Standing with Parkland Students

I love the enthusiasm from the teenagers who survived the Parkland shooting.

In vivid detail on social media, you can see an awe-inspiring transition from victims to survivors to activists. Twitter hashtags morphed from #ParklandSchoolShooting to #ThrowThemOut to #NeverAgain, and later #MarchForOurLives.

Over the weekend on the Sunday talk shows, the Florida students became the most vocal advocates for gun safety and voting. At rallies, their hand-made signs told the story.

A telling NPR interview with ACS board member and Professor Adam Winkler documents what has (not) happened in our country following major school shootings and the prediction for change in the next year. We need our youth to engage in our civic process, and I'm encouraged to see them do so.

The Parkland students have galvanized our nation with plans for “March For Our Lives” on March 24 in Washington, D.C. and around the country. Parkland senior Emma Gonzalez’s remarks issued a powerful warning to lawmakers and gun advocates, rousing chants of “Throw them out.” In a New York Times opinion piece, Don’t Let My Classmates’ Deaths Be in Vain, Christine Yared echoed that message, stating “We need to vote for those who are for stricter laws and kick out those who won’t take action.”

Clearly, it takes children to do what adults have failed to do.

I hope that our youth send a message to elected officials by pre-registering NOW. Several states allow youth to pre-register to vote. In Florida, for example, teens can pre-register to vote at 16-years-old.

ACS calls on all of our youth and the entire nation to join us in spreading the word on pre-registration. Leading up to the March 24th marches, we're hoping to see record pre-registration numbers.

Let's spread the word that our youth are engaged and will not stand for business as usual.

Unusual Friend-of-the-Court Briefs May Make a Difference in Crucial Supreme Court Union Case

*This piece was originally posted on Medium.

Later this month, the Supreme Court will hear oral arguments in Janus v. AFSCME Council 31, which right-wing activists hope will lead a conservative Court majority to deal a “crushing blow to organized labor.” The case is part of a lengthy effort by labor opponents to get the Supreme Court to overrule the 1977 precedent in Abood v. Detroit Board of Education that public employers can require workers who choose not to join a union to at least pay for the costs of collective bargaining from which they benefit, despite free speech claims to the contrary. The Court split 4–4 on this issue in the Friedrichs case two years ago after the death of Justice Scalia, but anti-union activists hope the addition of the very conservative Justice Gorsuch could push the anti-union cause over the top. A close look at the record in Janus, however, suggests some important differences compared with Friedrichs and other cases that could well result in the preservation of Abood and union workers’ rights.

Specifically, around 40 amicus curiae or friend-of-the-court briefs have been filed in support of the position of AFSCME, the country’s largest public services employees union. Many of these are from civil rights groups, progressive academics, and others who we would expect to support the unions’ cause. But a number are from conservative groups and individuals who often oppose unions on policy grounds but strongly reject the claim that Abood should be overruled. And several of the briefs make new and powerful arguments that could make a difference for the Supreme Court justices.

Look at some of these unusual suspects: Briefs in support of labor’s position were filed by 10 Republican governors or states including in Montana and Iowa. Another was filed by 45 current or former Republican officeholders. Two very conservative professors, Eugene Volokh and William Baude, may clearly disagree with unions on policy matters, but strongly opposedinvalidating required payments by nonunion members for collective bargaining. Volokh (a First Amendment specialist) and Baude explain that such a ruling would have no more First Amendment basis than invalidating income tax payments by taxpayers who object to government activities. The United States Conference of Catholic Bishops also filed a brief in support of AFSCME, despite significant disagreements with the union on important issues like abortion. And perhaps the strongest defender of free speech rights in the country, the ACLU, filed a brief arguing against the effort to overrule Abood on free speech grounds.

