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

No. 16-1466

3n the

Supreme Court of the United States

MARK JANUS,

Petitioner,

Vv.

AMERICAN FEDERATION OF STATE, COUNTY, AND

MUNICIPAL EMPLOYEES, COUNCIL 31, et ai.

Respondents.

On Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

BRIEF OF THE JAMES MADISON

INSTITUTE AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

JOSEPH W. JACQUOT JOSHUA M. HAWKES

ANDREW E. UNDERKOFLER Counsel of Record

FOLEY & LARDNER LLP NICHOLAS J. P. MEROS

1 Independent Dr. FOLEY & LARDNER LLP

Suite 1300 106 E. College Ave.

Jacksonville, FL. 32202 Suite 900

(904) 359-2000 Tallahassee, FL 32301

(850) 222-6100

jhawkes@foley.com

Counsel for Amicus Curiae

December 6, 2017

TABLE OF CONTENTS

Page

py) PF fe iy, + yy! SEEDED DErEEEDE il

STATEMENT OF INTEREST .......................000seee00 2

SUMMARY OF ARGUMENT .......................ccceseeeees 2

(REO See Ne eet ee aT OnE 4

1. GOVERNMENT HAS NO

COMPELLING INTEREST IN AN

AGENCY FEE TO OVERRIDE THE

Ee 4

A. Abood Failed to Properly Apply the

ee First Amendment Scrutiny

to BUG FAI II, occcccecsccccsccccsccceseccssces 4

B. The Court Has Already Provided the

Basis for Overruling s eeiiinaainiseiintnsdeasies 13

Il. THE ARGUMENTS IN FAVOR OF THE

AGENCY FEE ARE INVALID. ........................ 16

A. Plenty of Would-Be “Free Riders” Do

Not Benefit From the Unions’

Collective Bargaining Efforts. ..................... 16

B. The Free- Rider Rationale is

Inherently Contradictory...........................+- 18

C. The Free-Rider Rationale Fails to

Account for the Realities of Public:

Sector Collective Bargaining. ...................... 25

D. While Unions Profess Concerns with

Free Riders, They Free Ride on

Taxpayers and Government Grace. ............ 32

EET deciintiicieniteniciacictdciniennlitaciactanviniecinetons 36

TABLE OF AUTHORITIES

Cases Page(s)

Abood vy. Detroit Bd. of Educ.,

nn. cessebseuaencbenboe passim

Abrams v. United States,

i OE . csaseusenoneneatoese 20

AFSCME, Council 31 v. Dept. of CMS,

2016 IL App (5th) 160510-U........ ccc ccccccecceeeeeee 31

Bd. of Airport Comm'rs of City of L.A. v. Jews for

Jesus, Inc.,

a csennluitnenanetinns 31

Chi. Teachers Union vy. Hudson,

LS 14, 30

Davenport v. Wash. Educ. Ass'n,

a 2 cdienisemenanonseunceusa 16

Ellis v. Ry. Clerks,

PRI CT III cccaninsiececsnnbionscesssseoseveeses 14, 21

Elrod vy. Burns,

gs csiunaaiteniodonnl 5

Harris v. Quinn,

re er I ac cccccccossocnsstnccsasncsornes passim

Hilton v. S.C. Pub. Rys. Comm'n,

I, I csaebeenseann 13

Jl. Case Co.v. N.LAB.,

EERE SE oc 16

Knox v. Serv. Emps. Int’ Union, Local,

1000, 567 U.S. 298 (2012)...........0cccccccccceeeeeees passim

Machinists v. Street,

I i cn cerevesensdeonesest 9, 14, 15, 20

Pickering v. Bd. of Educ.,

Ee a 8

Ry. Emps.’ Dept. v. Hanson,

351 U.S. 225 (19656)..............ccccceecceeees 8, 9, 14, 15, 20

Riley v. Nat'l Fed’n of the Blind,

ae tte 5

Steele v. Louisville & N.R. Co.,

EEE Ie 2a 19

United States v. Rumely,

0 ea ere 20

Statutes

RESINS aera a Roe es A a ARR | 6

II isc scr ncisnteassacinidicdeachindbloniiaialenaiacai nena 6

S| RETR eens A 6, 7

ERE Caren eT ae eNOS Skmae 2 7, 31

71 Pa. Cons. Stat. §575(h) (1988) .0000 0... cece 7

Alaska Stat. § 23.40.225 (2017) .0......00cccccccccccceceeeeeees 7

Cal. Gov. Code § 3584(a) (1999) 000.000... 7

Haw. Rev. Stat. §89-3.5 (1983)............ccccccccccccececeeeeeees 7

Mont. Code § 39-31-204(1) (2009) ..0..........ccccceeeeeee 7

Ohio Rev. Code § 4117.09 (C) .o......cccccccccccccccccenseeeeeeee 7

Or. Rev. Stat. § 243.666(1) (1983) ..........0.ccccccceeeees 7

Wash. Rev. Code. § 41.80.100(2) (2002) ...0.0.....000000000.. 7

Other Authorities

2016-2017 NEA Resolutions,

https:‘//goo.gUJvNKFM ............ccccccceceeeeeeeeeeeeeeeeeees 16

AAA, AAA Fact Sheet, https://goo.g/iKNwVQ......... 22

AARP, About AARP, https://goo.gl/ii8yXb................ 22

AARP Faces Competition From Conservative-

Leaning Groups, WALL ST. J. (Mar. 30, 2014),

OA ecstsncerssescecsessesnvseseceesstescsnvotees 19

Agreement Between the Bd. of Educ. & the Chi.

Teachers Union (Oct. 2016),

IV

https-//goo.gl /VVCSZB .............cccccccceeocceceeeeececeeeeeees 27

AM. NURSING Ass’N, Nurse Staffing (Dec. 2015),

https-//goo.gV/KKFQEN .....00.......ccccecccecccececeeeceeeeeees 13

BUREAU OF LABOR STATISTICS, Union Members Sum-

mary (Jan. 26, 2017), https://goo.gl/5j3cqP........... 22

David Bauerlein, Times-Union Investigation: Jack-

sonville Pension Crisis, Part 3, THE FLA. TIMES-

UNION, https://goo.gi/y 1j47Y 000.0 ec cceee coon. 24

J. JAMES MADISON INST. (Spring 2015),

https-//goo.gV/BxiXho 20.000... ccceccceeccceecceeeeeeeees 22, 23

Kate Taylor, Health Care Law Raises Pressure on

Public Unions, N.Y. TIMES (Aug. 4, 2013)

a ccusenoverenescevees 18

Ill. Exec. Order No. 8 (2003),

https-//goo.gV/wWDEZ38 ooo... cecccceccceecececeeeeeeeeee 24

Mailee Smith, Palatine-Area District 15's New 10-

Year Contract ‘Unprecedented’ (Apr. 25, 2016),

Ittpe-//goo.g<V/eGGGyhh .................00c.ecceceecesceeseeeceeeeee- 23

NAT'L EDUC. Ass’N, Pensions, https://goo.gl/jNr7.71. 16

Not if, but when: Living in a world without Fair

Share (July 2014), https://goo.gl/Brvggj............. 20

NRA, About the NRA, https://goo.gi/dwKkoG........... 22

Sean Higgins, ///inois politicians forced home care

workers into union that donates heavily to them,

WASH. EXAMINER (May 1, 2014),

Inttpe-//go0.gVaCGoT Nh ................0-ecceecceeceessoececceeee. 24

SEIU HEALTHCARE ILL., IND., MO., KAN., Home Care,

https‘//goo.gV/TBWBEM o.oo cccccccceeceecceeeeeeeceseee 22

Travis Keels, Florida’s Public Sector Labor Unions,

Trey Kovacs & Sal Nuzzo, Union Time on the Tax-

payer Dime (Aug. 31, 2017),

me 27

What Unions Do: How Labor Unions Affect Jobs and

the Economy (May 21, 2009),

https‘//goo.gl/qrASUH .............ccccccccecceeceeeceecceeeeeee. 22

STATEMENT OF INTEREST'

