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 OF MAYOR ERIC GARCETTI, COUNTY

EXECUTIVE DOW CONSTANTINE, MAYOR JENNY

DURKAN, MAYOR RAHM EMANUEL, MAYOR JAMES

KENNEY, AND MAYOR BILL DE BLASIO AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

DONALD B. VERRILLI, JR.

Counsel of Record

DAHLIA MIGNOUNA

MUNGER, TOLLES & OLSON LLP

(Additional Counsel Listed on Inside Cover)

—————————————————————————————

EDWARD N. SISKEL

CORPORATION COUNSEL OF

THE CITY OF CHICAGO

S021 PEDRO TULANTE

City SOLICITOR FOR THE

CITY OF PHILADELPHIA

1515 ARCH STREET

17TH FLOOR

PHILADELPHIA, PA 19102

ATTORNEY FOR AMICUS,

MAYOR JAMES KENNEY

TABLE OF CONTENTS

Page

TPAD A GH AIF CII Gir cccccccccsscscccvcsssccncssenseesenes i

INTEREST OF AMICI CURIAE ............00:ccccceeeeeeeeeees 1

INTRODUCTION AND SUMMARY OF

IIIS ccicosedueddenescbictbdpnnsencneseanseriesnmeenss 4

SEE ancninenststicicicinsiniadetsieninanntinmanemeseeates 11

|. First Amendment doctrine recognizes a

vitally important distinction between

government as an employer and

government AS A SOVETEIQM. ....................cceeeeeeeeees 11

Il. Abood strikes the same balance as does

the Pickering/Garcetti framework. ...................-. 16

Ill. The case for overruling Abood is

wholly umpersuasive. ...............cscccceceeceeeereeeeeeeeees 24

COICT ATION osreccccereccecceccercccsoscascosesssscssccsscssscosssses 37

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Abood v. Detroit Bd. of Educ.,

ee eI Oiiiktencknkccccsucecdccecesssscsessiais passim

Air Line Pilots Ass'n v. Miller,

a as ss esedimunoenmtenabioes 21

Borough of Duryea v. Guarnieri,

Se I aI cnn canissntionecemnseecdsonens passim

Branti v. Finkel,

I I iii iccnisctinoctincadccntsentadessetocdecnsane’ 31

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

v. Wisconsin Emp’t Relations

Comm'n,

gk RRS ARERR Sane eo rams 30

Communications Workers of Am. v.

Beck,

ee Pe iicttcenicticintenscaecsiistecsionsenves 20, 21

Connick v. Myers,

es I dcivecidcecccendsneseoserssecsncteoees passim

Elrod v. Burns,

a i a 17

Engquist v. Oregon Dep’t of Agric.,

Be a I I ihicttcicvinsccsinsbssesnductenadéietclineadindn 16

Friedrichs v. California Teachers Ass'n,

a sc ptuisamnsdens 6

Garcetti v. Ceballos,

Se I iicnedsnntginctncsenkinibanenionsatios passim

Gilpin v. AFSCME,

875 F.2d 1310 (7th Cir.),

cert. denied, 493 U.S. 917 (1989) ...........0....ccccccee 21

Harris v. Quinn,

nr ccc atcennbenionent 25

International Ass’n of Machinists v.

Street,

I i oe, socal scenceniabeunesanens 21

Keller v. State Bar of Cal.,

ee Oe I ciiciintcescnsenseviedcbicneniesenesen 21, 34, 35

Knox v. Service Emps. Int'l Union,

ny I I I ac ctccicetniceciianhiaonsinennes 25

Lane v. Franks,

a a IOI enicscaensonnsnsieninovenenedeacsencetnen 15

Lehnert v. Ferris Faculty Ass’n,

iis Ff) | ere 21, 22, 24, 29

Locke v. Karass,

I a cessnndainanebad 25

Perry Educ. Ass'n v. Perry Local

Educators Ass’n,

LS duseiiiiaamimendiaoes 23

iV

Perry v. Sindermann,

eee

Pickering v. Board of Educ. of Twp.

High Sch. Dist. 205,

ee

Railway Employes’ Dep’t v. Hanson,

ee Ss SE cincencniccnstesciacsincivesiee

Rankin v. McPherson,

ne

Riley v. Nat'l Fed’n of the Blind of N.C.,

Inc.,

re Wee, ee i itnttresicinscentinensatinvicie

Rutan v. Republican Party,

Pe ee EE ic ccesccedecctscmscccissnsncnens

Shelton v. Tucker,

Se ee I cciecresccsensetescessnceivniie

United Pub. Workers of Am. (C.I.O.) v.

Mitchell,

Se SF CE Rcaceercosicancosincesancecsensors

United States v. Nat'l Treasury Emps.

Union,

SR ere Me CI iciicerccnsncncetencsscsonsiens

Waters v. Churchill,

Fee ee i ttcnsncsscescincsnesnesinnens

Wieman v. Updegraff,

8 SRE nig REESE RSS antec eeu 14

STATE CASES

McAuliffe v. Mayor of New Bedford,

20 N.E. G17 Gidaae. 1808)............ccccccceccccccsseeceeess 12

FEDERAL STATUTES

BP ae I ini iniscicscsictiicencgninbpbicenaes 13, 34, 37

a I IED cincceshinesruniinsinselpniiculshecasiasiabsicensianpinatiiaman 21

TSE AR edd SOM eee ered ile EP 21

CONSTITUTIONAL PROVISIONS

i eh Sa EE eer ee passim

OTHER AUTHORITIES

Casey Ichniowski & Jeffrey S. Zax,

Right-to-Work Laws, Free Riders,

and Unionization in the Local Public

Sector,

9 J. Lab. Econ. 255 (July 1991) ...................cc0ce0000 8

Joel Cutcher-Gershenfeld, The Impact

on Economic Performance of a

Transformation in Workplace

Relations, 44 ILR Rev. 241 (1991)......................... 6

Lloyd G. Reynolds, Labor Economics

and Labor Relations (8th ed. 1982)................... 7,9

vi

Mancur Olson, The Logic of Collective

I MI ia citscetaseiccechesennietncasndsesesioensnctiticl 9

Richard B. Freeman & James L. Medoff,

What Do Unions Do? (1984)...............c0ccc0000000 6, 7,8

Sandra E. Black & Lisa M. Lynch, How

to Compete: The Impact of Workplace

Practices and Information

Technology on Productivity (Nat'l

Bur. Of Econ. Research, Working

I I aa tacndineemedeiin 7

l

INTEREST OF AMICI CURIAE

Amici are the executives of some of the largest cities

and counties in the country. They file this brief to

share their perspective based on their many years of

service and significant management experience.

Amicus Eric Garcetti is the forty-second Mayor of

the City of Los Angeles, the Nation’s second-largest

city, with a population of approximately four million

people! As Mayor, amicus oversees the Police

Department, the Fire Department, the Department of

Transportation, the Department of Water and Power,

the Public Library, and numerous other departments

and agencies that provide services vital to the health

and welfare of the people of Los Angeles. The City of

Los Angeles employs over 50,000 employees, 98% of

whom are represented by a union.