Many of these and other amicus briefs argue strongly that principles of federalism, usually supported by conservative justices on the Court, clearly warrant maintaining Abood. Twenty states and many local governments that employ millions of workers have structured their labor systems to incorporate the collective bargaining model and fees for non-union members to support it, which would be severely undermined if not destroyed by overruling Abood. As the governor of Montana argues in his brief, states have clear “sovereign authority” to structure their own systems of labor relations, and that authority may well be “as sovereign a power as any that a State possesses.” When operating as employers, he notes, public entities have authority to “regulate even core First Amendment activities,” as the Court ruled in Garcetti v. Ceballos, and certainly can impose the “modest intrusion” involved in this case. In fact, the son of the Gil Garcetti from that Supreme Court case, Los Angeles Mayor Eric Garcetti, submitted an amicus brief along with a number of other mayors making similar arguments on the side of AFSCME.

In addition, the briefs filed in support of AFSCME directly answer some of the basic questions raised about Abood when a conservative majority on the Court criticized that decision in Harris v. Quinn in 2014. Specifically, the Harris majority raised questions about the difficulty in separating union expenditures for collective bargaining as opposed to spending for political purposes, and severely questioned what it called the “unsupported empirical assumption” that the imposition of an agency fee was necessary to allow public sector unions to continue to function. Briefs filed in Janus provide ample support for that assumption. Most notably, 36 economists and professors of law and economics, including three Nobel laureates, filed a briefshowing that “decades, if not centuries, of economic theory and empirical evidence,” including work by conservative economists like Milton Friedman, demonstrate that avoiding “free riders” and requiring non-union members to pay for the benefits of collective bargaining is essential to public sector unions’ survival. Other briefs not only reinforce this point but also, as with the brief filed by New York city unions, demonstrate empirically that processes to distinguish between collective bargaining and political expenditures have been “seamlessly ingrained” in the dues collection process for years, with audit and other protections for non-union members, and that the claim of practical problems is “a red herring” without empirical evidence.

Several of these and other briefs also demonstrate that, as a brief filed by Senators Sheldon Whitehouse and Richard Blumenthal explains, the campaign to overrule Abood is an effort to “enlist” the Supreme Court as one of the “agents” in a blatantly political conflict that threatens to “undermine” the “apolitical integrity” and “institutional standing and authority” of the Court. The Whitehouse-Blumenthal brief catalogues the political interests of the anti-union crusaders involved in the case and their efforts to get the Court to ignore settled procedural and other rules and principles, particularly the long-settled principle about the importance of avoiding the outright overruling of a previous decision like Abood on which many people rely.

Interestingly, one of those strongly anti-labor organizations, the Freedom Foundation, filed its own amicus brief disingenuously claiming that the facts show that public sector unions could “continue to function” without agency fees and that the Court can overrule Abood with the “confidence that labor-management relations will not be negatively affected.” But the Freedom Foundation is sending a very different message to supporters than what it is saying to the Court. The Whitehouse-Blumenthal brief contains a fundraising letter from the Freedom Foundation that shows that while they told the Supreme Court that unions can continue if Abood is overruled, they are saying precisely the opposite outside the Court. In a fundraising letter just a few months before the organization filed its brief, the Freedom Foundation predicted that as a result of a decision in Janus overruling Abood, “millions of workers nationwide” will stop sending fees to unions, and that the decision will help “drive the proverbial stake through their hearts and finish them off for good.”

Hopefully even a conservative justice like Chief Justice Roberts or Justice Kennedy will be sufficiently concerned with the Supreme Court’s institutional integrity to reject these efforts.

A number of other briefs explain in detail the tangible benefits that the bargaining system resulting from Abood has produced for working people, agencies, and the people they serve. For example, a brief filed by child protective service employees explains that Abood-based bargaining systems, under which unions represent workers supported by fair-share fees, have advantages “far beyond the bargaining table.” These include helping produce the trust, relationships, and funding base that permit unions to cooperate with child protection agencies to yield significant improvements in services to children who need them. The brief lays out how this process produced significant bipartisan work in Massachusetts that yielded substantial and acclaimed improvements in agencies’ intake and supervision systems. In Cuyahoga County, Ohio, for example, the results of such collaboration were specific and measurable — agreed-to reforms resulted in a decrease of children in county custody by almost 2,000 in one year, a decrease in the amount of time between intake and investigation from six months to less than 60 days, and a decrease in the number of child deaths for children under county supervision of 25 percent in three years.