The James Madison Institute is one of the na-

tion’s oldest and largest nonprofit, nonpartisan

research and educational organizations. The Insti-

tute’s policy recommendations are rooted in the

principles found in the U.S. Constitution — such

timeless ideals as limited government, economic

freedom, federalism, and individual liberty coupled

with individual responsibility.

The Institute is a free-market policy organization

focused on state-based issues. It has a strong inter-

est in assisting the public and governments in ra-

tional economic decision-making.

SUMMARY OF ARGUMENT

In dismissing Mark Janus’ complaint, the Sev-

enth Circuit simply stated “it is Abood that stands in

the way.” Pet. App. 8a.

Just three years ago the Court pointed out that

Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977)

“failed to appreciate the difference between the core

union speech involuntarily subsidized by dissenting

public-sector employees and the core union speech

involuntarily funded by their counterparts in the

private sector.” Harris v. Quinn, 134 S. Ct. 2618,

2632 (2014). The Court clarified Abood’ flaw: “In

the public sector, core issues such as wages, pensions,

! The parties filed blanket consents and were timely notified of

our intent to file this brief. This brief was not written in whole

or in part by counsel for any party, and no one other than

amicus made a monetary contribution to its preparation. (Rule

37).

3

and benefits are important political issues, but that is

generally not so in the private sector.” /d.

Furthermore, “Adood failed to appreciate the con-

ceptual difficulty of distinguishing in public-sector

cases between union expenditures that are made for

collective-bargaining purposes and those that are

made to achieve political ends * * * [I]n the public

sector, both collective-bargaining and political advo-

cacy and lobbying are directed at the government.”

Harris, 134 §. Ct. at 2632-33.

This case presents the opportunity to address the

questions surrounding Abood’& continued validity.

Abood is inherently contradictory in applying consti-

tutional scrutiny to the political advocacy of public-

sector unions, but failing to analyze whether public-

sector collective bargaining itself also implicates

political and ideological speech. Had Abood appro-

priately analyzed the content of public-sector collec-

tive bargaining, it would have found it completely

subsumed by political and ideological issues.

Further, the argument in favor of the forced

agency fee — namely, the free-rider rationale born

from a concern for labor peace — woefully fails any

level of constitutional scrutiny other than rational

basis. The realities of public-sector unions shows

much abuse of the agency fee and the power of the

exclusive representative mantle itself. The only way

public-sector unions can constitutionally survive is

without the government forcing an agency fee from

those who do not wish to associate with the union.

4

ARGUMENT

I. GOVERNMENT HAS NO COMPELLING

INTEREST IN AN AGENCY FEE TO

OVERRIDE THE FIRST AMENDMENT.

A. Abood Failed to Properly Apply the Re-

quired First Amendment Scrutiny to Co-

erced Agency Fees.

Abood vy. Detroit Bd. of Educ., 431 U.S. 209 (1977)

has two discordant parts. On the one hand, Abood

appropriately drew constitutional limits on an agency

fee to support political advocacy. Yet, Abood fore-

went any constitutional scrutiny for an agency fee to

support collective bargaining in the public sector. In

reality, the two uses of the agency fee are both in

support of political and ideological speech in the

realm of public-sector collective bargaining.

Abood should have applied “exacting First

Amendment scrutiny” to collective bargaining uses of

an agency fee, as union negotiation with the govern-

ment necessarily impacts free-speech and association

rights of fee payers because of the political nature of

collective bargaining. Anox v. Serv. Emps. Int’

Union, Local 1000, 567 U.S. 298, 310 (2012) (“com-

pulsory subsidies for private speech are subject to

exacting First Amendment scrutiny”); Harris v.

Quinn, 134 S. Ct. 2618, 2639 (2014) (“an agency-fee

provision * * * cannot be tolerated unless it passes

‘exacting First Amendment scrutiny”) (quoting Anox,

567 U.S. at 310). Abood never explained why it did

not apply exacting scrutiny to forced association and

agency fee subsidies for the purposes of collective

bargaining.

Exacting scrutiny in Abood would have required

the following:

5

[lif conditioning the retention of public em-

ployment on the employee’s support of the in-

party is to survive constitutional challenge, it

must further some vital government end by a

means that is least restrictive of freedom of be-

lief and association in achieving that end.

Elrod v. Burns, 427 U.S. 347, 363 (1976) (applying

exacting scrutiny in case of non-civil-service employ-

ees who were discharged or threatened with dis-

charge for not affiliating with the Democratic Party);

see also Riley v. Nat’ Fed’n of the Blind, 487 U.S.

781, 798 (1988) (applying exacting scrutiny and

finding the State’s “interest is not as weighty as the

State asserts, and that the means chosen to accom:

plish it are unduly burdensome and not narrowly

tailored” for state law that forced fundraisers to

make certain disclosures to potential donors).

Abood did not apply exacting scrutiny, and Re-

spondents still eschew it, because of two fallacies

committed by Abood. These flaws undermine any

assertion of a government interest compelling enough

to infringe on public employees’ free speech and

association rights.

First, Abood assumed that the government acts

simply as an employer in mandating an agency fee

for collective bargaining — notably without putting

any weight on the differences between public and

private employment. 431 U.S. at 224-26; see also

AFSCME Br. in Opp. 18 (“Abood’s authorization of

fair-share agreements falls safely within the govern-

ment’s broader authority to regulate speech when it

acts as an employer.”). This assumption ignores the

central role of the government in authorizing and

executing an agency fee for collective bargaining.

6

Illinois’ role in this case is illustrative. The Illi-

nois’ Public Labor Relations Act not only establishes

the agency fee, but also defines specific matters the

fee supports:

e The Legislature authorizes an agency fee, and

then by agreement, a government agency re-

quires that fee from its employees as a condi-

tion of employment. 5 ILCS 315/6(e).2

e The statute mandates the government deduct

the agency fee from a non-member employee's

paycheck and pay it to the union. /d8

e The statute mandates continued payment of

the fee. 5 ILCS 315/6(0.4

e The statute obligates the government to bar-

gain over what the law itself declares to be

“policy matters.” 5 ILCS 315/4.5

* A collective bargaining agreement between an exclusive

representative, or union, and a government employer may

include “a provision requiring employees covered by the

agreement who are not members of the organization to pay their

proportionate share of the costs of the collective bargaining

process, contract administration and pursuing matters affecting

wages, hours and conditions of employment.”

