Freedom Foundation Litigation Team Files Amicus Brief in U.S. Supreme Court Friedrichs case.

Freedom Foundation Litigation Team Files Amicus Brief in U.S. Supreme Court Friedrichs case.
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Freedom Foundation Litigation Team Files Amicus Brief in U.S. Supreme Court Friedrichs case.

On Friday, the Freedom Foundation’s legal team filed an amicus brief supporting the petitioners in Friedrichs, et al. v. California Teachers Association, et al. , which is projected to be the most significant of the U.S. Supreme Court’s 2015-16 term.

Expected to reach a judgment near the end of next June, the Court will face two questions: (1) whether the First Amendment protects non-union public school teachers from being forced to pay compulsory union fees, and (2) whether it violates the First Amendment to require that public school teachers affirmatively object to subsidizing “nonchargeable” speech by government unions, rather than requiring those teachers to affirmatively consent to subsidizing such speech.

Essentially, Rebeca Friedrichs and her fellow teachers first are asking the Court to overrule its 1977 decision in Abood v. Detroit Board of Education, which allows states and unions to force non-union employees to pay agency, or “fair share,” fees. Secondly, they ask that the Court declare unconstitutional “opt-out” schemes, whereby government unions immediately begin exacting full union dues from employees and force objecting employees to follow various processes to “opt-out” of union membership and political spending.

Compulsory Unions Dues

The first issue has attracted the most attention, and that’s because it seeks to directly overrule previous Supreme Court precedent. In the Abood case, the Supreme Court undertook a meagerly analysis and relied on private-sector labor law to conclude that non-union public employees could be forced to subsidize the “representational” costs of collective bargaining. Translation: States can pass laws and enter labor contracts requiring every member of the public workforce to subsidize at least some portion of union activities.

There are several problems with Abood, not the least of which is the presumption that unions benefit all workers in a consistent, measurable way. But if that were true, unions probably wouldn’t have to force workers to pay fees. Second—and subsequent cases have borne this out—the unions themselves get to decide what portion of union fees is “representational” and what portion is political. Needless to say, their math is… questionable.

But the major problem with Abood lies with its misunderstanding about the very nature of public-sector labor negotiations. Under Abood, the First Amendment ostensibly protects non-union public employees from paying for the union’s ideological and political speech (such as campaign spending and donations to radical social organizations). The problem is, every aspect of labor negotiations with the government is inherently political. If the union seeks higher wages, bigger pensions, and more generous benefits, then they are bargaining over issues squarely within the public interest. This takes from “The People,” the right to democratically craft policy affecting the size of government and the public fisc.
Because all public-sector union activities are inherently political, the First Amendment should protect public employees from being forced by the government and unions to subsidize speech with which they do not agree. Abood should be overruled.

Opt-Out Regimes

The issue the Freedom Foundation chose to address is the second question posed to the Court. Does the First Amendment prohibit “opt-out” dues-exaction schemes? Our answer, of course, is yes.

The Freedom Foundation’s brief is unique because it offers to the court an account of our experience with unions aggressively implementing opt-out regimes here in Washington.

We’re just over a year removed from Harris v. Quinn, another bellwether Supreme Court case. In Harris, the justices held that partial-public employees, such as homecare providers who receive Medicaid reimbursements for their work, cannot be forced to subsidize a union. In other words, if a provider is a union non-member, the state cannot force her to pay any fees to the union.

In Washington, the Harris directly applies to approximately 60,000 individuals. 60,000 individuals who have been forced to pay fees to a union, whether or not they consented.

Over the past year, the Freedom Foundation has made numerous efforts to notify providers of their right to choose whether they will financially support a union. Meanwhile, the unions have done what unions always do – freak out in a truly world-class way.

After Harris, the union also immediately implemented an “opt-out” exaction scheme. According to the plan, the state automatically deducts full union dues from every single home healthcare and childcare provider. The union only stops taking their money if and when providers send a letter to the union requesting that the fees stop. According to bargaining contracts, these providers, once deceived into signing a dues authorization card, may only opt out of dues during a 15-day window every year—a window that differs completely for each and every provider.  

Our brief explains why this system violates the First Amendment in many different ways. First, only the union and the state have the contact information for these individuals, and the union has – ever-so-conveniently – designated itself the sole party responsible for informing providers of their constitutional rights.

Conflict of interest, anyone? That’s why Freedom Foundation has embarked on a year-long educational campaign to tell those folks the truth.

In three cases, SEIU 775 and SEIU 925 sued the Foundation to prevent our receipt of public records involving partial-public employees’ contact information. Though we’ve defeated them at every level so far, they have delayed whenever possible, and now two cases await a decision from the Washington Supreme Court.

Remember, they’re spending money confiscated from providers to prevent providers from learning of their rights. Our experience in court allows us to show the Supreme Court exactly what type of controlling tactics the unions will employ to capture thousands of providers’ fees.

Numerous other examples abound and are fully detailed in our brief.

Taking money from people without their affirmative consent is not “fair” or “democratic.” It’s unconstitutional. But on a much more basic level, it’s stealing.  We filed this brief to make sure that it stops.  

The Freedom Foundation is proud to support Rebecca Friedrichs and the other brave teachers standing up for their rights against abusive government unions. The decision would have major effects for Washington, as tens of thousands of public employees would, for the first time in their working lives, be able to choose whether or not they want to contribute to a labor union.

If it goes the right way, perhaps unions will actually start working for their members, instead of their own ideological agendas.

Chief Litigation Counsel
ddewhirst@freedomfoundation.com
David is Freedom Foundation’s Chief Litigation Counsel. His team fights every day in Washington, Oregon, and California courts to defend the fundamental rights of workers, advance open and accountable government, and force politicians and unions to obey the law. David received his J.D. from The George Washington University Law School, and a M.A. from Regent University, where he studied constitutional law and thought. While in law school, he studied constitutional history with U.S. Supreme Court Justice Clarence Thomas and served as Symposium Editor for the Harvard Journal of Law & Public Policy. He has been published and interviewed by numerous outlets, including the Georgetown Journal of Law & Public Policy, The Federalist, The Wall Street Journal, Bloomberg, National Review, and many others. He previously worked for a law firm, a federal judge, and the U.S. Senate Judiciary Committee in Washington D.C. Except for the prevailing political climate, David thinks the Pacific Northwest is the greatest place in America. David, his gorgeous wife, and their two exceptional children love the outdoors, sports, and their great oaf of a hound, Oxford.