Amicus Dow Constantine is the County Executive

for King County, Washington, the thirteenth-largest

county in the United States, with 2.1 million diverse

residents living in 39 cities and in a large

unincorporated area. Executive Constantine

oversees the Departments of Transportation, Natural

Resources and Parks, Public Health, Community and

Human Services, as well as other departments that

! 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

preparation or submission of this brief. The parties have

provided blanket consent to the filing of amicus briefs in this

case.

serve the Executive’s passion for environmental

protection, public transit and government reform.

King County has seventy-nine collective bargaining

agreements and partners with thirty-two unions.

More than 80% of its workforce — over 12,000

employees — are represented by unions.

Amicus Jenny A. Durkan is the Mayor of Seattle,

the Nation’s fastest growing major city. As Mayor,

amicus oversees the Seattle Police, Fire,

Transportation, Public Utilities, and Housing

Departments, among others, which provide services

vital to the health and welfare of the people of Seattle.

The City of Seattle has over 8,000 represented

employees, and its more than 25 collective bargaining

agreements with its union partners have been critical

for meeting the challenges created by its rapid

population growth.

Amicus Rahm Emanuel has served since 2011 as

the fifty-fifth Mayor of the City of Chicago, the Nation’s

third largest city, with a population of approximately

2.7 million people. As Mayor, amicus oversees the

Departments of Police, Fire, Transportation, Streets

and Sanitation, and Water Management, as well as

numerous other departments and agencies that

provide services vital to the health and welfare of the

people of Chicago. The City of Chicago has

approximately 32,000 employees, and more than 90%

are unionized. There are roughly half a million union

households in Chicago and Cook County.

Amicus James F. Kenney is the ninety-ninth Mayor

of the City of Philadelphia, the Nation’s fifth-largest

city, with a population of approximately 1.5 million

people. As Mayor, amicus oversees all operating

departments that provide services vital to the health

and welfare of the people of Philadelphia. The City of

Philadelphia has more than 28,000 employees,

approximately 23,000 of whom are represented by

unions.

Amicus Bill de Blasio is the 109th Mayor of the City

of New York, the Nation’s largest city, with a

population of over 8.5 million people. As Mayor,

amicus oversees around 50 city agencies responsible

for preserving and promoting the public health and

welfare of the people of New York City. The City

employs more than 380,000 employees, about 95% of

whom are represented by a union.

In amicis experience, maintaining a _ positive

collective bargaining system is integral to the effective

management of the public sector workforce, and a

fairly administered agency-fee requirement is in turn

integral to the success of the collective bargaining

process. The benefits of a stable, and adequately

funded, employee representative encompass much

more than merely ensuring labor peace and avoiding

debilitating strikes and other disruptions. Amici have

found that working cooperatively with unions as

effective employee representatives has yielded, and

promises to continue to yield, fruitful labor-

management cooperation that improves the quality

and efficiency of government services delivered to the

public.

With respect to public sector collective bargaining,

as with many important governance issues, this Court

has long recognized the importance of affording state

and municipal authorities the discretion they need to

carry out their responsibilities in a manner that is

responsive to particular local conditions and needs. A

ruling from this Court that overrules Abood v. Detroit

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

state and municipal government employers the option

of requiring agency fees within the framework of

collective bargaining would thus amount to “judicial

intervention in the conduct of governmental operations

to a degree inconsistent with sound principles of

federalism and the separation of powers.” Garcetti v.

Ceballos, 547 U.S. 410, 423 (2006).

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

Amici are responsible for ensuring that their

communities are safe, harmonious and productive.

And they serve closest to and are directly accountable

to the people. Delivering effective police and fire

protection, clean and well-maintained thoroughfares,

and good public schools, as well as myriad other

important services effectively and efficiently is what

they are elected to do.

To fulfill their obligations, municipal and county

executives must be able to respond flexibly to local

conditions and needs, which can vary dramatically

from place to place. For that reason, these officials

have always been afforded wide latitude under our

Constitution to carry out the basic obligations of public

administration. That deference is a core manifestation

of our commitment to federalism. We value and

protect the exercise of governmental authority by

leaders closest to the people because they are in the

best position to respond effectively to the people's

needs.

This principle is vital to the ability of municipal and

county executives to manage their public workforces.

For it is through management of the workforce that

government ultimately fulfills its obligation to deliver

public services effectively and efficiently. Different

government employers face different local cultures,

different histories and different labor markets. They

have therefore drawn upon their accumulated

expertise in public administration and_ their

understanding of local needs, conditions, and practices

to adopt a wide range of varying approaches to labor-

management relations.

These decisions in turn reflect judgments about how

best to accommodate the government's interest as an

employer in effective and efficient delivery of public

services, the public’s interest in receiving those

services, and the interests of public employees. In

particular, because experiences and expectations about

unionization vary widely across the country, public

employers must choose whether to forbid collective

bargaining, to accept it grudgingly, or to embrace and

seek to channel it to optimize workforce management

and public administration. There is no single right

answer. What is critical is that state and local

governments have the discretion to choose the course

that makes most sense for them.

In making that choice, governments can pursue

various collective bargaining goals, some more modest

and others more ambitious. At the most basic level,

recognizing collective bargaining rights can reduce the

risk of labor strife, and in particular crippling strikes.

See Br. for New York et al., at 13-20, Friedrichs v. Cal.

Teachers Ass'n, 136 S. Ct. 1083 (2016) (Mem.) (No. 14-

915). As a further step, public employers can also seek

a more normalized and sustained collective bargaining

framework that ensures a reliable mechanism for

addressing employee concerns. That framework can

address employee compensation, tailoring the mix of

salary and benefits to match employee priorities,

Richard B. Freeman & James L. Medoff, What Do

Unions Do? 15 (1984), thereby allowing public

employers to improve satisfaction, reduce turnover,

and compete more effectively for talent. It can also

respond to employee grievances through a process

employees perceive as fair and reliable, in part because

their union is a vital participant. See id. at 104-105,

108-09.

Beyond that, collective bargaining may also foster

more effective and efficient public administration. By

working cooperatively with a union, management can

persuade the union that its interest and those of its

members lie in being part of the solution, rather than

an antagonist of management. See Joel Cutcher-

Gershenfeld, The Impact on Economic Performance of

a Transformation in Workplace Relations, 44 ILR Rev.

241, 244-45, 258 (1991). Unions thus have greater

incentives to encourage workers to support

management efforts to improve workplace functioning.

That buy-in can take the form of more committed

employee participation in self-correcting innovations

than might otherwise be achieved, generating

improvements to the workplace and to the delivery of

public services. See id. at 244-45.