8 “(T]he proportionate share payment in this Section shall be

deducted by the employer from the earnings of the nonmember

employees and paid to the employee organization.”

‘ Even when a collective bargaining agreement is terminated,

“the employer shall continue to honor and abide by any dues

deduction or fair share clause contained therein until a new

agreement is reached including dues deduction or a fair share

clause.”

® The government employer “shall be required to bargain

collectively with regard to policy matters directly affecting

wages, hours and terms and conditions of employment as well

as the impact thereon.”

e And the statute directs the government to col-

lectively bargain over specific public policy

matters of wages and benefits. 5 ILCS 315/7.®

These are not merely discretionary acts of indi-

vidual government agencies setting employment

terms. If there was any doubt of governmental action

triggering First Amendment rights, the Illinois

statute excepts religious objections. 5 ILCS 315/6(f).”

The religious exception acts as a concession by Illi-

nois® that it would otherwise prevent public employ-

ees’ free exercise of religion through the agency fee.

If the free exercise of religion clause of the First

Amendment is implicated by the government’s agen-

cy fee statute, the free ~ wech and association clauses

are as well.

In sum, the government action at issue is the law

itself, seizing an agency fee from public employees

and determining its use by the union. This is un-

doubtedly the act of a sovereign as the “union's

collection of fees from nonmembers is authorized by

an act of legislative grace.” Anox, 567 U.S. at 313

® The government must “negotiate in good faith with respect to

wages, hours, and other conditions of employment.”

’ “Agreements containing a fair share agreement must safe-

guard the right of nonassociation of employees based upon bona

fide religious tenets or teaching of a church or religious body of

which such employees are members.”

8 A religious exemption is quite common in states that force

non-members to pay agency fees to a union. See, eg, Alaska

Stat. § 23.40.225 (2017); Cal. Gov. Code § 3584(a) (1999); Haw.

Rev. Stat. §89-3.5 (1983); Mont. Code § 39-31-204(1) (2009);

Ohio Rev. Code § 4117.09 (C); Or. Rev. Stat. § 243.666(1) (1983);

71 Pa. Cons. Stat. §575(h) (1988); Wash. Rev. Code. §

41.80. 100(2) (2002).

8

(citation omitted). Moreover, despite the unions and

their allies consistently making the argument that

the government is merely acting as an employer to

uphold agency fees under Pickering v. Bd. of Educ.,

391 U.S. 563 (1968) (where the Court gives more

deference to the government as employer where it

does not involve a matter of public concern), the

Court has already rejected that argument. See

Harris, 134 S. Ct. at 2642—43 (“This argument flies in

the face of reality. * * * [I]t is impossible to argue

that the level of Medicaid funding (or, for that mat-

ter, state spending for employee benefits in general)

is not a matter of great public concern.”).

Abood’s second fallacy was allowing the govern-

ment to compel an agency fee when simply “germane”

to collective bargaining. 431 U.S. at 235-36; see also

AFSCME Br. in Opp. 19. (arguing that the govern-

ment may require non-union public employees to pay

a fee for activities “germane to collective bargaining

and thus chargeable consistent with the First

Amendment”). However, Abood applied a cursory

germaneness test with no further inquiry into wheth-

er the substance of collective bargaining — with the

government — is inherently political or ideological.

Abood skipped a thorough analysis of germane-

ness because it relied on Ry. Emps.’ Dept. v. Hanson,

351 U.S. 225 (1956). However, Hanson noted no

evidence of the fee being used for ideological purpos-

8, and the Court stated that if a fee had been for

activities not germane to collective bargaining, “a

different problem would be presented.” Abood, 431

U.S. at 219 (quoting Hanson, 351 U.S. at 235). “But

the [Hanson\| Court squarely held,” Abood concluded,

an agency fee supporting collective bargaining does

not infringe the First Amendment. Abood, 431 U.S.

9

at 219. Abood plainly neglected the First Amend-

ment implications of an agency fee that furthers

political or ideological goals when done in the public

sector.”

Hanson upheld a statute authorizing an agency

fee on a rational basis of labor peace, and subse-

quently the Court in Street found political campaign

activities funded by an agency fee “violated the Act

itself.” Abood, 431 U.S. at 220 (citing Machinists v.

S:reet, 367 U.S. 740, 768 (1961)). Hanson’, and

Streets, precedential value ends where there is no

government-compelled speech for constitutional

review — neither case elevates labor peace from a

sufficient rational basis to a compelling government

interest u~der exacting scrutiny. In fact, Hanson

conceded that labor peace did not support an agency

fee that “forces men into ideological and political

associations which violate their right to freedom of

conscience, freedom of association, and freedom of

thought.” Harris, 134 S. Ct. at 2629 (quoting Han-

son, 351 U.S. at 236).

There are three possible ways to think about a

public-sector unions’ two types of speech as shown in

the three figures below.

® Hanson at least cautioned that if an agency fee “is used as a

cover for forcing ideological conformity or other action in

contravention of the First Amendment, this judgment will not

prejudice the decision in that case.” Hanson, 351 U.S. at 238.

Collective

Political & Ideological

Bargaining Activities

Figure 1: Completely

Separable

Political & Ideological

Activities

Collective

Bargaining

Figure 2: Completely

Subsumed

Political & Ideological

Activities

Figure 3: Inseparable

ll

Abood assumed that the collective bargaining

speech of a public-sector union is completely separa-

ble from the political and ideological speech of a

union as shown in Figure 1. A40od is (eenly flawed

in simultaneously recognizing the ideological con-

cerns of public employees, yet stopping short of the

necessary constitutional inquiry of a compelled

agency fee itself.'!° Abood inexplicably fails to probe

the ideological content advocated by the union within

collective bargaining supported by an agency fee.

In reality, public-sector collective bargaining is

completely subsumed in the realm of political and

ideological speech, as shown in Figure 2. There is no

non-political collective bargaining speech because all

collective bargaining issues affect either the service

the public receives from public employees or the

amount of money the public spends on public employ-

ees.

The Court has already recognized that, to the ex-

tent collective bargaining affects government spend-

ing, it is political and ideological. Harris, 134 S. Ct.

at 2642-43. There is not much left for the union to

bargain for after items that affect the budget are

removed from the agenda. But even budget-neutral

items in public-sector collective bargaining are politi-

cal and ideological.

For example, it might be argued that negotiating

flexible hours for employees is budget neutral —

'0 “To compel employees financially to support their collective

bargaining representative has an impact upon their First

Amendment interests. An employee may very well have

ideological objections to a wide variety of activities undertaken

by the union in its role as exclusive representative.” Abood, 431

U.S. at 222.

12

same amount of hours per employee, just coming in

at different times. However, flexible hours affects the

service the government provides through its employ-

ees, which is political in nature. To illustrate the

point, the line at the local department of motor

vehicles during peak hours is not alleviated by an

employee coming in at 7:00 AM.

Public service is also implicated by unions bar-

gaining over disciplinary procedures. See, e.g., Pet.

