s Precedents On Public-

Employee Speech And Compulsory

iii

TABLE OF AUTHORITIES

CASES

Page(s)

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

209 (1977) 2, 5, 11, 15, 24, 29

Board of Regents of University of Wisconsin

System v. Southworth, 529 U.S. 217

(2000) 11, 18, 19, 22

Borough of Duryea, Pennsylvania v.

Guarnieri, 564 U.S. 379 (2011) 5, 6, 12, 13

Bowie v. Maddox, 642 F.3d 1122 (D.C. Cir.

EES 10

Brooks v. Arthur, 685 F 3d 367 (4th Cir. 2012)............. 13

Building & Construction Trades Council v.

Associated Builders & Contractors,

507 U.S. 218 (1993) 6, 13

Cafeteria & Restaurant Workers Union, Local

473 v. McElroy, 367 U.S. 886 (1961) ..........c0ccecceseeees 14

Chicago Teachers Union v. Hudson, 475 US.

292 (1986) ; 10

City of Madison, Joint School District No. 8 v.

Wisconsin Employee Relations

Commission, 429 U.S. 167 (1976) 15, 28

Communication Workers of America v. Beck,

487 U.S. 735 (1988) 4, 11, 20, 24, 25

Connick v. Myers, 461 US. 138

(1983) 4, 5, 6, 12, 13, 14, 15

Ellis vy. Brotherhood of Railway, Airline &

Steamship Clerks, 466 U.S. 435 (1984). .0......00..cc0000 24

iv

TABLE OF AUTHORITIES—Continued

Engquist v. Oregon Department '§ of

Agriculture, 553 U.S. 591 (2008) 6, 14

Evans-Marshall v. Board of Education of Tipp

City Exempted Village School District,

624 F.3d 332 (6th Cir. 2010) 11

Ezekwo v. New York City Health & Hospitals

Corp., 940 F.2d 775 (2d Cir. 1991) 13

Garcetti v. Ceballos, 547 U.S. 410 (2006) .............. passim

Glickman v. Wileman Bros. & Elliott, 521 U.S.

457 (1997) 17, 18, 19, 28

Graziosi v. City of Greensville Mississippi,

775 F.3d 731 (5th Cir. 2015) 13

Harris v. Quinn, 134 8. Ct. 2618 (2014) .....2, 3, 17, 21, 22

Holder v. Humanitarian Law Project, 561 U.S.

1 (2010) 22

International Ass’n of Machinists v. Street,

367 U.S. 740 (1961) 24

Johanns v. Livestock Marketing Ass’n,

544 U.S. 550 18

Keller v. State Bar of California, 496 U.S. 1

(1990) 1, 11, 18, 19, 21, 22, 28

Lathrop v. Donohue, 367 U.S. 820 (1961) 18

Lehman v. City of Shaker Heights, 418 U.S. 298

(1974) 7

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

1 |) ne passim

v

TABLE OF AUTHORITIES—Continued

Page(s)

Madison Teachers vy. Walker, 851 N.W.2d 337

(Wis. 2014) 7

Minnesota State Board for Community

Colleges v. Knight, 465 U.S. 271 (1984).......6, 7, 8, 15

NASA v. Nelson, 562 U.S. 134 (2011) 13

Perry Education Ass’n v. Perry Local

Educators Ass'n, 460 U.S. 37 (1983) 6

Pickering v. Board of Education of Township

High School District 205, Will County,

Illinois, 391 U.S. 563 (1968) 5, 16

Railway Employees Department v. Hanson,

351 U.S. 225 (1956) 24

Reeves, Inc. v. Stake, 447 U.S. 429 (1980) 14

Riley v. National Federation of the Blind of

North Carolina, Inc., 487 U.S. 781 (1988) .............. 10

Smith v. Arkansas State Highway Employees,

Local 1315, 441 U.S. 463 (1979) 6

United States v. United Foods, Inc., 583 US.

405 (2001) 18, 20, 21

West Virginia Board of Education v. Barnette,

319 U.S. 624 (1943) 18

Wieman v. Updegraff, 344 U.S. 183 (1952) 15

DOCKETED CASES

Davenport vy. Washington Education

Association, Nos. 05-1589, 05-1657 (U.S.) ............ 27

Locke v. Karass, No. 07-610 (U.S.) 27

vi

TABLE OF AUTHORITIES—Continued

Page(s)

STATUTORY PROVISIONS

5 Ill. Comp. Stat.

315/2

315/3

315/4

315/6

315/10

N.C. Gen. Stat. § 95-98

Tex. Gov’t Code

§ 174.002

§ 617.002

Rx

~ RRRSB

1-3

INTEREST OF AMICI CURIAE'

Amici are professors of law who teach and write

about constitutional law, with a particular focus on the

First Amendment. Their legal expertise thus bears di-

rectly on the constitutional issues before the Court.

Amici are Charles Fried, Beneficial Professor of

Law, Harvard Law School, and Robert C. Post, Ster-

ling Professor of Law, Yale Law School.’

INTRODUCTION AND SUMMARY OF ARGUMENT

Over the past several decades, the Court has estab-

lished important First Amendment doctrines that em-

power government employers to manage the speech of

their employees, ¢.g., Garcetti v. Ceballos, 547 U.S. 410

(2006), and authorize certain nongovernmental organi-

zations to require payment of fees necessary to support

the public functions they perform, e.g., Keller v. State

Bar of Cal., 496 U.S. 1 (1990). Amici file this brief in

the interest of neither party, but instead seek to pre-

serve the integrity of these First Amendment doc-

trines. These doctrines would be substantially under-

mined were this Court to accede to petitioner’s request

categorically to hold public-sector agency fees unconsti-

tutional under the First Amendment. At the same

time, however, respondents’ defense of the status quo

fails to address the constitutional ambiguities and ad-

' No counsel for a party authored this brief in whole or in

part, and no entity or person, other than amici curiae and their

counsel, made a monetary contribution intended to fund the prep-

aration or submission of this brief. Letters from the parties

providing blanket consent to the filing of amicus briefs are on file

with the Clerk.

2 Institutional affiliations are provided for identification pur-

poses only.

2

ministrative difficulties identified by this Court in Har-

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

Amici therefore propose a path that differs from

both petitioner and respondents. The Court can re-

solve the concerns identified in Harris and preserve

established First Amendment jurisprudence by adopt-

ing a narrower and more doctrinally consistent test for

chargeability: the statutory-duties test proposed by

Justices Scalia, O’Connor, Kennedy, and Souter in

Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991).