We will not know until later this year how the Supreme Court decides the Janus case. The Court is likely to be closely divided, with the four moderate justices likely to resist overruling Abood based on recent decisions, but requiring one more vote to prevail. Based on those recent decisions, that vote may well be difficult to obtain. But as the nation listens to the February 26 oral argument for clues on how the Court may rule, the clear lesson from the many briefs filed in the case is that the Court’s decision could have enormous consequences, not just for AFSCME and other public unions, but also for millions of working people and numerous states, cities, and other employers around the country, as well as for the millions of Americans served by public sector union members.

Can He Do That? (Reprise): Trump’s Draft Offshore Oil and Gas Leasing Plan

For the past year or so, a steady refrain in environmental and regulatory law has been “can he do that?” – the ongoing reexamination of presidential and executive branch authority against a dizzying backdrop of reversals, revisions, and rescissions of Obama Administration policies and rules. My own attempts to answer this question included a look at last April’s Executive Order 13795 on “Implementing an America-First Offshore Energy Strategy,” which attempts to extend the new watchword of “energy dominance” to the outer continental shelf.

On January 8 of this year, pursuant to that Executive Order and the Outer Continental Shelf Lands Act (OCSLA), the Bureau of Ocean Energy Management (BOEM) issued a draft proposed oil and gas leasing program for 2019-2024, intended to supersede the existing plan for 2017-2022. The new proposal would open up more than 90% of all outer continental shelf resources, including ending long-standing moratoria on drilling off the Atlantic and Pacific coasts and large portions of Alaska. It also represents an outright reversal of the Obama-era plan, under which 94% of offshore acreage is presently off-limits.

Scarcely a day after the proposal was released, Secretary of the Interior Ryan Zinke abruptly tweeted that federal waters off of Florida would be “off the table,” following a meeting with Florida Governor Rick Scott. That announcement led to multiple requests from governors and lawmakers along both coasts, asking that their states also be removed from the plan. Later pressed on the Florida exemption, Zinke offered terse remarks about “coastal currents” and “geology.” His statements may or may not be reflected in the next version of the plan, but they immediately muddled the process and opened it to charges of politicization and to potential litigation.

Can he do that? In one sense, yes; the Secretary can say whatever he wants, and OCSLA Section 19 specifically envisions a process that considers the views of state governors and local governments. What will matter, as BOEM’s director then had to turn around and testify to a House committee, is what the agency does. The plan is still in draft form, and until it gets revised, the question of exempting Florida or any other state remains an open one, regardless of meetings and tweets.

But to understand the alarm raised by Zinke’s actions, we need to look not just at Florida, but at the plan as a whole: like other proposals by this Administration, it is bold, even brazen. It may well be possible, as former Obama Administration officials acknowledge, to flip the script from 90% off-limits to 90% open to development, but that in itself isn’t much of a governing principle. Dressing it up in the language of “energy dominance” may provide somewhat more of a principle, but still a fairly thin one, given the heights that U.S. oil and gas markets have already attained under the existing regulatory framework.

To be fair, the current Administration has not shown much interest in incremental change; it does not feel particularly bound by history or precedent; it tends to eschew a long-term, relational approach in favor of a transactional one. Viewed in this light, the draft leasing proposal appears to be Zinke’s idea of a “strong opening bid,” to be countered and bartered as he sees fit. And as a policy matter, that might pass muster: OCSLA Section 18(a) requires the Secretary to consider eight separate environmental, economic, and geographic factors, and different administrations certainly may attempt to balance these factors differently.