App. 146—52 (setting forth AFSCME’s agreed to

disciplinary process, which only allows disciplinary

action to be imposed for “just cause”). But, union

input into employee discipline is a highly-charged

political issue, with some people blaming it for sad-

dling the public with underperforming public em-

ployees. See, e.g., David Alpert, Public unions need

to stop defending the bad apples (Dec. 3, 2010),

GREATER GREATER WASH., (“But at Metro, like in

many public agencies, even a small minority of poor

employees gives the entire agency a bad reputation,

and union rules make it remarkably difficult to fire

them.”).

Another service-related example is conforming

public work places to published standards, for exam-

ple, the staffing level of firefighters at a fire station.

Br. of the Int'l Ass’n of Fire Fighters as Amicus

Curiae in Supp. of Resp’ts at 11, Friedrichs v. Cal.

Teachers Ass'n., 578 U.S. __ (2016) (No. 14-915).

Assuming the union negotiates that more firefighters

should be staffed at a station than the city currently

provides, and the number of overall firefighters

remains the same to maintain the budget-neutral

assumption, then the number of fire stations or hours

of operation is necessarily decreased. The capabili-

ties of the fire department are obviously important to

13

the public at large. Cf AM. NURSING ASss’N, Nurse

Staffing (Dec. 2015), (reviewing federal and state

regulations related to minimum nursing ratios and

stating “[w]hen health care employers fail to recog:

nize the association between RN staffing and patient

outcomes, laws and regulations become necessary”).

Even if the Court ignores the service point, there

is inseparable overlap between collective bargaining

and political and ideological speech, as shown in

Figure 3. Non-ideological collective bargaining is

inseparable from the political and ideological because

a public-sector union must negotiate ideological

policies during collective bargaining. The First

Amendment concern is what the union actually

advocates, supported as it is by an agency fee coerced

by the hand of the government. Adbood is woefully

blind to the policy matters at stake in collective

bargaining that the Court has already recognized.

Abood’s own rule on union dues funding political

advocacy applies to agency fees supporting the politi-

cal and ideological speech inherent in public-sector

collective bargaining. Instead, Abood does not com-

plete the requisite analysis under exacting scrutiny,

and it must now be overruled.

B. The Court Has Already Provided the Basis

for Overruling Abood.

In this case, Petitioner pointed to the limited role

of stare decisis in the area of constitutional interpre-

tation (Pet. Br. 10), as opposed to statutory interpre-

tation where the force of stare decisis is stronger.

See, e.g., Hilton v. S.C. Pub. Rys. Comm'n, 502 U.S.

197, 205 (1991) (“a pure question of statutory con-

struction, where the doctrine of stare decisis is most

compelling”). Even if the Court were to consider the

14

Abood rule while fully deferential to stare decisis, the

compelling justification to overrule Abood lies in this

Court’s recent criticism of the case. Now that the

issue is squarely before the Court, Abood must fall.

In Anox, for example, while addressing the opt-

out requirement in Street, the Court stated that the

“acceptance of the opt-out approach appears to have

come about more as a historical accident than

through the careful application of First Amendment

principles.” Knox, 567 U.S. at 312. The Court noted

that it “did not pause to consider the broader consti-

tutional implications of an affirmative opt-out re-

quirement.” /d. at 313.

The Court indicated that its analysis in Abood

and Chi. Teachers Union v. Hudson, 475 U.S. 292

(1986), was lacking, because it had “assumed without

any focused analysis that the dicta from Street had

authorized the opt-out requirement as a constitution-

al matter.” Anox, 567 U.S. at 313. The Court also

remarked that “[a] union’s collection of fees from

nonmembers is authorized by an act of legislative

grace * * * one that we have termed ‘unusual’ and

‘extraordinary.” Knox, 567 U.S. at 313 (citation

omitted). Indeed the Court stated: “Our cases have

tolerated a substantial impingement on First

Amendment rights by allowing unions to impose an

opt-out requirement at all.” Anox, 567 U.S. at 317;

see also Ellis v. Ry. Clerks, 466 U.S. 435, 455 (1984).

Similarly in Harris, the Court reiterated that

“[Knox| pointed out that Abood is ‘something of an

anomaly.” Harris, 134 S. Ct. at 2627. The Court

stated that it had “dismissed the objecting employees’

First Amendment argument with a single sentence”

in Hanson, a “remarkable” explanation because “the

15

Court had never previously held that compulsory

membership in and the payment of dues to an inte-

grated bar was constitutional, and the constitutional-

ity of such a requirement was hardly a foregone

conclusion.” /d. at 2629. The Court referred to its

First Amendment analysis in Hanson as “thin.”

Harris, 134 §. Ct. at 2629.

The Court recognized that Street “presented con-

stitutional questions of the utmost gravity * * * but

the Court found it unnecessary to reach those ques-

tions.” Harris, 134 S. Ct. at 2630 (citation omitted).

Despite threadbare First Amendment analysis in

Hanson and Street, the Abvod, “Court treated the

First Amendment issue as largely settled by Hanson

and Street.” Jd. at 2631. The Court remarked in

Harris that “[the] Abood Court's analysis is question-

able on several grounds. Some of these were noted or

apparent at or before the time of the decision, but

several have become more evident and troubling in

the years since then.” 134 S. Ct. at 2632. The Court

found that “[tlhe Abood Court seriously erred in

treating Hanson and Street as having all but decided

the constitutionality of compulsory payments to a

public-sector union. * * * Surely a First Amendment

issue of this importance deserved better treatment.”

Harris, 134 §. Ct. at 2632.

After Knox and Harris, with detailed exposition

of Abood’s flaws, the agency fee arrangement for

public-sector employees is revealed to be constitu-

tionally unsound.

16

Ul. THE ARGUMENTS IN FAVOR OF THE

AGENCY FEE ARE INVALID.

A. Plenty of Would-Be “Free Riders” Do Not

Benefit From the Unions’ Collective Bar-

gaining Efforts.

The free-rider rationale was never supported in

the context of public-sector unions before the Court

relied on it in Abood, and evidence since 1977 has

shown that it is wholly unsupportable. Despite such

lack of support, unions are still able to wield what the

Court refers to as an “extraordinary power” by forc-

ing public employees to associate with unions and

pay dues. Harris, 134 S. Ct. at 2636; Davenport v.

Wash. Educ. Ass'n, 551 U.S. 177, 184 (2007); see also

Abood, 431 U.S. at 252-53 (Powell, J., concurring)

(“collective-bargaining agreement to which a public

agency is a party * * * has all of the attributes of

legislation”). The insufficient basis for the free-rider

rationale is especially problematic considering the

exacting scrutiny standard that coerced agency fees

must satisfy that Abood did not consider as discussed

above.

However, even apart from a heightened scrutiny,

the free-rider rationale still fails. Some “free riders”

are better off without the union. See, e.g., //. Case

Co. v. NLRB, 321 U.S. 332, 338 (1944) (“The prac:

tice and philosophy of collective bargaining looks

with suspicion on such individual advantages.”). For

example, most teachers’ unions advocate against

merit pay, preferring lock-step promotions. 2016-

2017 NEA Resolutions at 285-86,

https://goo.g/JvNKFM (advocating as a standard

contractual concept, “[slalary schedules that are

equitable * * * and that exclude any form of merit”).