Under that rule, contributions to a public-sector union

“can be compelled only for the costs of performing the

union’s statutory duties as exclusive bargaining agent.”

Id. at 550 (Scalia, J., concurring in the judgment and

dissenting in part).

In seeking a categorical prohibition on agency fees,

petitioner claims that all union speech directed to the

government is “political speech indistinguishable from

lobbying the government.” Pet. Br. 10-11. That is

manifestly incorrect. When a union discharges statuto-

ry duties, it engages in speech that “owes its existence”

to the State’s chosen system for managing its work-

force; funding such speech—which is directed to the

government as an employer, not to the government as a

sovereign—does not implicate “any liberties the em-

ployee might have enjoyed as a private citizen.” Gar-

cetti, 547 U.S. at 422. Concluding otherwise would set

in motion drastic changes in First Amendment doctrine

that essentially threaten to constitutionalize every

workplace dispute and, further, to unsettle other con-

stitutional doctrines that distinguish between the gov-

ernment as employer (or proprietor) and as sovereign.

Respondents, however, are mistaken in contending

that all is well. Under Abood y. Detroit Board of Edu-

3

cation, 431 U.S. 209 (1977), public-sector unions have

been permitted to charge agency fees for lobbying, ad-

vertising, and similar speech that is “germane” to the

unions’ collective-bargaining activities. That broad,

imprecise test compels some employees to fund truly

political speech, which may be defined as speech that an

employee communicates as a citizen. The compulsory

funding of such speech is a cognizable injury to the con-

stitutional rights dissident employees enjoy as citizens.

The statutory-duties test provides the correct path

forward. Public-sector unions have statutory duties

only in States that have chosen to impose them to man-

age their public-sector workforce. A duly-elected bar-

gaining agent in such a system speaks for employees

qua employees and, in most such States, receives fund-

ing from agency fees that are assessed as a term of em-

ployment. By respecting the prerogative of state em-

ployers to manage their workforce in a manner that

suits local needs and values, the statutory-duties test is

faithful to this Court’s decision in Garcetti. At the

same time, the test protects against the compelled sup-

port of lobbying, advertising, and other speech outside

of a State’s system for managing its workforce. The

test also preserves the principles that inform the broad

range of the Court’s compulsory-fee cases, which rec-

ognize that the government’s interests in funding com-

prehensive regulatory regimes through mandatory fees

are entirely compatible with the First Amendment in-

terests of dissident fee payers.

Finally, the statutory-duties test resolves the diffi-

culties discussed in Harris. The “conceptual difficulty”

of distinguishing between collective bargaining and

lobbying in the public sector, 134 S. Ct. at 2633, is re-

solved by looking to whether the union engages the

government as an employer within a statutory system

4

of labor relations, or instead as a sovereign, outside of

the strict context of employment. Under this test, the

latter cannot by funded through mandatory agency

fees. The statutory-duties test is also administrable.

Indeed, this Court has applied an analogous test in the

private sector for decades, permitting only those fees

“necessary to ‘performing the duties of an exclusive

representative.” Communication Workers of Am. v.

Beck, 487 U.S. 735, 762 (1988); see also Lehnert, 500

U.S. at 552 (Scalia, J., concurring in the judgment and

dissenting in part) (discussing private-sector origins of

statutory-duties test).

ARGUMENT

I. UNDER THE PUBLIC-EMPLOYEE SPEECH DOCTRINE,

EMPLOYEES HAVE NO COGNIZABLE FIRST AMENDMENT

INTERESTS IN PAYING AGENCY FEES For DISCHARG-

ING A UNION’S STATUTORY DUTIES

A. The Public-Employee Speech Doctrine Pro-

tects The Government’s Managerial Preroga-

tives As An Employer

1. The Court’s public-employee speech jurispru-

dence has long recognized that “the Government, as an

employer, must have wide discretion and cc ntrol over

the management of its personnel and internal affairs.”

Connick v. Myers, 461 U.S. 138, 151 (1983). Thus, “a

government entity has broader discretion to restrict

speech when it acts in its employer role” than when it

acts as a sovereign, and when a citizen chooses to enter

government service, “the citizen by necessity must ac-

cept certain limitations on his or her freedom.” Garcet-

ti v. Ceballos, 547 U.S. 410, 411, 418 (2006). Such re-

straints “are justified by the consensual nature of the

employment relationship and by the unique nature of

5

the government’s interest.” Borough of Duryea, Pa. v.

Guarnieri, 564 U.S. 379, 387 (2011).

At the same time, “a public employee does not re-

linquish First Amendment rights to comment on mat-

ters of public interest by virtue of government em-

ployment.” Connick, 461 U.S. at 140; see also Abood v.

Detroit Bd. of Educ., 431 U.S. 209, 234 (1977) (“[A] gov-

ernment may not require an individual to relinquish

rights guaranteed him by the First Amendment as a

condition of public employment.”). The framework the

Court has developed for applying the First Amendment

to the public workplace accommodates the need for

public employers to enjoy sufficient latitude to manage

their workforce with the necessity of protecting public

employees’ rights as citizens.

To state a First Amendment claim, a public em-

ployee must establish both that the employee is speak-

ing as a citizen, and that the speech is on a matter of

public concern. Guarnieri, 564 U.S. at 386; Garcetti,

547 U.S. at 418; Connick, 461 U.S. at 150. Even if these

two conditions are satisfied, “the employee’s speech is

not automatically privileged,” Guarnieri, 564 U.S. at

386; a case-specific balancing is required. Courts must

“balance the First Amendment interest of the employ-

ee against ‘the interest of the State, as an employer, in

promoting the efficiency of the public services it per-

forms through its employees.” /d. (citing Pickering v.

Board of Educ. of Twp. High Sch. Dist. 205, Will Cty.,

T1l., 391 U.S. 563, 568 (1968)). If “the balance favors the

employer, the employee’s First Amendment claim will

fail even though the [burdened activity involves] a mat-

ter of public concern.” Jd. at 398.

This structured analysis preserves the Court’s his-

torically “cautious and restrained approach to the pro-

6

tection of speech by public employees.” Guarnieri, 564

U.S. at 391. That caution is rooted in the “common

sense realization that government offices could not

function if every employment decision became a consti-

tutional matter.” Connick, 461 U.S. at 143; see also

Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 598

(2008) (“The government’s interest in achieving its

goals as effectively and efficiently as possible is elevat-

ed ... to a significant one when it acts as employer.””).

2. This same caution is evident in the Court’s de-

cisions rejecting First Amendment challenges to gov-

ernment policies for managing relations with a public

workforce, especially policies involving collective bar-

gaining.