As a legal matter, however, BOEM’s leasing plan will inevitably be reviewed in court. Under OCSLA caselaw, the final decision has to be based on “substantial evidence,” and it can’t be “arbitrary” or “irrational” – a test akin to, though distinct from, the “arbitrary and capricious” standard that governs most administrative law. Like that standard, it largely boils down to whether the agency based its decision on the statutory factors and the data in front of it; whether it followed the OCSLA process, including by considering and responding to public comment; and whether the final decision contains logical inconsistencies or inequities that can’t be explained away.

And it’s with judicial review that too strong of an opening bid, or too free-wheeling of a process, ultimately could lead to trouble – as this Administration has learned in other contexts. The problem with tough rhetoric, or with creating even the appearance of governing by Twitter, is that it sets a high bar to prove that you’re not just flipping the script for the sake of flipping it, that you’re not listening to certain communities and ignoring others, or that you’re not making decisions without regard to markets or (according to some reports) with little regard to where the resources are even likely to be found. Given the stumbles out of the gate, it will be extremely interesting to see how the final leasing plan evolves and how it gets tested in court.

In short, can he do that? Yes, very likely, though the leasing program’s precise shape will be determined by the ongoing notice-and-comment process, which is open until March 9. Will it stand? Stay tuned to the D.C. Circuit, which has exclusive jurisdiction over OCSLA leasing decisions.

Free Speech and Government Employment: A Plea for Consistency and Fairness

*This is part of ACSblog's Symposium on Janus v. AFSCME

Janus v. American Federation of State, County, and Municipal Employees, Council 31 presents a First Amendment challenge to Illinois public-sector labor-relations statutes and contracts that require union-represented employees to pay a fee to the union for services that the union is required by law to provide. Hundreds of such municipal and state laws have been on the books for over half a century in about half the states, and the Supreme rejected a First Amendment challenge to them in 1977 in Abood v. Detroit Board of Education. To overturn this settled practice will upend labor relations affecting tens of thousands of teachers, first responders, health care providers, clerks, and other public servants. To rule for the challengers will also require the Supreme Court to make new law in the area of free speech with implications far beyond the working conditions of public employees.

Collective bargaining in both the public and private sector is modeled on political democracy. A union is elected by a majority. Like an elected government, it develops and implements rules governing the community and must be able to charge those whom it represents for the cost of doing so. In the political sphere those payments are known as taxes; in the workplace they are known as dues (for those who choose to join the union) or agency fees or fair-share fees (for those who don’t).

Unlike elected political leaders, however, unions have a duty to represent all fairly. This legally enforceable duty of fair representation prohibits union representatives from discriminating against those who oppose or choose not to join the union. And it requires unions to provide services to all, not just to those who pay their fair share.

Janus argues that nobody should have to pay fees because paying the fee is speech, or at least it is a subsidy for speech, and the government cannot compel speech. The Supreme Court would never accept this argument about taxes. If taxes were optional, people would free ride on the bus or on their neighbor’s willingness to pay taxes to fund schools and parks. Nor would anyone claim that a private organization (which is what a union is) must give away services for free: airlines don’t have to let passengers fly free, and insurance companies don’t have to pay the medical bills of someone who didn’t purchase insurance. As Justice Antonin Scalia explained in Lehnert v. Ferris Faculty Association, in which the Court unanimously upheld a Michigan law requiring fair-share fees, “where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost.”

The business groups who challenge Illinois law in Janus argue that the burden on unions is small because they benefit from the opportunity to bargain and because the burden of providing free representation is small. They rely on the Court’s 2014 decision in Harris v. Quinn, which invalidated an Illinois law providing for fair-share fees for home-care workers because, in the Court’s judgment, that particular legal regime gave the union insufficient responsibilities in contract negotiation or administration to warrant charging nonmembers. The Harris Court minimized the significance of the statutory requirement of fair representation, explaining that “private speech often furthers the interests of nonspeakers, and that does not alone empower the state to compel the speech to be paid for.” But there is no other circumstance where, as Justice Scalia emphasized in Lehnert, the law allows “free riders whom the law requires the union to carry--indeed, requires the union to go out of its way to benefit, even at the expense of its other interests.”

