Brief of Amicus Curiae in Janus v American Federation of State, County, and Municipal Employees
The injury identified by the plaintiffs in Abood v. Detroit Board of Education was that “a substantial part” of the agency fees they were required to pay a labor union would be used to fund union “activities and programs which are economic, political, professional, scientific and religious in nature of which Plaintiffs do not approve, and in which they will have no voice.” 431 U.S. 209, 213 (1977) (quoting complaint).
They, and this Court, didn’t know the half of it. Since Abood upheld agency fee arrangements, public-sector unions have demonstrated unbridled creativity in channeling the fees paid by non-members to fund a range of ideological activities as wide as any political party’s. Notwithstanding the requirement that activities chargeable to non-members must be “‘germane’ to collective-bargaining activity,” Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 519 (1991), as a practical matter Abood permits government to compel its employees to associate with and subsidize political and ideological advocacy on a host of topics, many of them quite surprising.
The labor union at issue in this case, an affiliate of the American Federation of State, County and Municipal Employees (“AFSCME”), has in the past year used agency fees to pay for advocacy on such issues as: right-to-work statutes, infrastructure spending, government privatization and contracting, the minimum wage, voter-identification laws, tax policy, immigration reform and enforcement, gun control, D.C. statehood, marijuana legalization, “racial justice,” and Supreme Court nominations, among many others. It has spent agency fees to conduct an “AFSCME FOR HILLARY” rally at its annual convention, to instruct members on political organizing and voter registration, and to organize and carry out a “direct action” against a hotel affiliated with then-candidate Donald Trump. It has even, as the Abood plaintiffs suspected would occur, spent agency fees to conduct religious activities.
The use of agency fees to fund overtly political and ideological activities is not unique to AFSCME. The American Federation of Teachers, National Education Association, and Service Employees International Union, among other public-sector unions and their state affiliates, similarly use agency fees to fund advocacy on hot-button issues, including trade deals, public funding for Planned Parenthood, LGBTQ rights, the “Resistance” to Trump Administration policies, and campaign-finance reform. And some public-sector unions require non-members, through their agency fees, to subsidize union organizing campaigns.
The reality is that the public-sector labor unions are inherently and pervasively political entities. They make up four of the top six largest donors to federal candidates, political parties, and political action committees. They endorse candidates in nearly all federal and state elections and organize massive get-out-the-vote efforts in support of those candidates. They take positions on seemingly every political issue under the sun. They are as deeply engaged in electoral politics as any political party, and as active in policy debates as any pressure group. No less than compelling support of the Democratic or Republican Party, forcing non-members to subsidize these political entities constitutes a serious violation of First Amendment speech and associational rights.
The Court has recognized that laws compelling government workers to subsidize speech on “core issues such as wages, pensions, and benefits” may themselves impermissibly abridge their First Amendment rights. Harris v. Quinn, 134 S. Ct. 2618, 2632 (2014). In reality, the agency-fee system countenanced by Abood inflicts far greater First Amendment injury, forcing workers to fund speech that violates their consciences, their beliefs, their political commitments, and their principles. As a factual matter, Justice Frankfurter was right when he labeled “rather naïve” the assumption underlying Abood “that economic and political concerns are separable.” Int’l Ass’n of Machinists v. Street, 367 U.S. 740, 814 (1961) (Frankfurter, J., dissenting).
The failure of that assumption is reason enough to overrule Abood, and the serious injury that decision continues to inflict on dissenting public-sector workers only heightens the urgency of so doing. The Court should reverse the decision below.