17

However, top-performing teachers are obviously

better off without the “benefits” of collective bargain-

ing through pay that encourages teachers to perform

well and discourages low-performing teachers to stay

in the profession.

The facts of this case also bear out the truism

that some employees are better off without their

forced agent. Respondent AFSCME rejected a merit

pay offer from Governor Rauner, instead demanding

benefits with an estimated cost of $3 billion over four

years. Kim Geiger, Rauner scores big win over union

on contract talks, Cul. TRIB. (Nov. 16, 2016)

https://goo.gl/Pm2A4D. Governor Rauner drew the

line at no guaranteed salary increases, allowing for

bonuses linked to attendance, health care premiums

ranging from $188 to $427 a month, and no overtime

before an employee works 40 hours a week, however,

the union would not relent. /d. Undoubtedly some

employees would do better under a merit pay system,

especially assuming a fixed budget available for

state-employee pay that would allocate more money

to them.

Merit pay for public employees is an ideological

debate with public policy considerations. In the case

of teachers, some see merit pay as a way to improve

public education in general and the best way to

motivate teachers to provide a better product. In

Illinois, the potential increase in the state budget of

$3 billion while eschewing performance-enhancing

reforms would seem to matter to the electorate at

large. In both cases, employees on the other side of

the debate as their union are compelled at the threat

of losing their jobs to pay tribute to the union’s posi-

tion with monthly agency fees on core political

speech.

Nor is merit-pay the only issue where employees

can be better off without the union. Employees who

only serve a brief stint in public service, intending on

finishing before they vest in a pension, would prefer

higher pay or a portable 401(k) retirement plan

versus a defined benefit pension plan that unions

almost uniformly prefer. See, eg, NATL EDUC.

Ass’N, Pensions, https://goo.gl/jNrZ71. Healthier

employees, or those without families, are better off

with a high-deductible catastrophic cap health plan

and corresponding higher pay versus a “Cadillac”

health plan that unions almost uniformly prefer.'!! A

newer non-tenured teacher would prefer to have all

employees forego union-advocated pay raises that

end up costing teachers with less seniority like her a

job, even though she paid the agency fee for the time

she was a teacher. Abood did not consider the public

employees who do not wish to associate with the

union, and are better off without the union’s efforts,

before labeling them “free riders.”

B. The Free-Rider Rationale is Inherently

Contradictory.

The free-rider rationale contradicts itself for two

reasons. First, the labor peace rationale implicitly

acknowledges that employees’ interests vary from

their forced agent, thus, employees cannot be consid-

ered to free ride on the union’s efforts to advocate

positions they oppose. Second, the free-rider ra-

'! Kate Taylor, Health Care Law Raises Pressure on Public

Unions, N.Y. TIMES (Aug. 4, 2013) https‘//goo.gi/6hxJ1H (de-

tailing effect of Affordable Care Act (“ACA”) tax on high-cost

health benefits common for public employees and difficulties in

getting public-sector unions to accept curtailed health care

benefits). The implementation of the ACA tax has since been

delayed.

19

tionale presupposes failure of the union without

forced agency fees, amounting to government subsi-

dization of certain viewpoints — making forced

agency fees antithetical to the core of the First

Amendment.

1. Labor peace acknowledges differing employee

viewpoints. The free-rider rationale is a consequence

of the perceived need for the employer to negotiate

with an exclusive representative. The Court recog-

nized the labor peace benefit of the exclusive repre-

sentative as easing the negotiating effort of the

employer by avoiding competing demands from

employees. Abood, 431 U.S. at 220 (“avoids the

confusion that would result from attempting to

enforce two or more agreements specifying different

terms and conditions of employment”); see also Steele

v. Louisville & N.R. Co., 323 U.S. 192, 203 (1944)

(noting exclusive representative's bargained for

contract “may have unfavorable effects on some of the

members of the craft represented”). The free-rider

rationale comes into play because with only one

union for the employer to negotiate with, all employ-

ees receive the “benefit” of the union’s bargaining

effort.

However, relying on the labor peace rationale as

the basis for an exclusive representative acknowledg-

es that there are employees with views different from

their coerced union association — even on the issues

confined to collective bargaining. Forcing an employ-

ee to pay for a union that advocates positions he does

not support is not free riding, whether or not the

20

employee is better off with the union’s preferred

policy position. '!?

2. Agency fees interfere with the market place of

ideas. The free-rider rationale also contradicts the

marketplace of ideas because it forces people into a

group to support certain positions. See Abrams v.

United States, 250 U.S. 616, 630 (1919) (Holmes, J.,

dissenting) (“the best test of truth is the power of the

thought to get itself accepted in the competition of

the market”); United States v. Rumely, 345 U.S. 41,

56 (1953) (noting that “bidlding] for the minds of men

in the market place of ideas * * * is the tradition

behind the First Amendment”); Knox, 567 U.S. at 309

(“The First Amendment creates ‘an open market-

place’ in which differing ideas about political, eco-

nomic, and social issues can compete freely for public

acceptance without improper government interfer-

ence.”) (citation omitted). Agency fees distort the

political process because they use the power of gov-

ernment compulsion to override individual choices

related to speech and association.

Compulsory agency fees distort the marketplace

of ideas in two ways. First, compulsory agency fees

force an individual, who may be indifferent or may

'2 Indeed, Abood itself listed many different examples where an

employee can disagree with his employer on issues germane to

collective bargaining, but that still encompass public policy

preferences, such as whether striking would be allowed by the

contract, how union wage policy affects inflation, whether the

contract addresses racial discrimination, and how medical

benefits may affect issues such as abortion. Abood, 431 U.S. at

222-23. But then Abood approved coerced agency fees on the

“judgment clearly made in Hanson and Street,” without at all

considering that the government was now the employer coercing

these political positions. /d at 222; Harris, 134 S. Ct. at 2632.

21

vehemently object to the union’s message, to never-

theless support that message. “When a State estab-

lishes an ‘agency shop’ that exacts compulsory union

fees as a condition of public employment, ‘[t]he dis-

senting employee is forced to support financially an

organization with whose principles and demands he

may disagree.” Knox, 567 U.S. at 310—11 (quoting

Ellis, 466 U.S. at 455). Furthermore, “[blecause a

public-sector union takes many positions during

collective bargaining that have powerful political and

civic consequences, the compulsory fees constitute a

form of compelled speech and association that impos-

es a ‘significant impingement on First Amendment

rights.” Knox, 567 U.S. at 310-11 (citations omit-

ted).

Second, compulsory fees subsidize the unions’ ex-

istence — organizations whose sole purpose is advo-

cacy. If the free-rider rationale is to be believed,

absent coerced agency fees, unions would fail. Har-

ris, 134 S. Ct. at 2657 (Kagan, J., dissenting) (“the

majority can have no basis for thinking that absent a

fair-share clause, a union can attract sufficient dues

to adequately support its functions”). But if that is

true,'3 failure is exactly what is supposed to happen

'S The failure assumption is likely incorrect in any case. The

Court has recognized that those jurisdictions that do not allow

for agency fees still have unions. Harris, 134 S. Ct. at 2640

(exclusive bargaining agent and agency fee “are not inextricably

linked.”). Indeed, the losing union in Harris goes on without

agency fees compelled under color of law. When this Court

invalidated the coerced agency fees for the home healthcare

personal assistants in Illinois, the union claimed representation

of 25,000 personal assistants. Deana Rutherford, Our state-

ment in response to U.S. Supreme Court's ruling in Harris v.