The threat of free riding prompted the Supreme Court to reject First Amendment challenges to compulsory bar dues for lawyers (Keller v. State Bar of California), and compulsory student-activity fees at public universities (Board of Regents v. Southworth) even though such dues and fees are used to fund speech with which some lawyers and some students disagree. Harris distinguished bar dues and student fees on the ground that the state has a greater interest in requiring lawyers and students to fund the admission, discipline and student activity systems than did Illinois in requiring home-care workers to fund the negotiation and administration of a contract. But that distinction is not available in Janus: given the importance to state and local governments of managing their workforces, it would be a shocking departure from federalism principles for the Supreme Court to decide that governments have no interest in requiring cost-sharing of the elaborate personnel processes that public employment often entails.

What Janus asks the Court to rule is unprecedented elsewhere in the law. Cities routinely hire lobbyists to protect their interests in state and federal legislatures. Could taxpayers object to cities using their funds to engage in lobbying with which the taxpayers disagree?  Every employee who is covered by a health or pension plan contributes some tiny amount to the insurance company’s lobbying or other political speech or a pension plan’s investment in companies that engage in speech with which the employee may disagree. Neither taxpayers nor pension or health plan participants can object to government or plan lobbying or other speech because we treat it as the speech of the organization, not the individual.

  The rules should be the same for unions as other private organizations that collect mandatory fees for services. Unions have a First Amendment right to spend their money to advance the goals chosen by the elected leadership. If it violates an objecting employee’s free speech right to pay her fair share of contract negotiation and administration, why does it not equally violate the rights of the union and its members to force them to use their money to enforce the contract rights of the free rider? It can’t be the dissenting nonmember has First Amendment right not to pay for very same thing that the union and its members are required by the duty of fair representation to provide to that nonmember.

 A balanced approach to the First Amendment would reject the compelled speech claim. Contractually required fees for union representational services are no more a compelled subsidy for expressive activity than is the union’s duty to provide fair representation to all represented employees. Like insurance companies, homeowners’ associations, and utility companies, unions pool money contributed by many stakeholders and spend it to provide services and to engage in expressive activity. When they do so, they advance the interests of the entity and its stakeholders who support the action, and, sometimes, they thwart the interests of stakeholders who oppose it. But they do not violate anyone’s First Amendment rights because the speech is the entity’s, not that of the individual stakeholders.

It is important to remember that government employees have no First Amendment rights to engage in speech on the job. In Garcetti v. Ceballos, the Supreme Court held that a deputy district attorney had no First Amendment protection for writing a memo to his supervisor raising concerns about the use of possibly false police testimony in a criminal case. In Borough of Duryea v. Guarnieri, the Court held that a police chief had no First Amendment protection for complaints he made about oversight of how he did his job. Because government employees have no First Amendment right to speak to their supervisors about their working conditions, it is logically inconsistent to say they have a right not to pay the cost of such speech. The Court should not hold there is a First Amendment right to refuse to pay money to support speech that is not itself protected by the First Amendment. In all other compelled-speech cases, including its compelled-fee cases, the speech that was being compelled was protected by the First Amendment. In West Virginia Board of Education v. Barnette, the original compelled-speech case, the right to refuse to salute the flag existed because a flag salute is First Amendment speech.