In particular, the union can persuade the public

employee workforce that it has a real stake in not

opting out of management's efforts to improve

efficiency and effectiveness. The union can provide a

means for more nuanced input into improving the

workplace, including criticism of current management

approaches and the current workforce performance, in

a manner that minimizes the risk to employees of

providing that input. See Sandra E. Black & Lisa M.

Lynch, How to Compete: The Impact of Workplace

Practices and Information Technology on Productivity

8 (Nat'l Bur. Of Econ. Research, Working Paper No.

6120, 1997) (discussing these benefits in the private-

sector context); Freeman & Medoff, supra, at 15.

Fostering this kind of positive collaboration requires

the development of bilateral trust relationships. It also

requires an environment that encourages members of

the workforce to work together with management,

rather than see management efforts to increase

efficiency and productivity as counter to employees’

interests.

Each tier of commitment to collective bargaining

entails a different balance of efficiencies. All work

better if the union is a secure institution that is not

constantly campaigning in order to survive. That is,

the government benefits when the union does not feel

that it must constantly “prove itself’ by stoking

antagonism toward the government employer in an

effort to convince employees that they need the union’s

protection and should therefore join it and contribute

financially despite the lack of any requirement to

contribute or direct individualized benefit from doing

so. See Lloyd G. Reynolds, Labor Economics and

Labor Relations 444 (8th ed. 1982). A stable collective

bargaining framework can thus allow unions to

contribute to the public employer's efforts to achieve

the kind of cooperative, innovative workforce that can

meaningfully improve the efficiency and effectiveness

of public services. See Freeman & Medoff, supra, at

165.

A constitutional ruling forbidding public employers

from including agency-fee requirements in a collective

bargaining framework would be antithetical to the

interest of state, municipal and county governments in

sound public administration — particularly the more

ambitious efforts to enlist employee cooperation in

improving public services. Such a ruling would

invariably introduce intractable free-rider problems.

The duty of fair representation obligates a union to

represent the interests of all its members. Every

employee can therefore expect to receive the benefits of

union representation in the collective bargaining

process (and in the administration of collectively

bargained agreements) whether the _ individual

contributes a fair share of the associated costs or

chooses instead to free-ride on the financial

contributions of their fellow workers. See Casey

Ichniowski & Jeffrey S. Zax, Right-to-Work Laws, Free

Riders, and Unionization in the Local Public Sector, 9

J. Lab. Econ. 255, 257 (July 1991).

For each employee, the choice not to join the union

or contribute to defraying the cost of collective

bargaining is understandable, and may not reflect any

lack of support for the union’s positions. While many

employees may well choose to support the union

despite these incentives, it is reasonable to assume

that many will not, given that there will be no

relationship between an individual’s choice and the

benefits to be received. See Mancur Olson, The Logic of

Collective Action 76, 88 (2d ed. 1971). And this

incentive structure gives rise to a vicious cycle. Each

employee who chooses not to support the union

increases the cost to the employees who continue to

provide financial support. See Ichniowski & Zax,

supra, at 257. As the costs of support continue to

escalate, the pressure to opt out intensifies.

Faced with these pressures, an “us versus them”

mentality can become pervasive. Where the workforce

may already feel exploited by their employer, unions

are incentivized to focus on management disputes in

order to demonstrate the immediate benefits they can

provide to employees. Opportunities for cooperation

can quickly devolve into acrimonious disputes with

management. See Reynolds, supra at 444. Unions will

also face increased pressure to deliver short-term

palpable benefits to their members in order to convince

workers to stick with the union. That constraint

diminishes the prospects for cooperative arrangements

that may have longer term payoffs for workers as well

as management, even at the cost of foregoing some

short-term benefits.

The free-rider problem can also generate acrimony

among members of the workforce, further impeding the

government's interest in effective and efficient delivery

of public services. It stands to reason that employees

who join the union and thereby contribute their fair

share to the substantial cost of the collective

10

bargaining process (and to contract administration)

will resent those who choose to free ride. Those kinds

of conflicts are corrosive of workplace morale. They

can be particularly threatening to the public interest

when the performance of government employees (police

officers, firefighters, and corrections officers such as

those represented by Respondent, for example) vitally

depends on cooperation between workers responsible

for responding to hazardous or dangerous situations.

Given that more than twenty States and the

District of Columbia have (with some variation in the

specifics) authorized agency fees in the context of

collective bargaining with public employee unions, a

decision by this Court to overrule Abood would cause

widespread disruption of existing arrangements and

the workplace stability they secure. It would also deny

to the governments closest to the people an option that

many of them have found important to their ability to

carry out their responsibilities. And it would do so on

the basis of an evaluation of the legitimacy and

strength of governments’ managerial interests that the

judicial branch is particularly ill-equipped to make.

Overruling Abood would also mark a sharp and

anomalous departure from this Courts First

Amendment precedents. This Court has consistently

recognized that when government acts in its capacity

as an employer managing its workforce, rather than in

its capacity as a sovereign regulating the citizenry, it

should be given a wide berth. So long as a restriction

on employee speech reasonably advances the employer

interest in managing its workforce, it will be upheld —

and this is so even when an employee speaks as a

1]

citizen on a matter of public concern. Garcetti, 547

U.S. at 418.

That core principle is fully applicable here. A

government employer's managerial prerogatives are

every bit as important in the collective bargaining

context as they are in other areas of public

administration. And a government employee's interest

in not paying agency fees to support collective

bargaining is certainly no weightier (if anything it is

less weighty) than an employee's interest in speaking

as a citizen on matters of public concern. Treating

public sector agency fees as categorically different from

other public employee speech thus lacks any principled

justification. Overruling Abood would therefore not

only be wrong on its own terms, but ‘vould also

profoundly threaten the long-established principles of

deference that afford municipal and county executives

the breathing space they need to deliver vital public

services effectively and efficiently.

ARGUMENT

Il. First Amendment doctrine recognizes a

vitally important distinction between

government as an employer and

government as a sovereign.

This Court’s First Amendment jurisprudence has

long recognized that “the Government, as an employer,

must have wide discretion and control over the

management of its personnel and internal affairs.”

12

Connick v. Myers, 461 U.S. 138, 151 (1983) (citation

omitted). That is because “government has a

substantial interest in ensuring that all of its

operations are efficient and effective.” Borough of

Duryea v. Guarnieri, 564 U.S. 379, 386 (2011). To

accommodate that interest, this Court has repeatedly

held that “a government entity has broader discretion

to restrict speech when it acts in its employer role”

than when it acts as a sovereign regulating the

citizenry. Garcetti, 547 U.S. at 411. Correspondingly,

when a citizen chooses to accept government

employment, “the citizen by necessity must accept

certain limitations on his or her freedom.” /d. at 418;

accord Guarnieri, 564 U.S. at 387 (restrictions on

public employee speech “are justified by the consensual

nature of the employment relationship and by the

unique nature of the government’s interest.”).

