AFSCME filed its response brief in Janus last week. It defends Abood‘s distinction between collective bargaining and lobbying as doctrinally sound and makes a number of other arguments.
AFSCME first argues that the Court lacks subject matter jurisdiction. Janus originated as an action for declaratory judgment by the Governor of Illinois, who wanted to impound agency fees bound for AFSCME and asserted that the state’s agency fee scheme was unconstitutional. When the district court dismissed the Governor’s complaint for lack of standing and failure to raise a federal question, it also allowed Janus to intervene. The union argues that intervention did not cure the jurisdictional issue. Dispensing of this argument in a few paragraphs, AFSCME gives the Court a procedural out, if it wants one.
Bidding for the Court’s originalists, the union argues that the original understanding of the First Amendment gave public employees “‘no right to object to conditions placed upon terms of employment — including those which restricted the exercise of constitutional rights.’ Connick, 461 U.S. at 143.” Rather, First Amendment protection for employee speech began “in the Warren Court era,” AFSCME stresses. And, “[e]ven then,” the Court carved out from protection speech regulations made by the government acting as an employer.
Defense of Abood
The heart of the brief defends Abood as consistent with the First Amendment’s reach in government workplaces and as a longstanding precedent entitled to stare decisis.
Under a line of cases that includes Pickering and Garcetti, AFSCME explains, employee speech that “owes its existence” to professional duties is not protected by the First Amendment — it is employee speech, not citizen speech. And although the First Amendment is implicated when public employees engage in “citizen speech on matters of public concern,” the Court has not applied strict scrutiny to that kind of speech. Instead, the cases balance the government interest in managing its workforce against the interests of the employee in that speech.
Here, AFSCME defends against the United States’ position as amicus that “[t]he speech subsidized by agency fees — union negotiations with the government over wages, benefits, and similar issues of broad interest to citizens — is far removed from the scope of most public employees’ individual job duties” and is therefore speech on matters of public concern. AFSCME characterizes collective bargaining as “part of the government’s internal operations” and therefore an aspect of a public employee’s “conditions of employment.” Designing a labor-management relations system is the government’s prerogative, AFSCME emphasizes, and the state’s decision to allow collective bargaining is justified by its interest in an efficient workforce. This principle, the brief notes, can be found in cases upholding everything from grievance procedures to political patronage legislation.
AFSCME also attempts to rebut Janus’s argument for strict scrutiny, which relied heavily on Knox and Harris, by pointing out that neither case implicated the government’s proprietary interests.
Notably, AFSCME also brings up Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), which held that exclusive representation does not violate the First Amendment right to free association. Knight‘s key line — between public fora and fora for speech about government workplaces — coheres with Abood as well, the brief points out.
After building up its favored doctrinal framework, AFSCME mounts a more detailed, fact-intensive defense of the claim that agency fees only implicate employee speech, not speech on matters of public concern. The free rider problem is real, AFSCME argues, and so is the government’s interest in establishing a well-funded bargaining partner. Further, AFSCME says, the line between collective bargaining and lobbying is sound. Most of collective bargaining involves routine workplace matters and it occurs through a process created and mandated by state law, distinguishing it from petitioning the government on political matters. Finally, AFSCME argues, even if some items that are currently chargeable are political, that wouldn’t justify overruling Abood. Rather, it would implicate the line drawn in Lenhert, an issue that AFSCME argues is too fact-sensitive to be taken up here, where the factual record is thin and where Petitioner has not asked for such relief himself. (The amicus by Robert Post and Charles Fried that we covered here a few weeks ago was addressed to the Lenhert issue too.)
AFSCME also appeals to stare decisis, arguing that abandoning Abood requires special justification because of its longevity and the significant reliance interests in states with collective bargaining regimes. This part of the brief also emphasizes two important, related themes. AFSCME hammers the point that the case has virtually no factual record. There’s nothing before the Court outlining what expenses are chargeable, detailing what the union does with its funds, or establishing Janus’s particular objections or how he has raised them in the past. AFSCME contrasts what it paints as Janus’s vague and unsupported factual assertions about state public sector unions with the many times that courts and, moreover, legislatures have determined the opposite.
Finally, AFSCME lays bare the stakes: “overruling Abood” would be “directly at odds with Knight,” a “ripple effect” that “Petitioner does not hide.” As the brief puts it, “the core of his challenge implicates the validity of exclusive union representation itself.”