GOP lawmaker says SCOTUS threatens local control

Kevin J. Mullin5:04 p.m. EST January 10, 2016

State and union rights are at stake in a Supreme Court case about California teachers.

(Photo: Michael P. Farrell, (Albany, N.Y.) Times Union, via AP)


I am a Republican senator in the Vermont General Assembly. It is my sworn duty to draft and pass laws that make sense for the people of my state. I know my state, I know my constituents and I know what makes the most sense for them, including when it comes to labor laws and policies.

But in a case called Friedrichs v. California Teachers Association, the Supreme Court is being asked to fly in the face of nearly 40 years of precedent and take away the autonomy of state legislators to decide what laws make the most sense for their people. It is being asked to do so on the basis of a radical theory that defies how our nation has always understood basic First Amendment principles and the balancing of interests they require. Indeed, the First Amendment has been interpreted to give state governments broad authority to manage their workforce, allowing state governments to impose certain limits on speech and association by their own employees where justified by important interests such as ensuring the efficient provision of public services — which benefits everyone in the state.

In states around the country, public sector unions — unions representing hard-working public servants like teachers and firefighters — negotiate for better wages and benefits. When bargaining, these unions are required by law to represent the interests of all employees in given workplace, not just those who have joined the union. When these efforts lead to either a bump in pay or an increase in health care benefits, everyone in that workplace receives those benefits, not just those in the union. That’s why in many states, unions are allowed to ask all employees who benefit from their negotiations, even those who don’t join the union, to chip in to cover the cost of that bargaining under fair-share arrangements.

I happen to think that these fair-share arrangements make a lot of sense for the people of my state. They guard against the temptation for some employees to free-ride — in other words, to receive the benefits of union bargaining, but pass the buck on to their fellow employees. That’s why I sponsored legislation in 2013 that ensures public employee unions can collect them. My colleagues and I in Vermont are not alone:nearly half of states currently use a fair-share arrangement.

But you don’t have to think that fair-share arrangements make sense to agree that the decision on whether to allow them should be left to the states, not the Supreme Court in Washington, D.C. This is fundamental federalism. When the founding fathers designed our system of government, they wrestled with hard questions about the proper balance of power between state and federal government. The founders empowered the federal government to provide national solutions to national problems, while preserving significant roles for state and local governments to make laws and policies that best suit local conditions so long as those laws didn’t conflict with another provision of the Constitution.


The Friedrichs challengers claim that the First Amendment demands one uniform policy preventing fair-share fees for the entire country. It doesn’t. Even when it comes to political speech — which is at the core of the First Amendment — the government, acting as an employer, has the authority to impose speech restrictions on its employees for the sake of preserving order and efficiency in the workplace. In short, there is a difference between the government regulating its employees and the government regulating its citizens.



In addition to undermining fundamental precepts of federalism and flouting decades of Supreme Court precedent, a ruling that demands a single nationwide policy will be highly disruptive. Nearly half the states have determined that fair-share fees make sense for their people, and thousands of contracts involving millions of employees are predicated on the existence of these arrangements. A ruling for the challengers would interfere with all of these contracts and force all of these state governments and the thousands of teachers, firefighters and other public workers they employ into protracted and potentially difficult contract renegotiations.

I respect our Constitution, I respect the First Amendment and I respect founding principles of federalism. That’s why I and 47 other current and former Republican legislators filed a friend-of-the-court brief urging the court to reject this challenge to fair-share fees. The court should conclude that the First Amendment poses no bar to fair-share fees and allow my fellow state legislators andme to continue to do what we’ve been doing for decades — making the policy judgments that make the most sense for the people of our states.

Kevin J. Mullin is a state senator from Vermont. He has joined a friend-of-the-court brief with 47 other current and former Republican legislators in Friedrichs v. CTA.