In fact, as a matter of original historical

understanding, conditions on public employment

related to an employee’s speech were not considered a

First Amendment “abridgement of speech” at all. Until

the mid-Twentieth Century, “the unchallenged dogma

was that a public employee had no right to object to

conditions . . . of employment — including those which

restricted the exercise of constitutional rights.”

Garcetti, 547 U.S. at 417; Connick, 461 U.S. at 143;

McAuliffe v. Mayor of New Bedford, 29 N.E. 517, 517

(Mass. 1892) (Holmes, J.) (A policeman “may have a

constitutional right to talk politics, but he has no

constitutional right to be a policeman.”). Government

employers often filled positions using political

affiliation as a criterion “without any thought that it

could be unconstitutional . . . from the earliest days of

13

the Republic.” Rutan v. Republican Party, 497 U.S. 62,

96 (1990) (Scalia, J., dissenting).

The original historical understanding gave way “in

the 1950s and early 1960s,” in cases involving

requirements that “public employees . . . swear oaths of

loyalty to the State and reveal the groups with which

they associated.” Connick, 461 U.S. at 144. These

decisions addressed the risk that government might, in

regulating the speech of public employees qua

employees, “leverage the employment relationship to

restrict, incidentally or intentionally, the liberties

employees enjoy in their capacities as private citizens.”

Garcetti, 547 U.S. at 419.

Even then, the Court cabined its departure from the

foundational principle of deference to government’s

managerial prerogatives. The Court differentiated

between employment conditions that reflect the same

interests that a private employer would have in

maintaining workforce effectiveness, and those that

threaten to restrict a public employee's rights as a

private citizen outside the workplace. The former

continued to receive deferential review, while the latter

drew more exacting constitutional scrutiny.

That important distinction reflects the doctrine’s

long-standing respect — and the Court's continuous

solicitude — for the government’s prerogatives as an

employer. As long as a public employer acts qua

employer, the doctrine gave great weight to its

managerial interest, even in the face of an employee's

First Amendment interests. For example, in upholding

a provision of the Hatch Act, the Court recognized that

the government was “responsible for an efficient public

14

service,” and could reasonably decide that “efficiency

may be best obtained by prohibiting active

participation by classified employees in politics as

party officers or workers.” United Pub. Workers of Am.

(C.L.O.) v. Mitchell, 330 U.S. 75, 99 (1947). The Court

balanced “the interference with free expression . . . as

compared with the requirements of orderly

management of administrative personnel.” /d. at 94.

The Court has applied this balancing approach

consistently in evaluating employment rules that

affected the speech interests of public employees. It

has applied this approach in evaluating requirements

that apply prospectively to an entire class of employees

as well as those that affected only individual

employees, and it has done so in cases where

government compelled employee speech as well as

those that restricted employee speech. See,

e.g., Wieman v. Updegraff, 344 U.S. 183, 191-92 (1952)

(discussing the Court's approach in Mitchell and

striking down the challenged employee loyalty oath

because it was arbitrary); Shelton v. Tucker, 364 U.S.

479, 485-86, (1960) (balancing the state’s interest in

“inquir[ing] into the fitness and competence of its

teachers” and a “teacher’s right of free association, a

right closely allied to freedom of speech”).

In Pickering v. Board of Education of Township

High School District 205, 391 U.S. 563, 568 (1968), the

Court cited Wieman and Shelton to support the

balancing framework it applied to evaluate a public

employee’s claim that he was_ unconstitutionally

penalized for expressive activities. The Court

reiterated that when evaluating employment-related

burdens on speech, the appropriate First Amendment

15

approach “balance[s]} . .. the interests of the

[employee], as a citizen, in commenting upon matters

of public concern and the interest of the State, as an

employer, in promoting the efficiency of the public

services it performs through its employees.” /d. at 568.

In the decades since Pickering, this Court has

continued to refine this balancing approach in cases

involving First Amendment challenges to public

employment conditions. See Connick, 461 U.S. 138;

Garcetti, 547 U.S. 410; Guarnieri, 564 U.S. 379

(applying the balancing framework to a Petition

Clause claim). As definitively articulated in Garcetti,

if an employee does not speak “as a citizen on a matter

of public concern,” the “employee has no First

Amendment cause of action” at all. Garcetti, 547 U.S.

at 418. Even if the employee does speak on a matter of

public concern, the employee’s claim fails if “the

relevant government entity had an adequate

justification for treating the employee differently from

any other member of the general public.” Jd.

Under this test, the level of scrutiny is not dictated

by the motivation of the employee — that is, whether

the employee seeks to speak as a citizen on a matter of

public concern. See Connick, 461 U.S. at 147-48

(“Whether an employee’s speech addresses a matter of

public concern must be determined by the content,

form, and context of a given statement”); accord Lane

v. Franks, 134 S. Ct. 2369, 2380 (2014); Rankin v.

McPherson, 483 U.S. 378, 386 (1987). Instead, the

level of scrutiny depends on whether the speech takes

place within the context of the employment

relationship and whether the government has limited

the employee’s speech interest in order to advance its

16

interest in carrying out the government's business. See

generally Waters v. Churchill, 511 U.S. 661, 672-75

(1994) (plurality opinion); Connick, 461 U.S. at 147-48.

As the Court has repeatedly made clear, these

decisions reflect a “cautious and restrained approach to

the protection of speech by public employees,”

Guarnieri, 564 U.S. at 389, that does not impose “an

unduly onerous burden on the State” to justify its

conduct. Connick, 461 U.S. at 149. This balancing is

necessary, even in the face of potentially substantial

employee speech interests, because “the government's

interest in achieving its goals as effectively and

efficiently as possible is elevated from a relatively

subordinate interest when it acts as a sovereign to a

significant one when it acts as employer.” Engquist v.

Oregon Dep't of Agric., 553 U.S. 591, 598 (2008)

(citation omitted). That the Court would recognize the

strength of this governmental interest is hardly

surprising. Public employers face many of the same

challenges as their private sector counterparts. They

need comparable authority and flexibility, including

the ability to use managerial methods commonly used

in the private sector to address analogous problems.

Il. Abood strikes the same balance as does the

Pickering/Garcetti framework.

The crux of the Court's employment-conditions

jurisprudence is that the First Amendment permits

restrictions on employees’ expressive interests within

the context of the employment relationship, so long as

they bear a_ reasonable relationship to the

government's interest as an employer. Thus, an

17

employee can be penalized even for speech on matters

of public concern when the public employer has an

“adequate” employment-related justification. Garcetti,

547 U.S. at 418.

The same balance of interests is at the heart of the

agency fee issue now before the Court. Once a

workforce majority has chosen collective bargaining

and selected a bargaining representative, a public

employer can reasonably conclude that its interests are

best served by ensuring that the representative is

secure in its position, and able to perform its role

within the collective bargaining system. The employer

therefore can appropriately decide that agency fees

covering costs germane to collective bargaining,

contract administration and grievance adjustment are

integral to achieving the benefits of collective

bargaining. The government, however, cannot require

that public employees support a union’s political or

ideological activity outside the structured collective

bargaining relationship.

