NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
MARK JANUS, PETITIONER v.
AMERICAN FEDER- ATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 31, et al.
on writ of certiorari to the united states court of appeals for the seventh circuit
[June 27, 2018]
Justice Alito delivered the opinion of the Court.
Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.
We upheld a similar law in Abood
v. Detroit Bd. of Ed.
431 U. S. 209 (1977), and we recognize the importance of following precedent unless there are strong reasons for not doing so. But there are very strong reasons in this case. Fundamental free speech rights are at stake. Abood
was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other
First Amendment cases and has been undermined by more recent decisions. Developments since Abood
was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that Abood
has countenanced for the past 41 years. Abood
is therefore overruled.
Under the Illinois Public Labor Relations Act (IPLRA), employees of the State and its political subdivisions are permitted to unionize. See Ill. Comp. Stat., ch. 5, §315/6(a) (West 2016). If a majority of the employees in a bargaining unit vote to be represented by a union, that union is designated as the exclusive representative of all the employees. §§315/3(s)(1), 315/6(c), 315/9. Employees in the unit are not obligated to join the union selected by their co-workers, but whether they join or not, that union is deemed to be their sole permitted representative. See §§315/6(a), (c).
Once a union is so designated, it is vested with broad authority. Only the union may negotiate with the employer on matters relating to “pay, wages, hours[,] and other conditions of employment.” §315/6(c). And this authority extends to the negotiation of what the IPLRA calls “policy matters,” such as merit pay, the size of the work force, layoffs, privatization, promotion methods, and non-discrimination policies. §315/4; see §315/6(c); see gener- ally, e.g.
, Illinois Dept. of Central Management Servs.
v. AFSCME, Council 31
, No. S–CB–16–17 etc., 33 PERI ¶67 (ILRB Dec. 13, 2016) (Board Decision).
Designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees. Among other things, this designation means that individual employees may not be represented by any agent other than the designated union; nor may individual employees negotiate directly with their employer. §§315/6(c)–(d), 315/10(a)(4); see Matthews
v. Chicago Transit Authority
, 2016 IL 117638, 51 N. E. 3d 753, 782; accord, Medo Photo Supply Corp.
321 U. S. 678, 683–684 (1944). Protection of the employees’ interests is placed in the hands of the union, and therefore the union is required by law to provide fair representation for all employees in the unit, members and nonmembers alike. §315/6(d).
Employees who decline to join the union are not assessed full union dues but must instead pay what is generally called an “agency fee,” which amounts to a percentage of the union dues. Under Abood
, nonmembers may be charged for the portion of union dues attributable to activities that are “germane to [the union’s] duties as collective-bargaining representative,” but nonmembers may not be required to fund the union’s political and ideological projects. 431 U. S., at 235; see id.
, at 235–236. In labor-law parlance, the outlays in the first category are known as “chargeable” expenditures, while those in the latter are labeled “nonchargeable.”
Illinois law does not specify in detail which expenditures are chargeable and which are not. The IPLRA provides that an agency fee may compensate a union for the costs incurred in “the collective bargaining process, contract administration[,] and pursuing matters affecting wages, hours[,] and conditions of employment.” §315/6(e); see also §315/3(g). Excluded from the agency-fee calculation are union expenditures “related to the election or support of any candidate for political office.” §315/3(g); see §315/6(e).
Applying this standard, a union categorizes its expenditures as chargeable or nonchargeable and thus determines a nonmember’s “proportionate share,” §315/6(e); this determination is then audited; the amount of the “proportionate share” is certified to the employer; and the employer automatically deducts that amount from the nonmembers’ wages. See ibid.
; App. to Pet. for Cert. 37a; see also Harris
, 573 U. S. ___, ___–___ (2014) (slip op., at 19–20) (describing this process). Nonmembers need not be asked, and they are not required to consent before the fees are deducted.
After the amount of the agency fee is fixed each year, the union must send nonmembers what is known as a Hudson
notice. See Teachers
475 U. S. 292 (1986). This notice is supposed to provide nonmembers with “an adequate explanation of the basis for the [agency] fee.” Id.
, at 310. If nonmembers “suspect that a union has improperly put certain expenses in the [chargeable] category,” they may challenge that determination. Harris
, at ___ (slip op., at 19).
As illustrated by the record in this case, unions charge nonmembers, not just for the cost of collective bargaining per se
, but also for many other supposedly connected activities. See App. to Pet. for Cert. 28a–39a. Here, the nonmembers were told that they had to pay for “[l]obbying,” “[s]ocial and recreational activities,” “advertising,” “[m]embership meetings and conventions,” and “litigation,” as well as other unspecified “[s]ervices” that “may ultimately inure to the benefit of the members of the local bargaining unit.” Id.
