In the run-up to oral argument in Friedrichs v. California Teachers Association, OnLabor will be reviewing some of the significant amicus briefs that have been filed in the case.
Although federal employees are not directly implicated by the questions raised by Friedrichs, the U.S. Solicitor General has nonetheless filed an amicus brief asking the Supreme Court to preserve public-sector agency-fee arrangements in the states — arrangements which, as the Solicitor General observes, are derived from two federal statutes (the NLRA and Railway Labor Act).
The Solicitor General begins by assailing petitioners’ contention that “conditions of public employment that advance a public agency’s interest as an employer are subject to ‘exacting’ scrutiny under the First Amendment”:
This Court has never so held. To the contrary, in an array of contexts, including the political-affiliation cases on which petitioners rely, this Court has afforded public employers broad leeway to establish “reasonable” or “appropriate” conditions that advance the government’s interest as an employer, while remaining vigilant to ensure that the government does not leverage the employment relationship to stifle employees’ broader expressive activities as citizens. Petitioners’ attempt to demolish this Court’s settled framework for analyzing conditions of public employment would astonish the Founding generation and would stamp out the State-by-State variation in public-employment structures that has been the hallmark of this Court’s First Amendment jurisprudence for decades.
The Solicitor General then proceeds to argue that the Court’s decision in Abood v. Detroit Board of Education offered a reasonable solution to the problem of union members — who are themselves exercising “their own associational choice” — being “statutorily obligated to subsidize the free riders for the union’s work on their behalf”:
Abood correctly held that public employers may reasonably conclude that, by eliminating the moral hazard inherent in exclusive representation, agency-shop agreements significantly promote their vital interest in productive collective-bargaining relationships, ameliorate the workplace resentments that could arise if union members are required to shoulder the costs of attaining benefits for other employees, and foster a productive and effective public workforce.
Further, the Solicitor General suggests that petitioners’ First Amendment claims are overblown:
Abood also correctly recognized that the burden on the expressive activities of public employees who truly object to the union’s bargaining positions — as opposed to employees who simply want to free ride — is not so substantial as to render the condition of employment unreasonable or inappropriate. No public employee is prohibited from speaking out against the union and its positions in the workplace or in the public arena. And Abood ensures that mandatory fees can never support political campaigns, legislative lobbying outside of the ratification or funding of a collective-bargaining agreement, or other classically ideological activities — i.e., those activities that have no connection to the government’s concrete interest as an employer.
The Solicitor General then urges the Court to adhere to the principles of stare decisis, especially in light of states and cities’ longstanding reliance on Abood:
Petitioners have identified no special justification to discard a precedent that has governed public-sector labor relations for nearly four decades, has been repeatedly applied by this Court, and has helped form the foundation for other First Amendment doctrines. Overruling the Abood line of cases would disrupt the many state and local government agencies that have structured their labor relations in reliance on this Court’s constitutional pronouncements.
Finally, as to the opt-out question, the Solicitor General observes that “it is often true that an individual must object to invoke a constitutional right.” Accordingly, “[a]n employee who is unwilling to exert even the minimal effort necessary to check a box and mail in a form suffers no cognizable First Amendment harm.”
The Solicitor General has also asked to participate in oral argument in support of respondents.