Abood reflects a weighing of precisely these

interests. The primary argument the Court considered

was that public-sector agency fees violated the

principle that “public employment cannot be

conditioned upon the surrender of First Amendment

rights.” 431 U.S. at 226. The challengers expressly

relied on Pickering and Perry v. Sindermann, 408 U.S.

593 (1972). Appellants’ Br. at 35, Abood, supra, No.

75-1153 (July 9, 1976). In rejecting that claim, the

Court afforded the government's managerial interests

the deference that was the hallmark of its First

Amendment jurisprudence. At the same time, the

Court distinguished between activities germane to

collective bargaining within the employment

relationship (which agency fees could fund), and

political activities outside the relationship (which such

fees could not fund), citing Sindermann and Elrod v.

Burns, 427 U.S. 347 (1976). See Abood, 431 U.S. at

225-29, 234. The Court did not expressly invoke

Pickering as support for its balancing approach,

because there would have been no reason to single out

that particular case. It was merely one example of the

First Amendment framework that the Court had

consistently applied for decades in the public

employment context.

Like the public employment cases that preceded it,

Abood rests on the understanding that when

government acts as an employer, its managerial

prerogatives justify burdening employee speech

interests so long as they reasonably advance the

government's interest in delivering public services

efficiently and effectively. Applying this principle in

Abood was particularly appropriate, as the challenged

government practice (the fee system) was borrowed

from familiar private sector practices used by private

employers to solve similar labor relations problems and

achieve similar benefits. Indeed, Congress itself had

authorized the use of just such practices in the private

sector to achieve these ends. The Court in Abood thus

drew on its earlier decision in Railway Employes’

Department v. Hanson, 351 U.S. 225 (1956), which

upheld a comparable arrangement in the private sector

context. See 431 U.S. at 217-19. Hanson recognized

that Congress had endorsed collective bargaining

supported by agency fees in the Railway Labor Act as a

legitimate option for employers to manage employment

19

relations. Abood simply afforded public employers

comparable discretion.

Abood thus recognized that government has

weighty interests in positive labor relations, and that a

stable collective bargaining structure with an exclusive

representative can advance those interests. A

collective bargaining system provides for an agreed-

upon and orderly system for incorporating employee

preferences and concerns into personne!

administration operations. Should such a system not

function properly, public agencies could experience

crippling disruptions that would damage their ability

to deliver public services. They could also find

themselves unable to attract or retain the most

talented workers. As importantly, stable and

productive labor-management relations are conducive

to the kind of employer-employee partnerships that

increase effectiveness and efficiency in delivering

public services.

Although exclusive representation can thus serve

the government's interests, it also creates a free-rider

problem that can threaten the financial stability of the

union and defeat the very purposes for which

government may choose collective bargaining in the

first place. See supra, pp. 8-9. A government employer

can reasonably conclude that without adequate

funding a union will struggle to represent employees

effectively. After all, bargaining is not just about

showing up to a negotiation session. “The tasks of

negotiating and administering . . . the interests of

employees in_ settling disputes and processing

grievances are continuing and difficult ones” that can

require “[t}he services of lawyers, expert negotiators,

20

economists, and a research staff, as well as general

administrative personnel.” Abood, 431 U.S. at 221. An

underfunded exclusive representative may lack the

resources needed to negotiate and implement

agreements that advance employee interests effectively

— thereby undermining both the employer and the

employees’ objectives in choosing collective bargaining.

A public employer can also reasonably conclude that

requiring union members to bear the costs of a

bargaining agent’s efforts on behalf of other employees

— including those who welcome and benefit from union

representation, but chose to allow others to pay their

share of the costs — is fundamentally unfair because it

effectively penalizes union members. Abood, 431 U.S.

at 221-22. In effect, union members end up with lower

take-home pay than nonmembers based solely on their

choice to provide the necessary support for the union.

A public employer can reasonably determine that such

unequal distribution of costs — which imposes serious

burdens on the associational interests of the

workforce’s majority — will spawn resentment that will

hamper its public mission. See Communications

Workers of Am. v. Beck, 487 U.S. 735, 749-50 (1988).

Furthermore, if a union has to convince employees

to contribute financially despite the powerful

incentives not to, it will be much more likely to resort

to an “us against them” approach to relations with

management in order to prove its value to its

membership. See supra, p. 9. Needless to say, that

would seriously undermine the public employers’

efforts to use collective bargaining to improve

workforce morale and implement innovative

approaches to delivering government services.

21

The free-rider problem is therefore not principally

about employees who, for ideological reasons, oppose

union policies advanced in collective bargaining. The

problem stems more broadly from “the employee who is

happy to be represented by a union but won't pay any

more for that representation than he is forced to,” and

who therefore “wants merely to shift as much of the

cost of representation as possible to other workers, i.e.,

union members.” Gilpin v. AFSCME, 875 F.2d 1310,

1313 (7th Cir.) (Posner, J.), cert. denied, 493 U.S. 917

(1989).

It is for these reasons — ultimately to ensure that

the collective bargaining system best achieves its

purposes — that when “the state imposes upon the

union a duty to deliver services, it may permit the

union to demand reimbursement for them” from

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

507, 556 (1991) (Scalia, J. concurring in the judgment

in part and dissenting in part). Put simply, agency

fees are a_ legitimate solution to a_ personnel

management problem for employers seeking the

benefits of collective bargaining. This Court has

repeatedly recognized the arrangement as a legitimate

means of addressing the free-rider problem, in both the

private and public sectors. Air Line Pilots Ass'n v.

Miller, 523 U.S. 866, 872-73 (1998); Keller v. State Bar

of Cal., 496 U.S. 1, 12 (1990); Abood, 431 U.S. at 224;

International Ass'n of Machinists v. Street, 367 U.S.

740, 765-66 (1961). And Congress, like many States,

has determined as a policy matter that requiring each

employee in a bargaining unit to defray a

representative's costs is one appropriate means of

22

solving that problem. 29 U.S.C. § 158(a)(3); 45 U.S.C.

§ 152 (Eleventh); see Beck, 487 U.S. at 755-56.

By the same token, the free-rider problem in

collective bargaining is not equivalent to the moral

hazard created by any organization that advocates

policies favored by nonmembers. First, unlike political

or ideological organizational activities among the

general public, these activities take place within the

system designed by the public employer to further

workplace efficiency goals that a public employer has

every right to further, including by imposing

obligations on employees in their capacity as

employees. Second, as Justice Scalia explained, the

analogy to political or ideological organizing misses

“what is distinctive . . . about the ‘free riders’ who are

nonunion members of the union’s own bargaining

unit.” Lehnert, 500 U.S. at 556. “/TJhey are free riders

whom the law requires the union to carry — indeed

requires the union to go out of its way to benefit, even

at the expense of its other interests.” /d. (emphasis in

original).