One final thought about the implications of a ruling for Janus. If government employees cannot be compelled to pay their fair share of collective bargaining because the negotiation and administration of a contract is First Amendment speech, does that mean that collective bargaining is speech protected by the First Amendment? Do employees therefore have a First Amendment right to bargain collectively? Does it call into doubt content-based restrictions on which employees may bargain, such as Wisconsin enacted after Scott Walker’s election 2011 when it stripped bargaining rights from teachers but left them for police officers, or such as many states have that prevent teachers from bargaining over class size but allow them to bargain over pay? One doubts the Court would so hold. Or is the Court truly prepared to hold that the only First Amendment right government employees have regarding speech related to their working conditions is the right not to pay fees to their union?

Beware the Unintended Consequences of Janus

*This is part of ACSblog's Symposium on Janus v. AFSCME

With oral argument scheduled February 26 and Justice Gorsuch on the bench, conventional wisdom is that the Supreme Court is poised to reverse forty years of precedent in Janus v. AFSCME. Janus is one piece of a longstanding campaign by conservative groups to reduce the power of unions.The desires of many conservatives to weaken unions by removing their power to collect fees from employees they are compelled by law to represent appear to have blinded them to the potential unintended consequences of Janus. A brief filed by conservative scholars, however, reveals that some are beginning to awaken to the potential for Janus to disrupt existing constitutional doctrine, the ability of government employers to control their workforces, and stable labor relations in the United States.

The uniquely American system of labor relations relies on the doctrine of exclusive representation to insure that employers will have to deal with only one union, if chosen by a majority, for each bargaining unit of employees that have similar jobs and common interests.  As a corollary, the union is required to represent all employees in the bargaining unit fairly, even if the employees choose not to join the union. Because the union is mandated to represent the employees, many states allow the union to charge nonmembers a fee for representation. In 1977, the Supreme Court upheld such fees as constitutional in Abood v. Detroit Board of Education so long as the fees were used for collective bargaining and contract administration and not for any unrelated activities of the union. Janus, however, argues that Abood must be overturned because all activities of the union, including collective bargaining and contract administration, constitute protected political speech, and the plaintiff cannot be compelled to fund such speech.

The consequences of a ruling for the plaintiff are enormous, and not just for unions. If one pillar of the labor relations system is removed, the system may disintegrate, resulting in multiple unions representing the same groups of employees, competing with one another to obtain the best contract for their members.The employer will be required to contend with several unions demanding different wages and working conditions. Further, unions and their members will have their own constitutional claims if unions are required to represent employees without compensation. The speech rights of unions and their members are impaired if they must expend resources that could otherwise be used for their own speech to represent nonmembers without compensation. Additionally, if the objecting nonmembers have a right not to associate with the union, then the union members have a corresponding right not to associate with the objectors. Also, a mandate for free representation implicates due process, for the union’s property is being taken without compensation.

A ruling that all union activity is political speech has additional ramifications. Courts have regularly ruled that states like Wisconsin can provide collective bargaining rights to some groups of employees and not others, using the rational basis test to find no equal protection violation. Similarly, courts have allowed states to provide payroll deduction to some groups and not others on the same grounds. But if all union activity is protected political speech, then these distinctions implicate fundamental rights, invoking strict scrutiny for such classifications. Thus, the differential treatment of employee groups by the states may not survive. Indeed, unions may even have an argument that there is a constitutional right to collective bargaining.

Equally unlikely to survive are many governmental employer restrictions on employee speech. A long line of cases allows government employers to impose various restrictions on employee speech. The Supreme Court distinguishes employee speech from citizen speech, permitting employers to limit and control employee speech in the interests of the government as employer. When employees speak about their own terms and conditions of employment as opposed to matters of concern to the public, employers typically prevail in cases where they have disciplined or discharged employees for their speech. A ruling in favor of the Janus plaintiffs could obliterate the distinction, requiring employers to tolerate much unwanted speech by their employees.