, at 28a–32a. The total chargeable amount for nonmembers was 78.06% of full union dues. Id.
, at 34a.
Petitioner Mark Janus is employed by the Illinois Department of Healthcare and Family Services as a child support specialist. Id.
10a. The employees in his unit are among the 35,000 public employees in Illinois who are represented by respondent American Federation of State, County, and Municipal Employees, Council 31 (Union). Ibid.
Janus refused to join the Union because he opposes “many of the public policy positions that [it] advocates,” including the positions it takes in collective bargaining. Id.
, at 10a, 18a. Janus believes that the Union’s “behavior in bargaining does not appreciate the current fiscal crises in Illinois and does not reflect his best interests or the interests of Illinois citizens.” Id.
, at 18a. Therefore, if he had the choice, he “would not pay any fees or otherwise subsidize [the Union].” Ibid.
Under his unit’s collective-bargaining agreement, however, he was required to pay an agency fee of $44.58 per month, id.
, at 14a—which would amount to about $535 per year.
Janus’s concern about Illinois’ current financial situation is shared by the Governor of the State, and it was the Governor who initially challenged the statute authorizing the imposition of agency fees. The Governor commenced an action in federal court, asking that the law be declared unconstitutional, and the Illinois attorney general (a respondent here) intervened to defend the law. App. 41. Janus and two other state employees also moved to intervene—but on the Governor’s side. Id.
Respondents moved to dismiss the Governor’s challenge for lack of standing, contending that the agency fees did not cause him any personal injury. E.g.
, at 48–49. The District Court agreed that the Governor could not maintain the lawsuit, but it held that petitioner and the other individuals who had moved to intervene had standing because the agency fees unquestionably injured them. Accordingly, “in the interest of judicial economy,” the court dismissed the Governor as a plaintiff, while simultane- ously allowing petitioner and the other employees to file their own complaint. Id.
, at 112. They did so, and the case proceeded on the basis of this new complaint.
The amended complaint claims that all “nonmember fee deductions are coerced political speech” and that “the
First Amendment forbids coercing any money from the nonmembers.” App. to Pet. for Cert. 23a. Respondents moved to dismiss the amended complaint, correctly recognizing that the claim it asserted was foreclosed by Abood
. The District Court granted the motion, id.
, at 7a, and the Court of Appeals for the Seventh Circuit affirmed, 851 F. 3d 746 (2017).
Janus then sought review in this Court, asking us to overrule Abood
and hold that public-sector agency-fee arrangements are unconstitutional. We granted certiorari to consider this important question. 582 U. S. ___ (2017).
Before reaching this question, however, we must con- sider a threshold issue. Respondents contend that the Dis- trict Court lacked jurisdiction under Article III of the Constitution because petitioner “moved to intervene in [the Governor’s] jurisdictionally defective lawsuit.” Union Brief in Opposition 11; see also id.
, at 13–17; State Brief in Opposition 6; Brief for Union Respondent i, 16–17; Brief for State Respondents 14, n. 1. This argument is clearly wrong.
It rests on the faulty premise that petitioner intervened in the action brought by the Governor, but that is not what happened. The District Court did not grant petitioner’s motion to intervene in that lawsuit. Instead, the court essentially treated petitioner’s amended complaint as the operative complaint in a new lawsuit. App. 110–112. And when the case is viewed in that way, any Article III issue vanishes. As the District Court recognized—and as respondents concede—petitioner was injured in fact by Illinois’ agency-fee scheme, and his injuries can be redressed by a favorable court decision. Ibid.
; see Record 2312–2313, 2322–2323. Therefore, he clearly has Article III standing. Lujan
v. Defenders of Wildlife
504 U. S. 555, 560–561 (1992). It is true that the District Court docketed petitioner’s complaint under the number originally assigned to the Governor’s complaint, instead of giving it a new number of its own. But Article III jurisdiction does not turn on such trivialities.
The sole decision on which respondents rely, United States ex rel. Texas Portland Cement Co.
233 U. S. 157 (1914), actually works against them. That case concerned a statute permitting creditors of a government contractor to bring suit on a bond between 6 and 12 months after the completion of the work. Id.
, at 162. One creditor filed suit before the 6-month starting date, but another intervened within the 6-to-12-month window. The Court held that the “[t]he intervention [did] not cure th[e] vice in the original [prematurely filed] suit,” but the Court also contemplated treating “intervention . . . as an original suit” in a case in which the intervenor met the requirements that a plaintiff must satisfy—e.g.