To the extent that an agency-fee requirement

impinges upon the speech interests of government

employees, that impingement is no different in kind or

degree from the kinds of speech restrictions this Court

has routinely upheld in cases such as Garcetti. Unlike

public employment conditions that limit an employee’s

ability to speak on a matter of public concern, an

agency-fee requirement operates entirely within the

structure of a government’s employment relations.

In adopting collective bargaining, the government

decides that — assuming a majority of the workforce

23

chooses an exclusive representative — the collective

bargaining framework will be part of the official

system of personnel administration. In effect, the

union assumes “official responsibility’ within that

system as the “exclusive representative” of the

workforce. Perry Educ. Ass'n v. Perry Local Educators

Ass'n, 460 U.S. 37, 51 (1983). Agency fees support the

exclusive representative's official role within the

channels the government has chosen to create for

contract negotiation, contract administration, and

grievance resolution. The fees impose obligations on

employees qua employees as part of their employment

responsibilities. Agency fees are thus no different from

the workplace rules at issue in Garcetti, Connick, and

other cases in which an employee complained that

restrictions on workplace activity infringed the

employee’s right to speak on a matter of public

concern. dust like employee speech restrictions, a

public employer's decision to require agency fees to

maintain the credibility and stability of the union

within the collective bargaining system is an entirely

legitimate exercise of the government's management

prerogatives. In sum, these obligations are imposed by

the government in its capacity as employer, on

employees in their capacity as employees, in

furtherance of employer labor-relations interests.

To be sure, different employers with different

workforce conipositions, histories, needs, and values

may make their own judgments about how to manage

their workforces. Some States do not permit collective

bargaining by public employees; others have

authorized collective bargaining but not agency fees;

and over 20 States have authorized agency fees for

24

some or all employees. These diverse models no doubt

reflect varying assessments of the impact and

unfairness of the free-rider problem. They likely also

reflect different labor market conditions, workforce

cultures, and labor-management experiences in their

regions — as well as genuine policy disagreements

about whether, and to what degree, public-sector

collective bargaining can advance the public interest.

But the fact that different States have chosen

different paths cannot possibly justify barring all

public employers from choosing agency fee

arrangements intended to promote cooperative and

productive labor’ relations in _highly-complex

environments, such as those Amici govern. Invoking

the First Amendment to force state and local

governments into a_ one-size-fits-all strait jacket

ignores local conditions and experiences and amounts

to “judicial intervention in the conduct of governmental

operations to a degree inconsistent with sound

principles of federalism and the separation of powers.”

Garcetti, 547 U.S. at 423.

Ill. The case for overruling Abood is wholly

unpersuasive.

For more than forty years, Abood has provided a

stable First Amendment framework for evaluating

state and local laws that impose agency-fee

requirements on public employees. In the more than

20 States that have authorized agency fees for public

employee unions, the entire structure of labor-

management relations has developed in reliance on

Abood’s approval of such fees. To be sure,

25

disagreements have arisen over where to draw the line

between germane union activities that may properly be

supported by agency fees and non-germane political or

ideological activity that may not. See Lehnert, 500 U.S.

507. But until this Court’s very recent decisions in

Knox v. Service Emps. Intl Union, 132 S. Ct. 2277

(2012), and Harris v. Quinn, 134 S. Ct. 2618 (2014), the

Court had not so much as intimated that Abood should

be revisited. To the contrary, the Court unanimously

reaffirmed Abood as recently as 2009. See Locke v.

Karass, 555 U.S. 207, 209, 213 (2009) (recognizing the

“general . . . principle” that “[t]he First Amendment

permits the government to require both public sector

and private sector employees” to “pay a service fee to

the local union that acts as their exclusive bargaining

agent’).

Language in the Court’s decisions in Knox and

Harris questioned Abood’s soundness, at least as a

principle deserving expansion into new contexts. But

both cases involved idiosyncratic factual scenarios that

did not implicate Abood’s core concerns, as each case

involved a context far removed from the i: tegrity of the

basic collective bargaining systems governing a public

employee workforce. In Knox, the Court invalidated a

one-time exaction intended solely to fund a union’s

political activities which did not advance the

government's interest as an employer. Because the

exaction had nothing to do with the effective operation

of the collective bargaining system, the Court applied

the heightened scrutiny appropriate when government

regulates the citizenry as sovereign. And Harris

involved individuals who were not full-fledged public

employees at all. Their principal employers were

26

private individuals, and they worked in private homes.

Indeed, as this Court emphasized, aside from

provisions requiring collective bargaining, most of the

laws that governed public sector employment did not

even apply to these workers. 134 S. Ct. at 2634-35.

Because the agency fees in that context bore such an

attenuated relationship to the government's

managerial prerogatives, the Court again applied

heightened scrutiny.

Whatever the motivation for the Court’s statements

about Abood in Knox and Harris, the Court must now

decide whether to take the rare and dramatic step of

overruling a longstanding constitutional precedent

that has generated substantial reliance interests. A

careful analysis of Abood’s place in this Court’s First

Amendment jurisprudence — and of the propriety of

second-guessing the judgments of democratically

accountable governments about how best to respond to

local conditions on a matter at the core of their official

responsibilities — should yield only one conclusion:

Abood must be reaffirmed.

Petitioner and the United States nevertheless

contend that Abood should be overruled. That is not

because of any sea change in the law that undermines

the decision’s jurisprudential foundation (indeed, the

opposite is true, as the above discussion demonstrates).

Nor is it due to any changes in underlying statutory

frameworks or social conditions that undermine the

decision’s factual basis. Rather, according to Petitioner

and the United States, Abood was simply wrong,

undervaluing public employees’ First Amendment

interests in resisting collective bargaining and

27

overvaluing the government's manageria! interest in

utilizing that framework.

Those arguments are groundless. Nothing has

changed since Abood that would justify concluding that

the speech interests of employees qua employees in

avoiding the obligation to pay agency fees should

trigger exacting (much less strict) First Amendment

scrutiny. And no developments since Abood call into

question the strength of the government’s interest as

an employer in being able to choose agency-fee-

supported collective bargaining as a tool of effective

public administration. At bottom, the arguments for

overruling Abood come down to antipathy to collective

bargaining as a legitimate method of managing the

public sector workforce. While Petitioner, and

particularly the United States, insist that other

managerial choices that may infringe public employee

speech interests would still receive deferential review,

they single out collective bargaining that includes

agency fees for exacting First Amendment scrutiny

that they would never countenance elsewhere.”

2 Until it filed its brief in this case, the United States had

endorsed Abood as striking the appropriate balance between

public employee speech interests and the important interests of

government, in its role as manager of the public workforce.

U.S. Amicus Br., Harris v. Quinn, 134 S. Ct. 2618 (2014) (No.

