Earlier this week, the petitioner in Janus v. AFSCME filed this opening brief, which asks the Court to overrule Abood and to declare public sector agency fee agreements unconstitutional. The thrust of the argument is that “Abood is offensive to the First Amendment” because “[i]t permits the government to compel employees to subsidize an advocacy group’s political activity.” Here’s a more detailed summary.
First, Janus argues that Abood should be overruled as wrongly decided and unworkable. The brief leans heavily on Justice Alito’s majority opinion in Harris, which questioned, among other things, Abood‘s “fail[ure] to appreciate the difference between private and public sector bargaining.” Unlike bargaining with a private employer, the brief maintains, bargaining with the government is unavoidably political — it is “indistinguishable from lobbying.” That public sector unions bargain on “matters of an inherently public and political nature” is “constitutionally significant,” petitioner says, because compelled political associations and speech must survive “exacting” or “strict scrutiny.” Harris and Knox, more recent agency fee cases, applied heightened scrutiny, but Abood applied something less.
These legal-error arguments for overruling Abood are accompanied by an argument that the Abood regime has proved unworkable in practice — it’s too difficult to separate political expenses from expenses related to bargaining and contract administration.
The second half of petitioner’s brief argues that agency fee agreements are unconstitutional because they are not “necessary to achieve a compelling state interest.” Primarily, petitioner attacks the idea that agency fee agreements are needed to solve a free-rider problem. As petitioner sees it, “[e]xclusive representation functions without” agency fee agreements because “the valuable powers, benefits, and membership recruitment advantages that come with exclusive representative status are more than sufficient to induce unions to seek and retain that status.”
Repeatedly, the brief emphasizes that “[u]nions have wide latitude to” take actions that “favor some employees and disadvantage others.” The brief does acknowledge unions’ duty of fair representation. But petitioner maintains that this burden to represent nonmembers is “minor,” stating, for example, “There is no reason why the expense of negotiating a contract for all employees should exceed the cost of negotiating a contract just for union members.” Petitioner also mounts an argument that unions would choose to represent nonmembers in contracts and in grievance proceedings even without the statutory duties.
The brief begins to rebut one of AFSCME’s anticipated arguments: that Abood fits with the case law giving the government greater flexibility to restrict speech when acting as an employer. Harris already rejected this argument, Janus notes, because cases like Pickering v. Board of Education are inapposite. The government has no interest in agency fee agreements strong enough to justify restricting nonmembers’ First Amendment rights. Further, in those cases, the government’s interest is in “preventing employee expressive activities from interfering with workplace operations,” but agency fee agreements do the opposite, the brief claims. Analogizing from the Hatch Act, which restricts federal employees’ political activities to insulate that workforce from political corruption and partisan capture, the brief argues that “forcing” or “requir[ing] employees to subsidize a political organization” like a union thwarts rather than advances the government’s interest in a high-performing workforce.
In conclusion, petitioner asks the Court not only to overrule Abood but to make two things “clear” in its holding: (1) “that public employees cannot be forced to pay any union fee whatsoever” and (2) quoting Knox, that “unions ‘may not exact any funds from nonmembers without their affirmative consent.'”
