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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0755%3A61. Public record. Not legal advice.