Quinn (June 30, 2014), https‘//goo.gi/nTcqv8 (responding to the

Harris decision with SEIU President Mary Kay Henry stating

22

in a marketplace of ideas: bad ideas fall by the way-

side. There are a multitude of organizations that

thrive without relying on government action to coerce

membership fees. For example, AARP, a social

welfare organization with a membership of nearly 38

million;'* AAA, a federation of affiliated motor clubs

with over 56 million members and 40,000 full-time

employees: and the National Rifle Association

(“NRA”), with over five million members.'® As a point

of comparison, there were over seven million public-

sector union members in 2016,'’ five million of whom

are subject to coerced agency fees. Pet. Br. 16.

Moreover, these organizations lobby'® public poli-

cy issues important to them —as groups of people

are wont to do. For example, AAA “led the state-by-

“[nlo court case is going to stand in the way of home care

workers coming together to have a strong voice for good jobs and

quality home care”). Now over three years later, the union

claims membership of more than 50,000 home care workers.

SEIU HEALTHCARE ILL. IND., MO., KAN., Home Care,

https‘//goo.g/T5W8EM. Despite the necessity arguments in

favor of the agency fee, failure does not seem imminent.

\* AARP, About AARP, https://goo.gl/ii8yXb.

16 AAA, AAA Fact Sheet, https://goo.g/iKNwVQ.

16 NRA, About the NRA, https‘//goo.g/dwKkoG.

17 BUREAU OF LABOR STATISTICS, Union Members Summary

(Jan. 26, 2017), https://goo.gl/5j3cqP.

‘8 The Court has distinguished between union lobbying and

union collective bargaining. See, eg, Anox, 567 U.S. at 324

(Sotomayor, J., concurring). The two are really the same for a

public-sector union as the topic of discussion does not change

the fact that a paid representative is meeting with the govern:

ment to advocate certain positions, the very essence of lobbying.

However, this brief maintains the Court's distinction for pur

poses of this discussion.

23

state push to expand [driver’s license policy] nation-

wide.” In the case of AARP, when it supported the

ACA, it lost about 300,000 members, while competing

organizations saw their membership increase.'’

Nobody would seriously claim that free-riders are

threatening the very existence of these organizations,

much less that the government would be empowered

to force dues payments to save these organizations.

An individual can enjoy the right to bear arms and

not be a member of the NRA; the NRA goes on as an

effective advocate for all who believe in a strong

Second Amendment. On the other hand, when it

ceases to effectively advocate issues its members care

about, membership declines. In the meantime, every

person in the sphere of influence of these organiza-

tion “benefits” from the particular policy preferences

advocated through the collective strength of its

members that voluntarily choose to associate for

entirely selfish reasons, such as senior discounts,

road-side assistance, or affinity with like-minded

individuals.

The same is true in the employee-employer con-

text. This Court recognized the persuasive force of

other employee advocacy organizations that do not

rely on coerced agency fees. Anox, 567 U.S. at 311

(noting no compelled membership in community

associations, parent-teacher associations, faculty

associations, or medical associations); Harris, 134 S.

Ct. at 2641 (noting that a “host of organizations

advocate on behalf of the interests of persons falling

within an occupational group” with voluntary contri-

‘© Laura Johannes, AARP Faces Competition From

Conservative-Leaning Groups, WALL ST. J. (Mar. 30, 2014),

https://goo.gl//AcoS8p.

24

butions). The government can no more mandate that

democrats financially support the Democratic Na-

tional Committee than it can force its employees to

support unions for the stated purpose of preventing

“free riders.”

If forced to compete in a marketplace of ideas,

unions would presumably find ways to benefit their

members apart from what they collectively bargain

for.2° If the only benefit of a union is the collective

bargaining, but too few employees are willing to pay

for that benefit, especially year after year, then

association with the union and its positions on issues

is not meritorious enough in the marketplace of

ideas. When labor conditions reach the point where

people are willing to pay for a representative to

collectively bargain for them, the problem of funding

the efforts of the union takes care of itself in the

marketplace.

Indeed, the union in Friedrichs, anticipating an

eventual loss in that case, published a presentation

where they researched “prospective members to learn

what might incent them to want to join the [union]

voluntarily” and “[hlow to package what [union]

membership offers in a way that appeals to them.”

* Unions have raised such an argument as part of a post-hoc

justification for the rule in Adood, pointing to the unions’ efforts

to provide training or purchase equipment. See, e.g. Br. of the

N.Y.C. Mun. Labor Comm. as Amicus Curiae in Supp. of Resp 'ts

at 33-36, Friedrichs, (No. 14-915) (discussing training efforts).

However, those are not objectionable uses of coerced fees from

employees, nor is it why agency fees exist. Agency fees are

coerced payments to have a union be your agent in collective

bargaining. If the government, or any employer for that matter,

wants to force employees to buy their own equipment or pay for

their own training, that is not a free-speech concern.

25

CAL. TEACHERS ASS’N, Not if but when: Living in a

world without Fair Share (July 2014),

https://goo.g/Brvggj. Such statements amount to a

remarkable concession from the union that it did not

have to worry about member satisfaction under the

Abood regime because dues were always paid on

time, thanks to the government’s forceful help. The

First Amendment prevents the government from

distorting the associational rights of public employees

by forcing them into a union totally deaf to their

wants and needs.

One may assume, based on the gradual but

steady decline in union membership over the years,

that most employees feel that a union does not pro-

vide enough service for the cost of the dues. See

generally BUREAU OF LABOR STATISTICS, supra, note

16 (showing decline in the union membership rate

from 20.1 percent in 1983 to 10.7 percent in 2016).

The whole point of the First Amendment is to allow

meritorious ideas and association with those ideas to

rise and fall without the government placing its

thumb on the scale in favor of one idea or another.

C. The Free-Rider Rationale Fails to Account

for the Realities of Public-Sector Collective

The realities of public-sector collective bargaining

reflect »-veral troubling practices that would under-

mine the free-rider rationale even if it was meritori-

ous. These practices include the following: (1) no

input into union policies by non-members forced to

pay the agency fee and no practical input even from

lower-level members; (2) no market restraints on

what unions obtain through public-sector collective

bargaining combined with a strong voice in choosing

26

their employer negotiating partner; (3) no real checks

on the chargeability determinations that unions

perform; (4) public-sector collective bargaining locks

out other advocacy groups, like the James Madison

Institute, who would otherwise advocate positions

related to public employment; and (5) nothing really

stops public-sector collective bargaining from exploit-

ing the associational power of unions and their

political allies from placing shamelessly political

provisions in the collective bargaining agreement.

1. No input. Not only are significant public poli-

cy positions inherent in public-sector collective bar-

gaining, and not only do the unions contradict their

own fee-payers’ wishes as shown above, every union

collective bargaining position is taken by the union

without any input from fee-paying non-members.