, filing a separate complaint and properly serving the defendants. Id.
, at 163–164. Because that is what petitioner did here, we may reach the merits of the question presented.
the Court upheld the constitutionality of an agency-shop arrangement like the one now before us, 431 U. S., at 232, but in more recent cases we have recognized that this holding is “something of an anomaly,” Knox
v. Service Employees
567 U. S. 298, 311 (2012), and that Abood
’s “analysis is questionable on several grounds,” Harris
, 573 U. S., at ___ (slip op., at 17); see id.
, at ___–___ (slip op., at 17–20) (discussing flaws in Abood
’s reasoning). We have therefore refused to extend Abood
to situations where it does not squarely control, see Harris
___–___ (slip op., at 27–29), while leaving for another day the question whether Abood
should be overruled, Harris
, at ___, n. 19 (slip op., at 27, n. 19); see Knox
, at 310–311.
We now address that question. We first consider whether Abood
’s holding is consistent with standard
First Amendment principles.
First Amendment, made applicable to the States by the
Fourteenth Amendment, forbids abridgment of the freedom of speech. We have held time and again that freedom of speech “includes both the right to speak freely and the right to refrain from speaking at all.” Wooley
430 U. S. 705, 714 (1977); see Riley
v. National Federation of Blind of N. C., Inc.
487 U. S. 781, 796–797 (1988); Harper & Row, Publishers, Inc.
v. Nation Enterprises
471 U. S. 539, 559 (1985); Miami Herald Publishing Co.
418 U. S. 241, 256–257 (1974); accord, Pacific Gas & Elec. Co.
v. Public Util. Comm’n of Cal.
475 U. S. 1, 9 (1986) (plurality opinion). The right to eschew association for expressive purposes is likewise protected. Roberts
v. United States Jaycees
468 U. S. 609, 623 (1984) (“Freedom of association . . . plainly presupposes a freedom not to associate”); see Pacific Gas & Elec.
, at 12 (“[F]orced associations that burden protected speech are impermissible”). As Justice Jackson memorably put it: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein
.” West Virginia Bd. of Ed.
319 U. S. 624, 642 (1943) (emphasis added).
Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned. Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues—say, the platform of one of the major political parties. No one, we trust, would seriously argue that the
First Amendment permits this.
Perhaps because such compulsion so plainly violates the Constitution, most of our free speech cases have involved restrictions on what can be said, rather than laws compelling speech. But measures compelling speech are at least as threatening.
Free speech serves many ends. It is essential to our democratic form of government, see, e.g.
379 U. S. 64, 74–75 (1964), and it furthers the search for truth, see, e.g.
310 U. S. 88, 95 (1940). Whenever the Federal Government or a State prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines these ends.
When speech is compelled, however, additional damage is done. In that situation, individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning, and for this reason, one of our landmark free speech cases said that a law commanding “involuntary affirmation” of objected-to beliefs would require “even more immediate and urgent grounds” than a law demanding silence. Barnette
, at 633; see also Riley
at 796–797 (rejecting “deferential test” for compelled speech claims).
Compelling a person to subsidize
the speech of other private speakers raises similar
First Amendment concerns. Knox
, at 309; United States
v. United Foods, Inc.
533 U. S. 405, 410 (2001); Abood
, at 222, 234–235. As Jefferson famously put it, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.” A Bill for Establishing Religious Freedom, in 2 Papers of Thomas Jefferson 545 (J. Boyd ed. 1950) (emphasis deleted and footnote omitted); see also Hudson
, 475 U. S., at 305, n. 15. We have therefore recognized that a “ ‘significant impingement on
First Amendment rights’ ” occurs when public employees are required to provide financial support for a union that “takes many positions during collective bargaining that have powerful political and civic consequences.” Knox
, at 310–311 (quoting Ellis
v. Railway Clerks
466 U. S. 435, 455 (1984)).
Because the compelled subsidization of private speech seriously impinges on
First Amendment rights, it cannot be casually allowed. Our free speech cases have identified “levels of scrutiny” to be applied in different contexts, and in three recent cases, we have considered the standard that should be used in judging the constitutionality of agency fees. See Knox
v. California Teachers Assn.
, 578 U. S. ___ (2016) (per cu- riam
) (affirming decision below by equally divided Court).
, the first of these cases, we found it sufficient to hold that the conduct in question was unconstitutional under even the test used for the compulsory subsidization of commercial speech. 567 U. S., at 309–310, 321–322. Even though commercial speech has been thought to enjoy a lesser degree of protection, see, e.g.
, Central Hudson Gas & Elec. Corp.
v. Public Serv. Comm’n of N. Y.