11-681); U.S. Amicus Br., Friedrichs v. California Teachers

Ass'n, 136 S. Ct. 1083 (2016) (Mem.) (No. 14-915). The United

States now believes that the governmental interests it

previously thought important are insubstantial. It goes so far

as to advocate a level of scrutiny here that would far exceed the

level of scrutiny it believes should apply when a public

employee speaks as a citizen on matters of public concern. See

28

Equally troubling, and despite their blithe

assurances to the contrary, the arguments advanced by

Petitioner and the United States threaten the well-

established First Amendment principles that

undergird the Garcetti framework. What Petitioner

and the United States assert about public sector

collective bargaining — that it necessarily involves

matters of public concern, thereby triggering exacting

scrutiny when government imposes agency-fee

requirements — is equally true about most questions

that arise in First Amendment cases under Garcetti.

Any argument that the two should receive different

levels of scrutiny lacks a principled foundation.

Overruling Abood would therefore call _ this

longstanding framework into question and subject

government managerial decision-making to the kind of

intrusive judicial micromanagement that this Court in

the past has taken pains to prevent.

Employee interests. The argument that public

employee speech interests are entitled to greater

weight here than in the Garcetti context is wholly

unpersuasive. Petitioner and the United States insist

that a typical Garcetti case involves only the

comparatively insubstantial interest of an individual

employee complaining about discipline incurred for

violating a workplace requirement. This is in contrast

to what they claim is the broad class-wide harm an

agency-fee requirement may inflict on employees

opposed to paying such fees. See U.S. Amicus Br. at

10. That claim is wrong in every particular.

U.S. Amicus Br. at 9-10, Garcetti, supra (No. 04-473)

(advocating for a deferential balancing framework).

29

To begin with, as a matter of bedrock First

Amendment principle, the speech interests of

individual employees adjudicated under the Garcetti

framework are at least as substantial as the interests

Petitioner asserts here — particularly when the

employee’s speech involves a matter of public concern,

as it often does. Moreover, this Court has applied its

balancing approach to speech-related conditions on

public employment in cases involving broad class-wide

rules as well as cases involving individual employee

grievances. See p. 14 supra. And Petitioner and the

United States identify no persuasive reason why the

Garcetti framework would not continue to apply to a

case challenging class-wide restrictions on employee

speech on matters of public concern, as it does in cases

involving individual employee disputes over discipline.

Because First Amendment rights belong to the

individual, the claims of each class member in such a

scenario would be no stronger or weaker than the

claims of the class as a whole.*

Petitioner and the United States also exaggerate

the extent to which agency fees infringe employee

speech interests. Mandatory agency fees affect an

employee only within the structure of the employment

8 This Court's decision in United States v. National Treasury

Employees Union, 513 U.S. 454 (1995), is not to the contrary.

The Court afforded heightened First Amendment protection to

government employee speech interests in that context because

the restriction at issue — which barred the receipt of honoraria

by federal Executive Branch officials for any speech activity —

imposed a uniquely sweeping ban that covered expressive

activities across the country, even those with no connection

whatsoever to the employees job responsibilities.

30

relationship. They have no effect on the employee as u

citizen, nor even on the employee's ability to publicly

speak out or organize against the union, the negotiated

terms, or the collective bargaining system itself.

Lehnert, 500 U.S. at 521 (opinion of Blackmun, J.)

(employees may “petition their neighbors and

government in opposition to the union which

represents them in the workplace”); City of Madison,

Joint Sch. Dist. No. 8 v. Wisconsin Emp’ Relations

Comm'n, 429 U.S. 167, 175-76 n.10 (1976) (employees

may join anti-union organizations, or lobby their

elected representatives, even opposing their unions’

positions); Abood, 431 U.S. at 230.

Moreover, Petitioner's claim is entitled to no greater

First Amendment solicitude because it is cast in terms

of “compelled speech” rather than compelled silence.

See Riley v. National Fed’n of the Blind of N.C., Inc.,

487 U.S. 781, 796 (1988). When a public employee

pays an agency fee, the only message the employee

conveys is that he or she is an employee subject to a

government fee required to support the union’s official

functions within the employer's system. An employee

is not forced to associate with the union in any

meaningfully expressive sense, or to endorse the

union’s goals or message in any way. There is

certainly no basis for affording this employee speech

interest greater First Amendment weight than an

employee's right to speak as a citizen on matters of

public concern.

Government interests. Petitioner and the United

States also inappropriately denigrate the

governmental interests at stake. Most strikingly, they

make the unsupported assertion that a governmental

31

interest in collective bargaining has “little to do with

the concerns of workplace discipline and efficiency

usually given weight in Pickering balancing,” and

therefore claim that this interest does not justify the

deference accorded in Garcetti. U.S. Amicus Br. at 28.

That is self-evidently wrong. The threat to the

government's interests as an employer, and the risks of

widespread public service disruption, are far greater in

matters involving large numbers of employees than in

a grievance concerning a single individual. A transit

strike is obviously more damaging to public

administration than the reaction of a disgruntled token

booth operator whose speech is restricted by a work

rule. And more generally, collective bargaining

agreements typically create and provide for the

administration of the personnel management systems

on which effective delivery of public services depends.‘

The arguments advanced by Petitioner and the

United States on this point ignore the tight connection

between collective bargaining and the dispute

* This Court's decisions regarding political patronage

practices provide no support for Petitioner's position. This

Court has restricted the government's ability, in most cases, to

use party affiliation as a prerequisite for public employment

precisely because the connection between patronage practices

and the government's interest in effective public administration

is highly attenuated for most positions in the public sector.

Rutan, 497 U.S. at 74. Even so, government may consider

political affiliation if it “can demonstrate that party affiliation

is an appropriate requirement for the effective performance of

the public office involved,” as is the case with some

policymaking jobs. Branti v. Finkel, 445 U.S. 507, 518 (1980).

32

resolution procedures that they concede reflect

substantial governmental interests. Dispute resolution

and grievance procedures are at the core of the

collective bargaining process. The exclusive

representative (together with the public employer)

plays a critical role both in using collective bargaining

to establish the procedures used to protect employee

interests and in administering those procedures.

Again, it should be self-evident that a government's

efficiency interests as an employer encompass an

interest in maintaining employee morale — and that a

fair, credible and _ effective dispute resolution

procedure, recognized as such by employees, materially

advances that interest.

This Court's decision in Guarnieri was particularly

clear on this point. The case involved a public

employee's claim that he should be able to invoke the

First Amendment's Petition Clause to trigger exacting

scrutiny of a government's rejection of his grievance

filed in response to a disciplinary action. In rejecting

that argument, the Court recognized the central role

that formal grievance procedures play in advancing the

government's “substantial interest in ensuring that all

of its operations are efficient and effective.” 564 U.S.

at 386. As the Court observed, “the government can

and often does adopt statutory and regulatory

mechanisms to protect the rights of employees against

improper retaliation or discipline, while preserving

important government interests.” /d. at 392.

