Last week, First Amendment scholars Professors Charles Fried and Robert Post filed this amicus brief in Janus in support of neither party.

On the one hand, Fried and Post worry that First Amendment “doctrines would be substantially undermined were this Court to accede to petitioner’s request categorically to hold public-sector agency fees unconstitutional under the First Amendment.”  On the other, they’re concerned that “respondents’ defense of the status quo fails to address the constitutional ambiguities and administrative difficulties identified . . . in Harris v. Quinn.”  Instead, they urge the Court to adopt the “narrower and more doctrinally consistent test for chargeability: the statutory-duties test proposed” in an opinion by Justice Scalia, and joined by Justices Kennedy, O’Connor, and Souter, in Lehnert v. Farris Faculty Ass’n, 500 U.S. 507 (1991).

Under the statutory duties test, as Fried and Post explain it, “chargeability of agency fees [in the public sector] should turn only upon the statutory duties the government has chosen to oppose on the union,” not on germaneness, the government’s justification, and the speech burden, as the Lehnert majority held.  Adopting the statutory duties test would significantly narrow what public sector unions can charge (lobbying and public relations expenses would not be chargeable, for example), as Fried and Post acknowledge, but would also be “clear and administrable” and the best fit with existing First Amendment jurisprudence.

Fried and Post first emphasize that the petitioner’s argument erases, and with potentially devastating consequences for public employers, the longstanding distinction between the government as employer and the government as sovereign.  As the amicus puts it:

“The essential insight of the Garcetti line of cases is that if public employees are accorded categorical First Amendment rights, public employers will be denied the broad discretion they need to manage their workplaces. . . .  It is inconsistent with Garcetti‘s carefully drawn distinction between speaking as an employee and speaking as a citizen to hold that the compulsory payment of agency fees is categorically protected under the First Amendment.  Any such holding would therefore threaten to transform every workplace dispute into a constitutional controversy.”

The statutory duties test rests on the idea that the speech that public sector unions do to fulfill their duties as bargaining representatives is for employees as employees.  That “speech ‘owes its existence’ to the State’s chosen system of labor relations and does not implicate ‘any liberties the employee might have enjoyed as a private citizen.'”

“[A] categorical prohibition on agency fees” would also conflict with First Amendment precedent on mandatory fees, much of which stems from Abood.  What these compulsory fee cases have in common is a free rider problem that the government feels must be overcome by a mandatory fee.  Quoting extensively from Justice Scalia’s opinions in past agency fee cases, Fried and Post argue that the statutory duties test fits well with the compulsory fee jurisprudence.

Finally, Fried and Post turn to two of the Abood “anomal[ies]” that Justice Alito identified in Harris and to a specific defense of the statutory duties test.  The “conceptual difficulty” of separating collective bargaining from political expenses and the “practical administrative problems” with separating what’s chargeable from what’s nonchargeable disappear when statutory duties are the touchstone.  Instead of asking whether the activity “‘help[s] or hinder[s] achievement of the union’s bargaining objectives,” chargeable activities would be “meaningfully limit[ed]” to activities undertaken as part of the union’s representational duty, eliminating fact-intensive analysis in most cases.