447 U. S. 557, 562–563 (1980), prior precedent in that area, specifically United Foods
, had applied what we characterized as “exacting” scrutiny, Knox
, 567 U. S., at 310, a less demanding test than the “strict” scrutiny that might be thought to apply outside the commercial sphere. Under “exacting” scrutiny, we noted, a compelled subsidy must “serve a compelling state interest that cannot be achieved through means significantly less restrictive of associa- tional freedoms.” Ibid.
(internal quotation marks and altera- tions omitted).
, the second of these cases, we again found that an agency-fee requirement failed “exacting scrutiny.” 573 U. S., at ___ (slip op., at 33). But we questioned whether that test provides sufficient protection for free speech rights, since “it is apparent that the speech compelled” in agency-fee cases “is not commercial speech.” Id.
, at ___ (slip op., at 30).
Picking up that cue, petitioner in the present case contends that the Illinois law at issue should be subjected to “strict scrutiny.” Brief for Petitioner 36. The dissent, on the other hand, proposes that we apply what amounts to rational-basis review, that is, that we ask only whether a government employer could reasonably believe that the exaction of agency fees serves its interests. See post
, at 4 (Kagan, J., dissenting) (“A government entity could reasonably conclude that such a clause was needed”). This form of minimal scrutiny is foreign to our free-speech jurisprudence, and we reject it here. At the same time, we again find it unnecessary to decide the issue of strict scrutiny because the Illinois scheme cannot survive under even the more permissive standard applied in Knox
In the remainder of this part of our opinion (Parts III–B and III–C), we will apply this standard to the justifications for agency fees adopted by the Court in Abood
. Then, in Parts IV and V, we will turn to alternative rationales proffered by respondents and their amici
, the main defense of the agency-fee arrangement was that it served the State’s interest in “labor peace,” 431 U. S., at 224. By “labor peace,” the Abood
Court meant avoidance of the conflict and disruption that it envisioned would occur if the employees in a unit were represented by more than one union. In such a situation, the Court predicted, “inter-union rivalries” would foster “dissension within the work force,” and the employer could face “conflicting demands from different unions.” Id.
, at 220–221. Confusion would ensue if the employer entered into and attempted to “enforce two or more agreements specifying different terms and conditions of employment.” Id.
, at 220. And a settlement with one union would be “subject to attack from [a] rival labor organizatio[n].” Id.
, at 221.
We assume that “labor peace,” in this sense of the term, is a compelling state interest, but Abood
cited no evidence that the pandemonium it imagined would result if agency fees were not allowed, and it is now clear that Abood
’s fears were unfounded. The Abood
Court assumed that designation of a union as the exclusive representative of all the employees in a unit and the exaction of agency fees are inextricably linked, but that is simply not true. Harris
, at ___ (slip op., at 31).
The federal employment experience is illustrative. Under federal law, a union chosen by majority vote is designated as the exclusive representative of all the employees, but federal law does not permit agency fees. See 5 U. S. C. §§7102, 7111(a), 7114(a). Nevertheless, nearly a million federal employees—about 27% of the federal work force—are union members.[1
] The situation in the Postal Service is similar. Although permitted to choose an exclusive representative, Postal Service employees are not required to pay an agency fee, 39 U. S. C. §§1203(a), 1209(c), and about 400,000 are union members.[2
] Likewise, millions of public employees in the 28 States that have laws generally prohibiting agency fees are represented by unions that serve as the exclusive representatives of all the employees.[3
] Whatever may have been the case 41 years ago when Abood
was handed down, it is now undeniable that “labor peace” can readily be achieved “through means significantly less restrictive of associational freedoms” than the assessment of agency fees. Harris
, at ___ (slip op., at 30) (internal quotation marks omitted).
In addition to the promotion of “labor peace,” Abood
cited “the risk of ‘free riders’ ” as justification for agency fees, 431 U. S., at 224. Respondents and some of their amici
endorse this reasoning, contending that agency fees are needed to prevent nonmembers from enjoying the benefits of union representation without shouldering the costs. Brief for Union Respondent 34–36; Brief for State Respondents 41–45; see, e.g.
Brief for International Brotherhood of Teamsters as Amicus Curiae
Petitioner strenuously objects to this free-rider label. He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage.
Whichever description fits the majority of public employees who would not subsidize a union if given the option, avoiding free riders is not a compelling interest. As we have noted, “free-rider arguments . . . are generally insufficient to overcome
First Amendment objections.” Knox
, 567 U. S., at 311. To hold otherwise across the board would have startling consequences. Many private groups speak out with the objective of obtaining government action that will have the effect of benefiting nonmembers. May all those who are thought to benefit from such efforts be compelled to subsidize this speech?