Travis Keels, Florida’s Public Sector Labor Unions, J.

JAMES MADISON INST. (Spring 2015), at 27, available

at https://goo.gl/8xiXho (“[MJany public employees are

faced with an unavoidable quandary: join a union

and pay dues, or choose not to join the union and

have no voice in the union that will still be represent-

ing yuu regardless of your individual opinion.”).

2. Noconstraints. Private-sector unions are con-

strained by economic realities. They cannot demand

more than the company can afford, or the company

goes bankrupt and the union members lose their jobs.

See generally James Sherk, What Unions Do: How

Labor Unions Affect Jobs and the Economy (May 21,

2009), https://goo.gl/qrASUH. However, in public:

sector unions, if the pay and benefits agreed to in the

collective bargaining contract causes the state’s

budget to exceed revenues, the state has to simply

borrow or tax to make up the difference. The Court

recognized this practical problem in Abood itself,

27

noting that a public employer “lacks an important

discipline against agreeing to increases in labor costs

that in a market system would require price increas-

es,” and a “public-sector union is correspondingly less

concerned that high prices due to costly wage de-

mands will decrease output and hence employment.”

Abood, 431 U.S. at 228; see also Harris, 134 S. Ct. at

2631 (commenting on this contradiction from Abood).

Experience in particularly unrestrained public-

sector unions since Abood has borne out the harsh

realities of the lack of competitive-market checks on

collective bargaining. Cert. Br. of Amici Curiae State

of Mich. & Eighteen Other States in Supp. of Pet’r at

10-18 (detailing the role of public-sector collective

bargaining in the bankruptcies of Detroit, Stockton,

and San Bernardino); see also Harris, 134 S. Ct. at

2632 n.7 (noting Illinois’ pension liability of $100

billion with an estimated 50 percent unfunded).

Also, in private-sector bargaining, the union is

constrained by a truly arm’s length negotiating

partner. In public-sector collective bargaining, the

union can choose its counterparty. Keels, supra at 29

(“However, because of the union's political power —

not only derived from campaign contributions but

also from ‘boots on the ground’ activities such as rides

to the polls — elected officials, especially at the local

level, owe a debt of gratitude to the unions that got

them elected.”). Unions spend considerable money to

have their preferred politician elected.

OPENSECRETS.ORG, Public Sector Unions: Long-Term

Contribution Trends, https://goo.g\/rC6vDH (showing

public-sector union contributions back to 1990 that

typically favor Democrats 90% of the time); see also

Knox, 567 U.S. at 304 (noting over $10 million raised

by mostly public-sector unions to defeat ballot initia-

28

tive). While not always successful, such arrange-

ments seriously undermine the collective bargaining

process funded by government-mandated agency fees.

One example is the former head of the teachers’

union being hand-picked by the superintendent to

become head of the school district’s human resources

department. Mailee Smith, Palatine-Area District

15's New 10-Year Contract ‘Unprecedented’ (Apr. 25,

2016), https://goo.gl/sG5Syh. The former union boss

negotiated an unprecedented 10-year contract with

the union allowing annual salary increases for the

teachers. /d. It is difficult to imagine a former union

boss becoming the lead negotiator for a privately-held

company or a private company agreeing to 10

straight years of automatic pay increases, but even if

it did happen, it is clear that negotiation would not be

in the best interest of the employer. In the case of

the public employer, union-picked negotiators for the

employer are not in the best interest of the taxpayer,

who pays for everything the employer agrees to and

might want to interject at some point.

In another example before the Cvurt in a recent

case, Governor Rod Blagojevich circumvented the

restriction against personal assistants unionizing by

issuing an executive order shortly after taking office.

Harris, 134 §. Ct. at 2626. The executive order noted

it was “essential for the State to receive feedback

from personal assistants.” Ill. Exec. Order No. 8

(2003), available at https://goo.gl/wDEz38. Of course,

Governor Blagojevich had received substantial sup-

port from Service Employees International Union

(“SEIU”), the respondent union in Harris, that was

the ultimate beneficiary of Governor Blagojevich’s

order. Sean Higgins, ///inois politicians forced home

care workers into union that donates heavily to them,

29

WASH. EXAMINER (May 1, 2014),

https://goo.g/aCGo7h (noting $800,000 in donations

from SEIU to candidate Blagojevich).

After Governor Blagojevich was arrested on cor-

ruption charges, his successor in office, who received

over $5 million in support from the SEIU, picked up

where Governor Blagojevich left off and issued an-

other executive order allowing Medicaid-funded home

caretakers to unionize. /d. Had the effort been

successful, it would have resulted in an estimated $2

million annual agency-fee boon to the SEIU, but

AFSCME challenged SEIU’s certification and the

subsequent mail-in election resulted in only 40%

support for unionization. /d.

Even without agency fees, Florida has seen the

unique problems that can be created with the inher-

ent conflict of interest in public-sector unions. Jack-

sonville set up a Police and Fire Pension Fund and a

former firefighter became the administrator. David

Bauerlein, 7imes-Union Investigation: Jacksonville

Pension Crisis, Part 3, THE FLA. TIMES-UNION,

https://goo.gl/y1j4iY. Because the city wanted to ease

negotiations, the head of the Police and Fire Pension

Fund became the negotiator with the city for the

police union, the fire union, and the pension fund,

resulting in a 30-year agreement with the city that

created annual three percent cost-of-living adjust-

ments in public pensions. /d. This huge expansion in

pensions moved the city from a pension fund that was

86% funded to one that was 43% funded. /d.

3. No checks. Unions ultimately determine

which of their expenses are chargeable. The Court

has already noted the numerous problems with this

arrangement, such as the lack of a true audit on what

30

is chargeable and the fact that employees face an

uphill battle for challenging whether the union's

characterizations were proper. Harris, 134 S. Ct. at

2633-34. Thus, in Hudson, the union requested a

facially implausible 95% of their expenses as charge-

able to those that decided to opt out of membership.

Hudson, 475 U.S. at 295 (“Union determined that the

‘proportionate share’ assessed on nonmembers was

95% of union dues”). Also, in Knox, the Court noted

that “the SEIU’s understanding of the breadth of

chargeable expenses is so expansive” that it covers

“lobbying the electorate” and the Court did not place

much reliance on the union’s attempted post-hoc

justification of the special assessment by claiming

more expenses were actually chargeable. Anox, 567

U.S. at 319-20.

4. No others. There is no opportunity for an ob-

jecting nonmember who is coerced into paying her

“fair share” to bargain for her own benefits or input

into government employment policy when there is a

union in place. Once the government agrees to the

collective bargaining contract that it forced its em-

ployees to support, all employees are bound by it

without any chance for input from the non-member to

counter the position of their forced agent (i.e., non-

members have no voice in the union they paid for and

no voice with their employer who forced them to pay

the union). In this way, forcing an employee to

support collective bargaining is actually more detri-

mental to free speech than forcing them to support

overt political activity, because at least with the

latter, the employee has the opportunity to counter

the political speech.

Not only are non-member employees locked out of

the negotiation roo.n where public employment

31

policies are set, all other advocacy groups are as well.

Collective bargaining keeps important public policy

issues corfined to negotiations between union repre-

sentatives and public employers that should be

subject to open debate and deliberation.