Public-sector bargaining regimes are purely crea-

tions of state law. See, e.g., Smith v. Arkansas State

Highway Emps., Local 1315, 441 U.S. 463, 465 (1979)

(no constitutional right to bargain with the State).

They express a State’s judgment about how best to

manage its own public workforce. See, e.g., Minnesota

State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 284

(1984) (“To recognize a constitutional right to partici-

pate directly in government policymaking would work a

revolution in existing government practices.”). The

States’ managerial! discretion is akin to the broad lati-

tude the government enjoys when acting in a proprie-

tary rather than sovereign capacity. See, e.g., Building

& Constr. Trades Council v. Associated Builders &

Contractors, 507 U.S. 218, 227 (1993) (“Our decisions ...

support the distinction between government as regula-

tor and government as proprietor.”); Perry Educ. Ass’n

v. Perry Local Educators Ass’n, 460 U.S. 37, 50-51 &

n.10 (1983) (affirming school district’s policy of granting

union exclusive access to faculty mailboxes to discharge

its “official duties” as an exercise of the district’s man-

7

agement of school property); Lehman v. City of Shaker

Heights, 418 U.S. 298, 304 (1974) (affirming city’s “man-

agerial decision” to exclude political advertising in pub-

lic transit system as a “reasonable legislative objec-

tive[] advanced by the city in a propriety capacity”).

Public-sector bargaining regimes involve the same

state managerial prerogatives to which the Court has

expressed deference in the Garcetti line of cases. See,

e.g., Minnesota State Bd., 465 U.S. at 285 (warning

against “massive intrusion into state and federal poli-

cymaking,” and citing “both federalism and separation-

of-powers concerns”); Garcetti, 547 U.S. at 423 (warn-

ing against “judicial intervention in the conduct of gov-

ernmental operations to a degree inconsistent with

sound principles of federalism and the separation of

powers”).

States exercise their managerial prerogatives in

different ways. Some States forbid any public-sector

collective bargaining. See, e.g., N.C. Gen. Stat. § 95-98.

Others distinguish among employees. See, e.g., Tex.

Gov’t Code §§ 174.002, 617.002 (authorizing fire fighters

and police officers to collectively bargain, but otherwise

forbidding it). States that do permit bargaining also

typically limit the topics that may be the subjects of

bargaining. See, e.g., 5 Ill. Comp. Stat. 315/4 (“Employ-

ers shall not be required to bargain over matters of in-

herent managerial policy[.|”); Madison Teachers, Inc. v.

Walker, 851 N.W.2d 337, 347 (Wis. 2014) (State could

limit collective bargaining to the single issue of base

wages).

This Court has interpreted the First Amendment,

consistent with Garcetti, to give ample room to state

employers to structure public workplaces as they be-

lieved most effective, without undue First Amendment

8

restrictions. In Minnesota State Board, for example,

the Court upheld against First Amendment challenge a

state law that required public employers both to bar-

gain over the terms and conditions of employment and

to “meet and confer” on other employment matters on-

ly with their employees’ exclusive representative. 465

U.S. at 274. Dissenting employees argued that this

system violated the First Amendment. Rejecting their

challenge in all respects, the Court concluded that the

dissenting employees had no right “to force officers of

the state ... to listen to them in a particular formal set-

ting”; that the meet-and-confer sessions were “obvious-

ly not a public forum”; and that the “amplification” of

the union’s voice by virtue of its statutory role did not

impair employees’ First Amendment rights to speak

outside the statutory framework. /d. at 280, 289.

B. A Categorical Prohibition On Agency Fees

Would Create Jurisprudential Contradictions

And Undermine The Government’s Manageri-

al Prerogatives As An Employer

The essential insight of the Garcetti line of cases is

that if public employees are accorded categorical First

Amendment rights, public employers will be denied the

broad discretion they need to manage their workplaces.

States will be stripped of their capacity effectively to

govern in accordance with local needs and values. It is

inconsistent with Garcetti’s carefully drawn distinction

between speaking as an employee and speaking as a cit-

izen to hold that the compulsory payment of agency

fees is categorically protected under the First Amend-

ment. Any such holding would therefore threaten to

transform every workplace dispute into a constitutional

controversy.

9

1. The test for whether an individual acts as a citi-

zen or as a public employee is whether the speech is

made “pursuant to” the employee’s official duties. Gar-

cetti, 547 U.S. at 421. The rationale for this threshold

requirement is that “[rjestricting speech that owes its

existence to a public employee’s professional responsibil-

ities does not infringe any liberties the employee might

have enjoyed as a private citizen. It simply reflects the

exercise of employer control over what the employer has

itself commissioned or created.” Jd. at 422.

Insofar as agency fees support the statutory func-

tions of an exclusive representative, they operate in aid

of a State’s control over its own system of public em-

ployment and the responsibilities it has chosen to as-

sign to the union within that system. The State author-

izes such fees by statute and negotiates collective-

bargaining agreements requiring them as a term of

public employment.’ The fees fund the designated un-

ion’s employment-related speech concerning labor rela-

tions. This is evident from the record in this case,

which shows that the challenged fees cover, for exam-

ple, “[njegotiating collective bargaining agreements,”

“laldjusting grievances pursuant to the provisions of

collective bargaining agreements, enforcing collective

bargaining agreements, and representing employees in

3 See, e.g., 5 Ill. Comp. Stat. 315/3(g) (“all or any of the em-

ployees in a collective bargaining unit are required to pay” agency

fees as set forth in “an agreement between the employer” and the

exclusive bargaining representative); JA124 (agency fees “shall be

deducted from the earnings of the non-member employees as their

share of the cost of the collective bargaining process, contract ad-

ministration and the pursuance of matters affecting wages, hours

and conditions of employment”).

10

proceedings under civil service laws and regulations.”

Pet. App. 29a; see also 5 Ill. Comp. Stat. 315/3(g).‘

Union representatives discharging their statutory

duties therefore are speaking on behalf of employees

qua employees, with funding from employees qua em-

ployees, within a statutory system created to manage

the State’s relationship with its employees qua em-

ployees. Their speech “owes its existence” to the

State’s chosen system of labor relations and does not

implicate “any liberties the employee might have en-

joyed as a private citizen.” Garcetti, 547 U.S. at 422.