Finally, if Janus prevails, the case will cast doubt on many other situations where the government requires payments from individuals that are used for purposes to which they object. As scholars, unions, and indeed the Court itself, have noted, taxes, bar dues, university student fees, utility bills, insurance premiums, government pension funds, continuing education requirements for licensing, and homeowners’ association dues involve government-compelled payments, sometimes to third party organizations that may use them for lobbying or other activity objectionable to those making the payments. If such payments are open to challenge on First Amendment grounds, the Court may have opened Pandora’s box.

There is a simple way to keep Pandora’s box closed. Reject the arguments of the Janus plaintiff and reaffirm Abood, which has served the country well for more than forty years.

Using History to See the Glass Part Full in Janus v. AFSCME

*This is part of ACSblog's Symposium on Janus v. AFSCME

This term, the Court in Janus v. AFSCME will decide the constitutional fate of fair-share fees for public sector unions. These fees support unions’ collective bargaining work on behalf of employees they are legally required to represent but who are not union members. Most prognosticators expect the Court to hand the National Right to Work Legal Defense Foundation (NRTWLDF) a win on its claim that such fees violate the First Amendment rights of non-union workers. Yet, as I develop further below, the history that led to Janusoffers three thin rays of hope to the labor movement.

First, history highlights the role principled conservative justices have played in thwarting right-to-work advocates’ prior attacks on union fees, pointing the way to a possible victory for unions in Janus. In 1977, the Supreme Court decided Abood v. Detroit Board of Education, the decision that found fair-share fee agreements for public-sector unions constitutional and which the petitioners in Janus seek to overturn. At the time, the idea that public-sector workers had any First Amendment protections on the job was both new and contested. During the 1950s and 60s, the Court gradually recognized but inconsistently applied constitutional protections to public-sector workers. Not until the Court’s 1968 decision in Pickering v. Board of Education did it clearly establish that the First Amendment protected government employees. In the eyes of the conservative justices Nixon appointed to the Court soon after, Pickering was a dangerous precedent. Over the next years, they joined majorities dismissing government workers’ First Amendment claims and dissented from decisions granting them.

When NRTWLDF argued in Abood that all the fees unions charged non-members were unconstitutional compelled speech, only Justice Rehnquist was consistent. His fellow Nixon appointees thought the majority was mistaken to find the fees unions charged to negotiate and administer collective bargaining agreements on behalf of non-members constitutional. Rehnquist, in contrast, joined the majority. As he explained in a concurrence, Rehnquist was “unable to see a constitutional distinction between [the] governmentally imposed requirement” in Abood and that in Elrod v. Burns, a recent First Amendment challenge brought by government workers, which he and his fellow Nixon appointees had argued in dissent should have been rejected. Rehnquist took this position despite agreeing with NRTWLDF that the fair-share fees allowed under Abood supported political speech.

Twelve years later in Communications Workers of America v. Beck, NRTWLDF tried to convince the Supreme Court to apply Abood to private-sector unions under either the First Amendment or federal labor law. President Reagan’s Solicitor General, Charles Fried, despite intense pressure from within and outside the administration, rejected the NRTWLDF’s claims in full. So did the Reagan-appointed Justices Antonin Scalia and Sandra Day O’Connor, as well as Nixon appointee Justice Harry Blackmun. (The rest of the Court crafted a statutory analogue to Abood.) Conservatives had once again put constitutional principle ahead of any sympathy for right-to-work claims.

Will NRTWLDF confront any principled conservatives this time around? There is good reason to be skeptical. All the Court’s conservative justices save Justice Gorsuch have authored or signed on to opinions in the last dozen years that indicate a cautiousness about government workers’ First Amendment rights. However, they also all voted to overturn Abood when an equally divided Court left it intact in Friedrichs v. California Teachers Association, the last constitutional challenge to public-sector fair-share fees. Nonetheless, the best chance for preserving public-sector fair-share fees may lie with convincing at least one of those justices to follow their predecessors and be cautious about right-to-work litigants’ First Amendment claims just as they are about those made by other government workers.