For example, the Illinois’ Public Labor Relations

Act elevates a collective bargaining agreement to

trump the State’s public policies to the contrary. See

5 ILCS 315/7. Indeed, in this case, the union sued

the Illinois Governor to halt his executive authority

affecting the salaries of public employees. APSCME,

Council 31 v. Dept. of CMS, 2016 IL App (5th)

160510-U at 3 (“[unions] alleged that under their

collective bargaining agreements and extension of

those agreements, the State is required to pay”

despite a lack of budgetary appropriations). It is

hard to imagine the State has a compelling interest

to foreclose its own authority and policy-making in

back room deals with a few union bosses, yet collec:

tive bargaining agreements are consistently used to

do just that. See Bd. of Airport Comm'rs of City of

L.A. v. Jews for Jesus, Inc., 482 U.S. 569, 575 (1987)

(holding a ban on all First Amendment speech invalid

“because no conceivable governmental interest would

justify such an absolute prohibition of speech”).

Collective bargaining agreements should not give

unions such a hard lock on ideological issues, because

this distorts the political process in a way that it

antagonistic to the foundations of the First Amend-

ment.

5. No stopping. Beyond the measures that one

would think are typical in a collective bargaining

contract, public-sector unions cannot help but push

their political preferences into the collective bargain-

ing contracts they negotiate. For example, the cur-

32

rent Chicago Teachers Union contract contains

provisions for a “net zero increase in the number of

board authorized charter schools over the term of this

agreement,” “The BOARD shall not close any schools

for under-enrollment,” and “The Board and Union

shall collaborate to support mutually agreeable

legislation that calls for a sustainable state tax that

is levied on a progressive basis.” Agreement Between

the Bd. of Educ. & the Chi. Teachers Union (Oct.

2016), https://goo.gl /vVcSzB. Such provisions in a

collective bargaining contract obviously go beyond

“public employees’ wages, benefits, and such — that

is, the prosaic stuff of collective bargaining.” Harris,

134 S. Ct. at 2655 (Kagan, J. dissenting).

For all of the above reasons, public-sector collec:

tive bargaining is faced with real challenges to fair-

ness to both the taxpayer and the non-member that

the rule in Abood does not address. Thus, there is no

government interest strong enough for the First

Amendment to tolerate forced agency fees.

D. While Unions Profess Concerns with Free

Riders, They Free Ride on Taxpayers and

Government Grace.

Not only are non-members forced to subsidize un-

ion activities, unions collect off the taxpayers and

benefit financially from favorable government policy.

Unions negotiate paid leave for members who are

supposed to be working for the public to instead work

on behalf of the union. Thus, the non-member public

employee gets less time off from work than his union-

ized colleague so that the union member can go assist

the union further policies the non-member does not

support, but still pays for, in states like Illinois. Of

course, this arrangement is all negotiated with the

33

help of the non-members’ chargeable union dues, or

“fair share fee” as the unions insist on calling it.

The James Madison Institute has recently stud-

ied taxpayer subsidization of union work in Florida,

which unions refer to as “release time.” Trey Kovacs

& Sal Nuzzo, Union Time on the Taxpayer Dime

(Aug. 31, 2017), https://goo.gl/ykjW33. Release time

is a substantial windfall for public-sector unions,

with approximately $3 million a year the taxpayer

paid for in just Miami-Dade County.?! Even with

such large amounts at stake, the studied Florida

public-sector unions provide no accountability for

what the release time is used for. /d. at 4—5. Moreo-

ver, not all of the activities authorized for release

time would include non-members. /d. (citing author-

ized uses of release time as meetings, conventions,

and contract negotiations).

Petitioner also noted several other freebies for

public-sector unions. Public-sector unions are given

“union rights” which eases their burden to recruit

and retain members. Pet. Br. 40-42; see also Pet.

App. 141—43 (setting forth AFSCME’s union rights in

this case including use of State premises for union

meetings). The government often collects union dues

for the union — a substantial burden in most unions’

accounts receivable departments alleviated by the

government. Pet. Br. 42. Finally, exclusive repre-

sentation itself boosts membership even if agency

fees are not allowed in the jurisdiction. Pet. Br. 40—

41.

2! Petitioner also noted the substantial amount of release time

used by federal government public employees who are union

members, amounting to over $160 million in 2014. Pet. Br. 40.

34

These subsidies of release time, employer re-

sources, and collection duties also improperly put the

government's thumb on the scale in favor of the

unions’ political and ideological speech. Agency fees

would stack on top of all of these other benefits by

having the government force non-consenting employ-

ees to pay for the unions’ operations — a direct and

enormous subsidy. A simplified dues calculation

shows the benefit unions receive through agency fees.

Assume a 25,000 member union representing

50,000 employees with a $15 million annual budget,

$5 million for overt political activity and $10 million

for collective bargaining. If the union were a mem-

bers-only union, the 25,000 members would have to

pay $600 each for the union to achieve its goals for

the year. However, if the union is able to force non-

member employees to subsidize its operations, then

the members only have to pay $400 per year with the

non-members contributing $200 each.

What this example shows is that the dollars from

the union’s perspective are fungible as far as the

union achieving its objectives, but the union is much

better off if it can split the cost among more dues

payers. Now if the union wants to increase its politi-

cal budget — say for a political fight back fund as in

Anox — it can increase membership fees to $600 and

amplify by 100% the voice of the members and they

are no worse off thanks to the government's forcing

the non-members to pay their “fair share.” Viewed

another way, the members are achieving their politi-

cal preferences at a savings of $200 while the non-

members have to contribute $200 to an organization

they could fundamentally disagree with at risk of

losing their job. The union can also offer full-fledged

membership to a non-member for only $200 differen-

35

tial, whereas it would have cost $600 to become a

member in a members-only union (ignoring the

incremental calculation of an additional member),

inflating the union’s membership rolls and increasing

its clout and influence.

This example leads to the inescapable conclusion

that non-members are subsidizing the political pref-

erences of members, even if collective bargaining is

viewed as wholly separable from political activity, as

Abood mistakenly assumed. Someone who wishes to

join a union likely has one or more of three goals: (1)

help the collective bargaining effort, (2) associate

with like-minded individuals, or (3) further the

political agenda of the union. The non-member has

none of these goals, but contributes to the member's

enjoyment of all of them. The First Amendment does

not tolerate the government compelling individuals to

speak in support of a union’s political speech.

36

CONCLUSION

The Court should overrule Abood v. Detroit Bd. of

Educ., 431 U.S. 209 (1977), invalidate public-sector

agency fees, and reverse and remand the judgment of

the Court of Appeals.

JOSEPH W. JACQUOT

ANDREW E. UNDERKOFLER

FOLEY & LARDNER LLP

1 Independent Dr., Suite

1300

Jacksonville, FL 32202

Respectfully submitted,

JOSHUA M. HAWKES

Counsel of Record

NICHOLAS JOHN PETER

MEROS

FOLEY & LARDNER LLP

106 E. College Ave., Suite

(904) 359-2000 900

Tallahassee, FL 32301

(850) 222-6100

jhawkes@foley.com

Counsel for Amicus Curiae

December 6, 2017