That this case involves employee funding of

speech, rather than employee speech itself, does not

distinguish Garcetti. There can be no First Amend-

ment claim for restricting speech made in the context

of a system “commissioned or created” by the govern-

ment acting as employer. 547 U.S. at 422. This princi-

ple applies with equal force to a claim of compelled

speech. See Riley v. National Fed’n of the Blind of

N.C., Inc., 487 U.S. 781, 796 (1988) (the “difference be-

tween compelled speech and compelled silence ... is

without constitutional significance”). Indeed, public

employees are routinely compelled to speak pursuant to

their official duties, and courts have rejected First

Amendment challenges to such compulsion under Gar-

cetti” If the employee speech at issue here can be re-

* Respondent AFSCME issues a notice—known as a “Hud-

som notice”—annually to all represented employees reporting its

agency fees for the year, pursuant to Chicago Teachers Union vy.

Hudson, 475 U.S. 292 (1986). See AFSCME Opp. 7 & n.4.

* See, e.g., Bowie v. Maddox, 642 F.3d 1122, 1133-1134 (D.C.

Cir. 2011) (rejecting compelled-speech claim by assistant inspector

general who was allegedly fired for refusing to sign an affidavit

because, under Garcetti, “he was not speaking ‘as a citizen,” but

1]

stricted or compelled without First Amendment chal-

lenge, so too can the funding of such speech. Because a

claim of compelled funding of speech is more attenuated

than a claim of compelled speech simpliciter, this con-

clusion follows a fortiori from Garcetti.

Of course, compelled funding of union expenditures

outside of the employment context would raise First

Amendment concerns. But the Court has consistently

resolved such concerns by limiting the purposes for

which unions can collect fees (as would the proposed

statutory-duties test), rather than by categorically pro-

hibiting such fees. See, e.g., Abood, 431 U.S. at 236;

Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507, 519

(1991); ef. Communication Workers of Am. v. Beck, 487

U.S. 735, 762 (1988).°

2. A categorical rule holding agency fees uncon-

stitutional would also blur the limits the Court has been

careful to place on what constitutes a “matter of public

rather “was acting ‘pursuant to [his] official duties”’); see also Kv-

ans-Marshall vy. Board of Educ. of Tipp City Exempted Vill. Sch.

Dist., 624 F.3d 332, 341-342 (6th Cir. 2010) (explaining that a pub-

lie-school teacher could not “respond to a principal’s insistence

that she discuss certain materials by claiming that it improperly

compels speech” because, under Garcetti, “the First Amendment

has nothing to say about th{is] kind of decision{}”).

° In other contexts involving the collection of mandatory fees,

the Court has also resolved First Amendment concerns by craft-

ing appropriate limitations on the use of such fees rather than im-

posing categorical prohibitions on their collection. See, e.g., Board

of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 231

(2000) (authorizing mandatory student-activity fees under a view-

point neutral framework); Keller v. State Bar of Cal., 496 U.S. 1, 4

(1990) (holding that lawyers “may be required to join and pay dues

to the State Bar,” but narrowing “the scope of permissible dues-

financed activities in which the State Bar may engage”); see infra

pp. 17-19.

12

concern” for constitutional purposes. Here, too, the

Court has rejected a categorical approach in favor of a

case-specific inquiry: “Whether an employee’s speech

addresses a matter of public concern must be deter-

mined by the content, form, and context of a given

statement, as revealed by the whole record.” Connick,

461 U.S. at 147-148. The Court has thus rejected the

categorical proposition that “all matters which tran-

spire within a government office are of public concern.”

Id. at 149.

The record reveals that certain activities funded by

the agency fees at issue in this case cover the very

types of routine workplace matters that the Court has

carefully refrained from constitutionalizing with First

Amendment protections. As the Hudson notice in the

record details, some of the challenged fees are for “ad-

justing grievances ... and representing employees in

proceedings under civil services laws or regulations.”

Pet. App. 29a. The Court has previously held that such

activities are not matters of public concern. See Guar-

nieri, 564 U.S. at 399 (“[A] complaint about a change in

the employee’s own duties does not relate to a matter

of public concern.”); see also id. at 391 (cautioning

against “invasive judicial superintendence” into “griev-

ances on a variety of employment matters, including

working conditions, pay, discipline, promotions, leave,

vacations, and terminations”).

A ruling categorically prohibiting agency fees

would necessarily elevate these types of pedestrian

workplace matters into matters of public concern. Pe-

titioner evidently agrees. Pet. Br. 14-15 (arguing that

the grievance process is subject to the First Amend-

ment). That is irreconcilable with this Court’s prece-

dent. Indeed, the employee’s claim in Connick “failed

the public concern test” precisely because the work-

13

place questionnaire she distributed—addressing mat-

ters like the need for a grievance committee—‘“was

‘most accurately characterized as an employee griev-

ance concerning internal office policy.” Guarnieri, 564

U.S. at 392 (describing Connick); see also Connick, 461

U.S. at 149. If the Court in this case holds that employ-

ee grievances are a matter of public concern, it will

have to accept the same result in countless other sce-

narios—including, for example, a public employee’s

complaint of a superior’s “poor management and moti-

vational skills,” Ezekwo v. New York City Health &

Hosps. Corp., 940 F.2d 775, 778 (2d Cir. 1991), a superi-

or’s lack of leadership ability, Graziosi v. City of

Greensville Mississippi, 775 F.3d 731, 738 (5th Cir.

2015), and, more generally, employment conditions and

personal dissatisfaction with personnel decisions,

Brooks v. Arthur, 685 F 3d 367, 372 (4th Cir. 2012).

The potential for collective bargaining to affect the

public fise (see Pet. Br. 12-15) does not change this con-

clusion. This Court has recognized that workplace

speech “does not attain the] status” of a matter of public

concern just “because its subject matter could, in differ-

ent circumstances, have been a topic of a communication

to the public that might be of general interest.” Con-

nick, 461 U.S. at 148 n.8. Were this not the case, any

public employee whose speech might affect the public

fise (e.g., contract officers, budget analysts, revenue

agents) would enjoy newfound First Amendment pro-

tection for their workplace speech.’

7 The consequences of accepting petitioner’s categorical rule

would go further still. The distinction between the government as

employer (or proprietor) and as sovereign pervades constitutional

law. See supra pp. 6-7 (citing, eg., Building & Constr. Trades

Council, SOT U.S. at 227); see also, e.g., NASA v. Nelson, 562 US.

134, 138, 148-149 (2011) (emphasizing the distinction between the

14

3. A categorical prohibition on agency fees would

also mark an abandonment of the balancing that is the

final step in the Court’s public-employee speech cases.

