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Our Founding Fathers Would Support Fair-Share Fees. History Shows Us Why

[caption id="attachment_10831" align="alignleft" width="620"] U.S. Supreme Court building in Washington, D.C.[/caption] First Amendment protections may seem like an uncompromising absolute, something that the U.S. Supreme Court, nor Congress, nor any entity may ever infringe upon or refashion. The court itself, however, has long permitted the government latitude in interpreting its own employees’ free speech rights, insofar as they are in service of maintaining a cohesive and peaceful public workforce and do not extend to matters that don’t involve the workplace. The balance struck in Abood v. Detroit Board of Education, the unanimously-decided 1977 case upholding the constitutionality of union fair-share fees in the public sector, finds its roots deeply entwined with how the Framers wrote and interpreted the Constitution. Starting with George Washington himself, leaders of all three branches of government have for centuries acknowledged the need to adapt free speech protections to the realities of sustaining an efficient and loyal government workforce. Yet in a case currently before the court, all eyes are watching whether the justices will heed the Framers’ interpretation of the First Amendment, or will they eschew constitutional originalism in favor of political jockeying. In Janus v. AFSCME Council 31, heard Monday, the court will unnecessarily revisit Abood. Fair-share fees are permitted in Illinois; lawful and constitutional. In exchange for a collective bargaining unit of a union representing everyone in the shop (even nonmembers), as the law mandates, all workers must pay their fair share of the cost negotiating the contract, other collective bargain and contract-related activities, and other basic representation. The fees do not support any political activity or restrict employees from voicing their opinions inside or outside the workplace. Anti-union forces have been transparent that this case is really about gutting public sector unions, yet still they insist that such compulsory fair-share fees infringe upon a nonmember’s free speech rights. To the contrary, the court has long sanctioned the government’s “constitutionally justified" right to modestly burden its employees’ First Amendment rights as does any employer. For example, the 1939 Hatch Act prohibits federal employees from expressing political views or participating in political matters that interfere with or are incompatible with their work. Most states have adopted similar law for their workforce. Conservative justices, including Justices Anthony Kennedy, William Rehnquist and Antonin Scalia, have dissented from their liberal colleagues’ views on this by finding an originalist view of the constitution permits governments to fire even very low-level workers because of their political affiliation or views. With those concepts in mind, it is hard to imagine how fair-share fees could be regarded as incompatible with the First Amendment. Indeed, early leaders and Framers, starting with Washington and on through John Adams, Thomas Jefferson, Andrew Jackson and Abraham Lincoln, routinely engaged in political patronage—hiring and firing based on political affiliation—as a means to ensure the success of the government. Despite patronage seeming in conflict with the First Amendment, the court during these early administrations never found this practice unconstitutional, and the Framers themselves—those who crafted free speech protections in the first place—never saw it as at odds with the First Amendment. To the contrary, the Framers thought patronage (and thus some light restrictions on speech) was essential to the vitality of the government. While patronage has since been restricted by statute, the original view of the Constitution was not averse to it. Accordingly, any originalist examining the issue of fair-share fees with the Framers in mind would realize that if the government could condition employment on political views in the interest of government efficiency, surely it can require public employees to pay their fair share of the costs of representation that serves their interests. A court ruling in Janus that agrees with these anti-union petitioners and finds that fair-share fees violate First Amendment protections would therefore spurn constitutional originalism in favor of a political interpretation of the Constitution. That’s why I submitted a brief to the court on behalf of the American Federation of Government Employees urging the justices to reject partisan attempts to undermine unions in the name of the First Amendment and to affirm the constitutionality of fair-share fees. The Supreme Court’s longstanding reverence for and deference to the Framers of the Constitution should transcend any partisan implications inherent in cases that come before it. If the justices vote against unions in Janus, it will be clear that originalist interpretation of the Constitution has fallen victim to political maneuvering—and the Framers will surely be rolling over in their graves. David A. Borer is general counsel for the American Federation of Government Employees, the largest federal employee union representing 700,000 federal and D.C. government workers nationwide and overseas.