Very often it is a collective bargaining agreement

that puts such grievance procedures in place once a

state adopts a law making grievance procedures a

subject of collective bargaining. And typically the

33

employees’ exclusive representative is responsible,

jointly with the employer, for administering such

procedures. The Court was unwilling to subject the

results of such procedures to “invasive judicial

superintendence” in Guarnieri, because doing so might

disrupt their operation. /d. at 390-91. Yet what

Petitioner and the United States propose is a

constitutional rule that would interfere with public

employers’ ability to use collective bargaining to put

just such procedures into place, imposing serious

inefficiencies on such employer operations.

Consequences. Petitioner and the United States are

equally cavalier about the consequences of overruling

Abood. The disruption of settled expectations that

have grown up around public sector collective

bargaining supported by agency-fee requirements itself

weighs powerfully against overruling Abood. What is

more, accepting Petitioner's and the United States’

effort to justify exacting scrutiny on the theory that

“public-sector bargaining inherently involves public

issues,” U.S. Amicus Br. at 10, would inevitably

undermine the Garcetti framework and threaten to

constitutionalize the entire field of workplace

management in the public sector.

Indeed, Petitioner appears to advocate precisely

that result — insisting that “[e]nforcement of a

collective bargaining agreement, such as through the

grievance process, is just as political an act as

bargaining for that deal.” Pet. Br. at 14 (emphasis

added). This is quite clearly an argument that

exacting First Amendment scrutiny should apply to

public sector discipline decisions and the grievance

procedure decisions they trigger because those actions

34

by definition involve government actors and the

expenditure of government funds. That Petitioner

would advance such an argument is powerful

confirmation of the sweeping consequences that would

follow from overruling Abood.

Petitioners argument that heightened First

Amendment interests are at stake here because of the

potentially enormous fiscal impacts of certain public

sector collective bargaining agreements, see id.,

likewise has no logical stopping point. The work of

budget analysts, pension fund managers, tax

administrators, and many other public employees can

also have potentially enormous fiscal impacts. Do

restrictions on their speech as employees now trigger

heightened First Amendment scrutiny as well?

Even more broadly, Petitioner's view of what counts

as employee speech on “public issues” that triggers

exacting (or perhaps even strict) First Amendment

scrutiny, directly threatens the Hatch Act, 5 U.S.C.

§ 7321 et seq., and parallel state and local laws limiting

partisan political activity by government employees.

Such restrictions affect expressive interests at the very

heart of the First Amendment — the right to participate

in our nation’s democratic process. If Petitioner's claim

here triggers heightened First Amendment scrutiny

because the employee interests are supposedly so

connected to citizen concerns, it is difficult to see how a

challenge to the Hatch Act would not.

Indeed, the consequences of overruling Abood would

extend further still. This Court's precedent upholding

mandatory dues requirements for attorneys who are

legally required to join integrated bar associations

35

expressly relies on, and is not distinguishable from,

Abood. See Keller, 496 U.S. 1. In Keller, the Court

upheld state rules requiring attorneys to join a state

bar association and pay dues, as long as those dues

were related to “regulating the legal profession and

improving the quality of legal services.” /d. at 13-14.

The Court invoked the “substantial analogy between

the relationship of the State Bar and its members, on

the one hand, and the relationship of employee unions

and their members, on the other.” /d. at 12. Keller

relied on Abood for good reason: both cases are based

on the Courts long-standing deference to the

government's ability to manage its operations with

respect to individuals who voluntarily enter into public

employment (or, in the case of attorneys, employment

serving the public justice system and managed by the

government).

There is no principled way to distinguish agency

fees to unions and mandatory dues to integrated bar

associations. Any argument that the latter is somehow

less “political” or involves no matters of public concern

is unsound. Keller made clear, for example, that

mandatory bar dues could support “proposing ethical

codes for the profession.” Jd. at 16. If, as Petitioner

would have it, all collective bargaining matters are

inherently political, then a grievance based on an

individual's absenteeism is sufficiently political to

trigger exacting First Amendment scrutiny. It is

difficult to see how advocating for specific rules

governing the conduct of every attorney in a state

could be considered less political. If anything, the

Court has suggested that the justifications for

imposing agency fees are stronger than those

36

supporting mandatory integrated bar dues. See id. at

12 (“The members of the State Bar concededly do not

benefit as directly from its activities as do employees

from union negotiations with management.”).

Overturning Abood would thus also open integrated

bar associations to the threat of First Amendment

challenge.

ekKKK

Amici, like all elected state, municipal and county

executives, are accountable to the people they serve.

First and foremost, they are responsible for delivering

public services efficiently and effectively. They need

the flexibility to decide which model of labor-

management relations best enhances their ability to

fulfill these responsibilities. If their choices give rise to

the kinds of problems that Petitioner and its amici

complain about, the officials who made the choices can

be held accountable at the polls.

Those responsible for administering the delivery of

necessary services to the public are in the best position

to decide whether workplace discipline and efficiency

are best enhanced by seeking to make collective

bargaining systems more effective, thus promoting

better collaboration between government managers

and their workforces and enhancing productivity. And

those who seek to deny governments the authority to

make effective use of collective bargaining have utterly

failed to make the case that a public employee's

interest in not paying mandatory agency fees deserves

a special level of First Amendment scrutiny that even

employee speech as a citizen on matters of public

concern does not receive. It would therefore be a grave

37

error for the judiciary to decide, for the first time in our

nation’s history, that the Constitution forbids state and

local governments from implementing effective

collective bargaining systems that rely on agency fees

for their effectiveness.

As bad as those consequences would be on their own

terms, a decision overruling Abood could not be

cabined in a principled manner to the particular

context of agency-fee requirements. For if agency-fee

requirements trigger exacting First Amendment

scrutiny because they implicate speech on matters of

public concern, then so too must government

workplace restrictions of the kind at issue in Connick

and Garcetti — not to mention well-established good

government measures such as the Hatch Act. To

overrule Abood is therefore to risk constitutionalizing

every employment dispute in the public sector —

thereby substituting judicial superintendence for the

politically accountable judgments of seasoned public

administrators, draining public resources’ into

unproductive litigation, and further undermining the

effective conduct of the public’s business. This Court

should not take that step.

CONCLUSION

The decision of the Court of Appeals should be

affirmed.

Respectfully submitted,

EDWARD N. SISKEL

CORPORATION COUNSEL OF

THE CITY OF CHICAGO

30 N. LaSalle Street,

Suite 800

Chicago, IL 60602

ATTORNEY FOR AMICUS,

MAYOR RAHM EMANUEL

JANUARY 19, 2018

38

DONALD B. VERRILLI, JR.

Counsel of Record

DAHLIA MIGNOUNA

MUNGER, TOLLES & OLSON LLP

1155 F. Street, NW, 7th Floor

Washington, D.C. 20004

donald. verrilli@mto.com

(202) 220-1100

SoZ! PEDRO TULANTE

CiTy SOLICITOR FOR THE

CITY OF PHILADELPHIA

1515 Arch Street,

17 Floor

Philadelphia, PA 19102

ATTORNEY FOR AMICUS,

MAYOR JAMES KENNEY