Once an employee has overcome the threshold re-

quirements, i.¢., speaking as a citizen on a matter of

public concern, “[tJhe question becomes whether the

government entity hajs] an adequate justification for

treating the employee differently from any other mem-

ber of the general public.” Garcetti, 547 U.S. at 418. As

the Court explained in Connick, “(t]he Pickering bal-

ance requires full consideration of the government’s in-

terest in the effective and efficient fulfillment of its re-

sponsibilities to the public.” 461 U.S. at 150.

Nearly half the States have chosen to authorize

agency fees for unionized public workplaces; they have

decided that well-funded collective-bargaining ar-

rangements are best-suited to serving their citizens ef-

fectively and efficiently. See Pet. 9 n.3; AFSCME

Opp. 1. These discretionary state judgments deserve

respect and must be weighed in the balance mandated

by Pickering, Connick, and Garcetti. At the same time,

15

as Abood recognized, public employees in a unionized

workplace “are free to participate in the full range of

political activities open to other citizens” when they

speak outside the workplace. 431 U.S. at 230 (citing

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

Emp't Relations Comm’n, 429 U.S. 167, 174 (1976)).

The categorical approach sought by petitioner

would ignore the balancing requirement and preclude

States and localities from funding any workplace-

management activities through agency fees. States and

localities could not even use agency fees to fund routine

matters such as “{ajdjusting grievances ... and repre-

senting employees in proceedings under civil service

laws and regulations.” Pet. App. 29a. The necessary

implication would be that, with respect to such matters,

no government interest could be sufficient to tip the

balance in favor of the government’s chosen means of

managing its own workforce and dealing with disgrun-

tled employees.

4. That agency fees are imposed on bargaining-

unit employees as a class provides no basis for a dis-

tinction. To the contrary, the Court has recognized

that its precedent includes cases addressing require-

ments imposed on employees as a class. See Connick,

461 U.S. at 144; see also, e.g., Wieman v. Updegraff, 344

U.S. 183, 184-185 (1952) (evaluating “validity of a loyal-

ty oath prescribed by Oklahoma statute for all state of-

ficers and employees”), cited in Connick, 461 U.S. at

144; cf. Minnesota State Bd., 465 U.S. at 273 (affirming

state power to impose restrictions on employees as a

class by making a union the exclusive employee repre-

sentative).

Nor was there any suggestion in Garcetti or Con-

nick that the number of employees at issue had any

16

bearing on First Amendment analysis. Had there been

multiple employees involved in either Connick or Gar-

cetti, for example, the same doctrinal framework surely

would apply—.e., the Court would ask whether the

speech was made as a citizen and addressed a matter of

public concern, and whether the employees’ interests

outweighed the State’s interest in managing its work-

force. Garcetti, 547 U.S. at 422.

Because First Amendment rights are ultimately

individual in character, the First Amendment claims of

a class of employees can be no stronger than the claims

of the individuals who make up the class. And if, as

Garcetti holds, each individual employee has no First

Amendment right to “express views that contravene

governmental policies or impair the proper perfor-

mance of governmental functions,” 547 U.S. at 419, no

class of employees can claim any such right. Indeed,

the presumption might well work the other way. When

employees as a group fail to speak in accord with the

terms of their employment, the government’s interest

in “promoting the efficiency of the public services it

performs through its employees,” Pickering, 391 U.S.

at 568, is likely even stronger because the threat to

workplace effectiveness is correspondingly larger. See,

e.g., Garcetti, BAT U.S. at 419, 422.

Il. EVEN Ir AGENCY FEES For DISCHARGING STATUTORY

Duties Dip IMPLICATE PUBLIC EMPLOYEES’ First

AMENDMENT INTERESTS, SUCH FEES WOULD BE JUS-

TIFIED UNDER THIS COURT’S COMPULSORY-FEE PREC-

EDENTS

Even if the Court were to determine that employ-

ees enjoy some First Amendment interests in the nar-

row context of paying fees to support a union’s statuto-

ry duties, a categorical prohibition on agency fees

17

would still be inappropriate under the Court’s compul-

sory-fee cases. Relying on Abood, this Court has re-

peatedly held that government interests in collective

action under comprehensive regulatory regimes may

justify mandatory subsidization of private speech. The

reasoning of these cases applies equally, if not with

greater force, to the payment of agency fees for dis-

charging a union’s statutory duties.

A. State Interests Under Comprehensive Regu-

latory Regimes Can Outweigh Individual First

Amendment Interests

This Court has recognized many times that the

government has a strong interest in compelling partici-

pants in a regulatory regime to directly pay for its

costs. See, ¢.g., Harris, 134 8. Ct. at 2644 (“States ...

have a strong interest in allocating to the members of

the bar, rather than the general public, the expense of

ensuring that attorneys adhere to ethical practices.”).

The Court has invoked Abood for this principle, and,

outside the context of government speech, Abood forms

the modern foundation for this Court’s compulsory-fee

precedent in contexts like agricultural marketing and

integrated bars.

In Glickman v. Wileman Bros. & Elliott, 521 U.S.

457, 463 (1997), for example, the Court addressed a fed-

eral regulatory scheme that imposed assessments on

fruit producers to finance various aspects of the regula-

tory program, which included generic advertising of

stone fruits. The Court upheld these mandatory as-

sessments, “stress[ing] the importance of the statutory

context” in which they arose—.e., “a broader collective

enterprise in which [the business entities’] freedom to

act independently is already constrained by the regula-

tory scheme.” Id. at 469. The Court explained that

18

Abood and its progeny “provide affirmative support for

the proposition that assessments to fund a lawful col-

lective program may sometimes be used to pay for

speech over the objection of some members of the

group” where the speech was in furtherance of a broad-

er collective purpose. Jd. at 472-473. The Court also

recognized that, like the agency fees upheld in Abood,

the mandatory assessments did not “require [the busi-

ness entities] to repeat an objectionable message out of

their own mouths,” thus distinguishing compelled-

speech cases like West Virginia Board of Education v.

Barnette, 319 U.S. 624 (1943). 521 U.S. at 470-471.

The Court reaffirmed Glickman’s holding in United

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

mandatory assessments in Glickman, the Court stated,

were constitutionally permissible because they “were

ancillary to a more comprehensive program restricting

marketing autonomy.” /d. at 411; see also Johanns v.

Livestock Mktg. Ass’n, 544 U.S. 550, 558 (2005) (resolv-

ing case on government-speech grounds, but reaffirm-

ing Abood and Keller).