Second, even if NRTWLDF wins before the Court, the history of right-to-work litigation highlights that the very compromise such an outcome will require of conservative justices may offer a silver lining for unions and workers. Just as NRTWLDF lawyers saw great opportunity for their cause in Pickering, their win in Janus could create opportunities for public-sector workers and their unions. One way conservative justices have limited Pickering is to narrowly define the speech “upon matters of public concern” that Pickeringprotects. In a recent right-to-work case, Harris v. Quinn, Justice Alito, writing for a five-justice majority, reasoned in dicta that fair-share fees implicated protected matters of public concern.

The Court in Janus may find a way to hold Pickering inapplicable to fair-share fees. Even so, if it overturns Abood, it will likely find that everything public sector unions do, including collective bargaining over terms and conditions of work, involves political speech. That could still open the door to future Pickering protection of such speech, as well as the expression of other political opinions. Indeed, Reagan’s former Solicitor General Fried co-authored an amicus brief in Janus warning the Court against adopting NRTWLDF’s argument that all union speech is political speech. Such a holding, he and his co-author, Robert Post, caution, would disrupt the framework built since Pickering to limit the scope of those rights, “set[ting] in motion drastic changes in First Amendment doctrine that essentially threaten to constitutionalize every workplace dispute.” This could be good news for unions and workers, as legal scholars such as James Pope and labor advocates such as Shuan Richman have argued.

Third, should an NRTWLDF victory not provide the quick path to Pickering protections Fried predicts, the history that led to Janus is a testament to advocates’ ability to dramatically alter constitutional law, offering promise that right-to-work advocates’ victory today can be bent to benefit workers’ collective voice in the workplace tomorrow. The first constitutional challenge to union fees was brought seventy years ago by Cecil B. DeMille, a famous movie mogul and radio host. The California Supreme Court easily dismissed his case in DeMille v. American Federation of Radio Artists, finding that the fee his union levied to oppose a state right-to-work law did not compel or express DeMille’s speech. “The member and the association are distinct,” the court reasoned, so the money spent and the message sent were the union’s not DeMille’s. The U.S. Supreme Court declined review.

In response, DeMille and other right-to-work proponents embarked on a decades-long campaign to change how courts viewed the constitutionality of union fees. Critically, they engaged not only in coordinated litigation, but also political education and popular mobilization. They sought favorable news coverage and made the constitutional case against union fees in speeches, newsletters, and films. They described the push for right to work as a civil rights struggle, seeking to harness that term’s cachet. As DeMille’s political strategist counseled, they also hid the industrialists and wealthy individuals backing their efforts and “calling the shots” behind a public face of “housewives, farmers, small businessmen, professional people, and wage earners.”

Thanks in part to their popular constitutionalist campaign, right-to-work advocates made steady headway in the courts. In the 1950s, they brought numerous suits asserting that all union fees were unconstitutional. While they lost that claim, they got the Supreme Court to state for the first time that union fees for political expenditures raised First Amendment concerns. In the 1960s, NRTWLDF helped generate the case that became Abood. NRTWLDF again failed to establish the unconstitutionality of all union fees but it finally secured the narrower constitutional claim DeMille had made in his unsuccessful suit. Now, NRTWLDF is poised to win the claim right-to-work proponents first made sixty years ago: that all union fees, even fair-share fees, are unconstitutional.

Constitutional claims in general, and First Amendment claims in particular, have long been off limits for unions because of the right-to-work threat. Resolving that threat against the unions in Janus will open the door for them to reclaim the freedoms of association and speech that once buoyed the labor movement. Outside the courts, those claims may prove a potent tool for organizing as well as for making the case for worker organization and concerted action to the public. As the history that led to Janus demonstrates, integrating public education, popular mobilization, and legislative campaigning with litigation can fundamentally change constitutional law within the courts as well.

This post draws on her book, The Workplace Constitution from the New Deal to the New Right.