The Court has also upheld compulsory fees imposed

by integrated bars. See Keller, 496 U.S. at 1, 13-14;

Lathrop v. Donohue, 367 U.S. 820, 843 (1961) (plurality

op.). In Keller, the Court unanimously used the consti-

tutional framework of Abood to hold that bar-

membership dues were constitutional. See 496 U.S. 1,

4, 13-14; see also Southworth, 529 U.S. at 231 (“The

principles outlined in Abood provided the foundation

for our ... decision in Keller.”). The California State

Bar, like the union in Abood, served important state

interests by performing functions assigned by the

State. Keller, 496 U.S. at 4, 12. Individual lawyers in

Keller may have had residual First Amendment rights

not to be compelled to subsidize the bar, but these

19

rights were outweighed by the public need for a func-

tioning bar organization under the State’s chosen sys-

tem for administering the legal profession. /d.

Analogously, even if one assumes that dissident

employees in this case retain residual First Amend-

ment rights in the narrow context of paying fees to

support a union’s statutory duties, those rights are

outweighed by a State’s interest in managing its own

workforce. See infra pp. 20-22. In Keller, the Court

emphasized that the constitutionality of agency fees

turns on recognizing the important government inter-

ests served by agency shops, as well as the fundamen-

tal fairness of requiring all beneficiaries of collective

bargaining to share its costs. 496 U.S. at 12, 13.

These precedents illustrate some of the many situ-

ations in which organizations assigned responsibilities

by the government must overcome free-rider problems

and impose compulsory fees. In these situations, the

Court has drawn on the principles of Abood to conclude

that the government’s interests can outweigh any re-

sidual First Amendment interests individuals retain in

refusing to pay fees. It was on that basis that the

Court permitted the compulsory fees in Glickman and

Keller, notwithstanding any First Amendment burden

on individual members. See Glickman, 521 U.S. at 472-

473; Keller, 496 U.S. at 12-14; cf. Southworth, 529 U.S.

at 232 (authorizing mandatory fees to fund student ex-

tracurricular program even though it was “all but inev-

itable that the fees will subsidize speech that some stu-

dents find objectionable or offensive”). If, as petitioner

asks, Abood is to be flatly overruled, all these many

cases and applications would be thrown into the most

serious confusion.

20

B. Agency Fees For Discharging Statutory Du-

ties Fit Comfortably Within This Court’s

Compulsory-Fee Precedents

Agency fees for discharging a public-sector union’s

statutory duties are constitutional under this Court’s

compulsory-fee precedents. Narrowly tailored to the

union’s obligations imposed by statute as part of a com-

prehensive regulatory regime, such fees serve a com-

pelling state interest that overrides any residual First

Amendment interest of dissenting employees.

Agency fees are an important feature of one of the

most longstanding, complex, and delicately-balanced

regulatory schemes in the country—dating back to the

recognition of organized labor in the 1930s, existing at

both the state and federal level and in both the public

and private sectors. See, e.g., Lehnert, 500 U.S. at 550

(Scalia, J., concurring in the judgment and dissenting in

part) (describing history); Beck, 487 U.S. at 747-753.

When a State enacts a comprehensive program that re-

stricts the bargaining autonomy of individual employ-

ees, its interest in allowing fees to support statutory

collective bargaining is surely as strong as those in

Glickman and Keller. Cf. United Foods, 533 U.S. at

411 (addressing Glickman’s “comprehensive program

restricting marketing autonomy” of California fruit

growers). Indeed, as Justice Scalia explained in

Lehnert, “where the state creates in nonmembers a le-

gal entitlement froin the union,” it has a “compelling”

interest in requiring those nonmembers to pay the cost.

500 U.S. at 556.

Harris is not to the contrary. The Court there ex-

plained that its decision not to extend Abood to home-

care workers “fit{] comfortably within the framework”

of the compulsory-fee cases because the State’s regula-

21

tory interest that animated Abood and Keller was not

implicated when the home-care workers were, in the

Court’s words, “deemed public employees solely for the

purpose of unionization and the collection of an agency

fee,” not as part of a larger regulatory or policy pro-

gram. Harris, 134 S. Ct. at 2643-2644, 2627 (emphasis

added); cf. United Foods, 533 U.S. at 411-412 (no fees

for advertising that was the “the principal object of the

regulatory scheme”). That distinction is absent here.

Nor can the Glickman and Keller lines of precedent

be distinguished on the ground that agency fees cover

“speech in favor of increased wages and benefits,”

which “would almost certainly mean increased expendi-

tures,” and thus involve “a matter of great public con-

cern.” Harris, 134 8. Ct. at 2642-2643. In Keller, for

example, the California State Bar used mandatory dues

to lobby for or against a range of government policies

that would affect the public fisc, including “creating an

unlimited exclusion from the gift tax for gifts to pay for

education tuition and medical care,” “deleting the re-

quirement that local government secure approval of the

voters prior to constructing low-rent housing projects,”

and “limiting the right to individualized education pro-

grams for students in need of special education.” 496

U.S. at 6 n.2. That the Bar’s expenditures included

lobbying on such matters did not justify a categorical

ban on mandatory bar dues; rather, the Court remand-

ed for further proceedings to develop the fuller record

required to disaggregate the chargeable from the non-

chargeable expenditures and to fashion an appropriate

remedy. Jd. at 17. No such remand would have been

22

required, of course, if all expenditures implicating pub-

lic funding were non-chargeable on that basis alone.*

Ill. THE CourT SHOULD ApopTt THE STATUTORY-DUTIES

TEST, AS PROPOSED By JUSTICES SCALIA, O’CONNOR,

KENNEDY, AND SOUTER IN LEHNERT

The Court has recently discussed a “conceptual dif-

ficulty” in distinguishing between public-sector union

expenditures that are “made for collective-bargaining

purposes,” and thus are chargeable to nonmembers

consistent with the First Amendment, “and those that

are made to achieve political ends,” and thus are non-

chargeable. Harris, 134 S. Ct. at 2632. The Court also

has identified “practical administrative problems” fol-

lowing Abood. Id. at 2633.

® None of the foregoing depends on whether the claims of dis-

sident employees are viewed as based on compelled speech, com-

pelled association, or both. See, eg., Pet. Br. 2, 9 (referencing

“compelled speech and association” together). The same conclu-

sions apply irrespective of the right asserted in this case because

identical principles underlie speech and association claims. In Kel-

ler, for example, the Court found “the compelled association and

integrated bar ... justified” by the State’s important regulatory

interest, and accordingly held that lawyers “may be required to

join and pay dues to the State Bar.” 496 U.S. at 4, 13-14; see also

Southworth, 529 U.S. at 227 (in upholding mandatory student-

activity fee, analyzing together students’ claimed violation of their

“rights of free speech” and “free association”); cf. Holder v. Hu-

manitarian Law Project, 561 U.S. 1, 40 (2010) (rejecting free-

association challenge for the same reasons as free-speech chal-

lenge). If anything, any claims of compelled association would be

weaker here than they were in Keller because, unlike lawyers who

are required to join the bar as a condition of practicing, dissident

employees need not join a public-sector union as a condition of

their employment. Moreover, under the statutory-duties test,

dissident employees need only fund union activity in a sphere

where they are already associated with the union, because the

State requires the union to represent the entire bargaining unit.

23

The Court can solve these difficulties by adopting

the statutory-duties test proposed by Justice Scalia in

Lehnert, 500 U.S. at 550, a rule narrowly tailored to the

context of agency fees. By its terms, the test aligns

with the statutory obligations of a union, and it balanc-

es the competing interests of unions and dissident em-

ployees. The test would also safeguard the Court’s im-

portant precedents in the areas of public-employee

speech and of compelled fees.

A. The Statutory-Duties Test Is An Administra-

ble Rule For Determining The Chargeability

Of Agency Fees Narrowly Tailored To The

Union Context

1. In Lehnert, the Court unanimously reaffirmed

Abood but divided on the chargeability of the particular

expenses at issue. See 500 U.S. at 519-527 (opinion of

the Court); id. at 533-550 (Marshall, J., concurring in

part and dissenting in part); id. at 550-561 (Scalia, J.,

concurring in the judgment in part and dissenting in

part); id. at 562-564 (Kennedy, J., concurring in the

judgment in part and dissenting in part). The opinions

differed in articulating how an expenditure must be re-

lated to collective bargaining to be chargeable, and

which fees in that case were chargeable. Compare id.

at 519 (opinion of the Court), with id. at 557-558 (Scalia,

J.), and id. at 562-564 (Kennedy, J.).

The majority established a three-part test, under

which “chargeable activities must (1) be ‘germane’ to

collective-bargaining activity; (2) be justified by the

government’s vital policy interest in labor peace and

avoiding ‘free riders’; and (3) not significantly add to the

burdening of the speech that is inherent in the allow-

ance of an agency or union shop.” 500 U.S. at 519. Ap-

plying that test, the Court allowed unions to charge for

2A

a number of expenses, including union conventions, pub-

lications, and strike preparations. See id. at 527-532.

Justice Scalia, joined by Justices O’Connor, Kenne-

dy, and Souter, disagreed with the majority’s three-

part test, and proposed a stricter alternative that

would have significantly narrowed the majority’s test.

500 U.S. at 550-551, 557-558. In their view, chargeabil-

ity of agency fees should turn only upon the statutory

duties the government has chosen to impose upon the

union. Id.

As Justice Scalia’s opinion explained, the statutory-

duties test is grounded in this Court’s precedent ad-

dressing both constitutional and statutory challenges to

agency fees. See 500 U.S. at 552-558 (discussing Rail-

way Emps. Dep’t v. Hanson, 351 U.S. 225 (1956); Inter-

national Ass’n of Machinists v. Street, 367 U.S. 740

(1961); Abood, 431 U.S. 209; Ellis v. Brotherhood of Ry.,

Air! ne & S.S. Clerks, 466 U.S. 435 (1984); Beck, 487 U.S.

735). Balancing the competing interests of unions and

dissident employees in the bargaining unit, that prece-

dent “recogniz[ed] a correlation between the rights and

the duties of the union, on the one hand, and the nonun-

ion members of the bargaining unit, on the other.” Jd. at

556. “Where the state imposes upon the union a duty to

deliver services,” Justice Scalia explained, “it may per-

mit the union to demand reimbursement for them.” Jd.

Under this view, the statutory duty of the union is both

“the constitutional test and justification.” Jd. at 557 n.2.

Applying this test, Justice Scalia “readily con-

clude[d] that a number of ... expenses cannot be charged

to nonmembers,” including in that case “public relations

activities,” “lobbying expenses,” “the union’s magazine,”

“expenses of sending delegates to conventions,” and

“costs of preparing for a strike.” 550 U.S. at 558-562.

25

Justice Kennedy agreed in full with Justice Scalia’s

test, but would have construed the union’s statutory

duties more broadly to include “strike preparation ac-

tivities,” and thus would have found them chargeable as

well. 500 U.S. at 562-563. He concluded his separate

opinion by cautioning against establishing “rigid cate-

gories such as conventions (chargeable) and extraunit

litigation (nonchargeable),” counseling in favor of an

approach “examin[ing] whether each expense was rea-

sonably or necessarily incurred in the performance of

the union’s statutory duties as exclusive bargaining

representative.” /d. at 564.

2. The statutory-duties test is narrow and admin-

istrable. Indeed, this Court has endorsed and applied

an analogous test for decades in the private sector. See

Lehnert, 500 U.S. at 552-558 (Scalia, J., concurring in

the judgment and dissenting in part); Beck, 487 U.S. at

762-763. It is tailored to the particular context in which

States have elected to rely on collective-bargaining ar-

rangements to manage relations with their employees.

As in this case, the law in agency-fee jurisdictions

compels unions to negotiate in good faith toward a con-

tract that will govern the terms of public employment.

See, e.g., 5 Ill. Comp. Stat. 315/10(b)(4).” And unions’

participation in this process is subject to substantial

constraints, beginning with the duty to fairly represent

all employees (members and nonmembers alike), see id.

*5 Ill. Comp. Stat. 315/10(b)(4) (“It shall be an unfair labor

practice for a labor organization or its agents ... to refuse to bar-

gain collectively in good faith with a public employer, if it has been

designated ... as the exclusive representative of public employ-

ees|.}”).

26

315/6(d),'° and extending to rules prescribing proce-

dures for bargaining and limiting the topics over which

unions and public agencies may bargain, see id. 315/4."'

Respondent AFSCME’s Hudson notice lists 36 cat-

egories of activities that may be charged to nonmem-

bers in full, in part, or not at all under current law. Pet.

App. 28a-33a; see supra n.4. Concerning activities that

may be charged in full, the notice lists 15 different ac-

tivities. Pet. App. 28a-30a. Two of these, for example,

are at the very core of the union’s duties as an exclusive

bargaining representative, and thus easily satisfy the

statutory-duties test: “[njegotiating collective bargain-

ing agreements” and “(ajdjusting grievances pursuant

to the provisions of collective bargaining agreements,

enforcing collective bargaining agreements, and repre-

senting employees in proceedings under civil service

laws and regulations.” Pet. App. 29a.

Conversely, other categories of expenses that are

charged in full or in part under current law—such as

lobbying and public relations activities, Pet. App. 29a—

would not be chargeable under a statutory-duties test,

as Justice Scalia’s opinion in Lehnert makes clear. 500

'© Id. 315/6(d) (“Labor organizations recognized by a public

employer as the exclusive representative ... are responsible for

representing the interests of all public employees in the unit.”).

' 14. 315/4 (“Employers shall not be required to bargain over

bargain collectively with regard to policy matters directly affect-

ing wages, hours and terms and conditions of employment as well

as the impact thereon upon request by employee representa-

tives{.]”).

27

U.S. at 559-562 (identifying expenses that would be

non-chargeable under statutory-duties test). “The test

of chargeability ... is not whether the activities at issue

help or hinder achievement of the union’s bargaining

objectives, but whether they are undertaken as part of

the union’s representational duty.” /d. at 562.

The statutory-duties test meaningfully limits the

scope of expenses that may be charged by a union to

nonmember employees. And while the chargeability of

a particular expense may, in certain cases, require an

in-depth analysis of the facts, the statutory-duties test

provides clear guidance to unions and to nonmembers

who want to challenge union expenditures. It avoids

the subjective elements of the current standard. See

Lehnert, 500 U.S. at 561, 559 n.3 (Scalia, J.).'”

B. The Statutory-Duties Test Preserves This

Court’s Precedents On Public-Employee

Speech And Compulsory Fees

In addition to being clear and administrable, the

statutory-duties test tracks the division between rep-

'2 Some of the amici supporting petitioner here have them-

selves previously argued in favor of the statutory-duties test. See

Pacific Legal Found. et al. Amicus Br. 21, Locke v. Karass, No. 07-

610 (U.S. May 12, 2008) (“Under the Lehnert concurrence, which

may ‘

Center for Public Policy Amicus Br. 2, 21, Davenport v. Washing-

ton Educ. Ass'n, Nos. 05-1589, 05-1657 (U.S. Nov. 13, 2006) (the

statutory-duties test “respects nonmembers’ individuals rights

and precludes the possibility that a nonmember could be charged

for political expenditures with which he or she does not agree”);

cf. Commonwealth of Virginia Amicus Bi. 2, Locke v. Karass, No.

07-610 (U.S. May 12, 2008) (the statutory-duties test “is simpler

and more manageable for litigants and the lower courts”).

28

resentative activity that is authorized under state la-

bor-law regimes and expressive activity that is inde-

pendent of those regimes and protected by the First

Amendment. It therefore ensures that the law govern-

ing agency fees is consistent with and informed by the

First Amendment principles underlying the public-

employee speech doctrine and the Court’s compulsory-

fee cases.

First, the statutory-duties test preserves the criti-

cal distinction, recognized in Pickering, Connick, Gar-

cetti, and Guarnieri, between public employees speak-

ing as employees and public employees speaking as citi-

zens. By limiting agency fees to those covering “the

costs of performing the union’s statutory duties as ex-

clusive bargaining agent,” Lehnert, 500 U.S. at 550, the

test ensures that all such fees are closely tied to the ex-

ercise of statutory rights under state systems for regu-

lating employment, rights to which no citizen is entitled

under the First Amendment. It further ensures that

the existence of the employment relationship and state

labor-relations system is not used as “leverage,” Gar-

cetti, 547 U.S. at 419, to burden public employees’ First

Amendment rights on matters outside of those sys-

tems. Cf. City of Madison, 429 U.S. at 174-175 (statu-

tory bargaining exclusivity cannot preclude citizen

speech in public forum).

Second, the statutory-duties test preserves the an-

alytic framework of Abood, the foundation of many

com -fee decisions. In Glickman and Keller, the

Court emphasized the statutory context and state in-

terests at issue when determining whether a given

compulsory-fee scheme was consistent with the First

Amendment. See Glickman, 521 U.S. at 469, 476; Kel-

ler, 496 U.S. at 12-14. The statutory-duties test recog-

nizes the importance of state interests in determining

29

the constitutionality of agency fees and thus protects

the government’s ability to compel the participants in a

regulatory regime to pay for its costs, while providing a

method for partitioning expenses that cannot constitu-

tionally be imposed on nonmembers.

Third, the statutory-duties test preserves the au-

thority of the political branches of all the States—

allowing each to set (or eliminate) the statutory duties of

public-sector unions as best suits local needs and values.

‘, he local ascertainment of local needs should not be dis-

placed by a rigid, national, categorical rule. Cf. Abood,

431 U.S. at 224-225 (“Our province is not to judge the

wisdom of Michigan’s decision to authorize the agency

shop in public employment.”); Garcetti, 547 U.S. at 423

(“To hold otherwise would be to demand permanent ju-

dicial intervention into the conduct of government oper-

ations to a degree inconsistent with sound principles of

federalism and the separation of powers.”).

Like many other States, Illinois has established a

detailed and comprehensive system to govern labor re-

lations in public employment—a system that, in its

judgment, serves the best interests of not only public

employees and public employers, but also its citizenry

as a whole. 5 Ill. Comp. Stat. 315/2 (“It is the purpose

of this Act to prescribe the legitimate rights of both

public employees and public employers, to protect the

public health and safety of the citizens of Illinois, and to

provide peaceful and orderly procedures for protection

of the rights of all.”). Illinois determined that a mecha-

nism for collective labor relations with its public-sector

workforce is the best way to achieve its goals. Surely

Illinois should possess the power to choose how to fund

this mechanism. The statutory duties test preserves its

ability to do so within the framework of the Court’s es-

tablished First Amendment decisions.

30

CONCLUSION

The Court should adopt the statutory-duties test

proposed by Justices Scalia, O’Connor, Kennedy, and

Souter in Lehnert—a clear, administrable rule tailored

to the context of public-sector collective bargaining,

which parallels the rule the Court has long applied for

private-sector agency fees. Because the parties did not

have the opportunity to address that test in the context

of this case, the Court should vacate and remand for

reconsideration under that standard.

DECEMBER 2017

Respectfully submitted.

SETH P. WAXMAN

Counsel of Record

CHRISTOPHER E. BABBITT

BLAKE C. ROBERTS

ALBINAS J. PRIZGINTAS

JOHN BYRNES

ROBBIE MANHAS

CLAIRE H. CHUNG

WILMER CUTLER PICKERING

HALE AND DORR LLP

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Washington, DC 20006

(202) 663-6000

seth.waxman@wilmerhale.com