Suppose that a particular group lobbies or speaks out on behalf of what it thinks are the needs of senior citizens or veterans or physicians, to take just a few examples. Could the government require that all seniors, veterans, or doctors pay for that service even if they object? It has never been thought that this is permissible. “[P]rivate speech often furthers the interests of nonspeakers,” but “that does not alone empower the state to compel the speech to be paid for.” Lehnert
v. Ferris Faculty Assn.
500 U. S. 507, 556 (1991) (Scalia, J., concurring in judgment in part and dissenting in part). In simple terms, the
First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.[4
Those supporting agency fees contend that the situation here is different because unions are statutorily required to “represen[t] the interests of all public employees in the unit,” whether or not they are union members. §315/6(d); see, e.g.
, Brief for State Respondents 40–41, 45; post
, at 7 (Kagan, J., dissenting). Why might this matter?
We can think of two possible arguments. It might be argued that a State has a compelling interest in requiring the payment of agency fees because (1) unions would otherwise be unwilling to represent nonmembers or (2) it would be fundamentally unfair to require unions to provide fair representation for nonmembers if nonmembers were not required to pay. Neither of these arguments is sound.
First, it is simply not true that unions will refuse to serve as the exclusive representative of all employees in the unit if they are not given agency fees. As noted, unions represent millions of public employees in jurisdictions that do not permit agency fees. No union is ever compelled to seek that designation. On the contrary, designation as exclusive representative is avidly sought.[5
] Why is this so?
Even without agency fees, designation as the exclusive representative confers many benefits. As noted, that status gives the union a privileged place in negotiations over wages, benefits, and working conditions. See §315/6(c). Not only is the union given the exclusive right to speak for all the employees in collective bargaining, but the employer is required by state law to listen to and to bargain in good faith with only that union. §315/7. Designation as exclusive representative thus “results in a tremendous increase in the power” of the union. American Communications Assn.
339 U. S. 382, 401 (1950).
In addition, a union designated as exclusive representative is often granted special privileges, such as obtaining information about employees, see §315/6(c), and having dues and fees deducted directly from employee wages, §§315/6(e)–(f ). The collective-bargaining agreement in this case guarantees a long list of additional privileges. See App. 138–143.
These benefits greatly outweigh any extra burden imposed by the duty of providing fair representation for nonmembers. What this duty entails, in simple terms, is an obligation not to “act solely in the interests of [the union’s] own members.” Brief for State Respondents 41; see Cintron
v. AFSCME, Council 31
, No. S–CB–16–032, p. 1, 34 PERI ¶105 (ILRB Dec. 13, 2017) (union may not intentionally direct “animosity” toward nonmembers based on their “dissident union practices”); accord, 14 Penn Plaza LLC
556 U. S. 247, 271 (2009); Vaca
386 U. S. 171, 177 (1967).
What does this mean when it comes to the negotiation of a contract? The union may not negotiate a collective-bargaining agreement that discriminates against nonmembers, see Steele
v. Louisville & Nashville R. Co.
323 U. S. 192, 202–203 (1944), but the union’s bargaining latitude would be little different if state law simply prohibited public employers from entering into agreements that discriminate in that way. And for that matter, it is questionable whether the Constitution would permit a public-sector employer to adopt a collective-bargaining agreement that discriminates against nonmembers. See id.
, at 198–199, 202 (analogizing a private-sector union’s fair-representation duty to the duty “the Constitution imposes upon a legislature to give equal protection to the interests of those for whom it legislates”); cf. Rumsfeld
v. Forum for Academic and Institutional Rights, Inc.
547 U. S. 47, 69 (2006) (recognizing that government may not “impose penalties or withhold benefits based on membership in a disfavored group” where doing so “ma[kes] group membership less attractive”). To the extent that an employer would be barred from acceding to a discriminatory agreement anyway, the union’s duty not to ask for one is superfluous. It is noteworthy that neither respondents nor any of the 39 amicus
briefs supporting them—nor the dissent—has explained why the duty of fair representation causes public-sector unions to incur significantly greater expenses than they would otherwise bear in negotiating collective-bargaining agreements.
What about the representation of nonmembers in grievance proceedings? Unions do not undertake this activity solely for the benefit of nonmembers—which is why Illinois law gives a public-sector union the right to send a representative to such proceedings even if the employee declines union representation. §315/6(b). Representation of nonmembers furthers the union’s interest in keeping control of the administration of the collective-bargaining agreement, since the resolution of one employee’s grievance can affect others. And when a union controls the grievance process, it may, as a practical matter, effectively subordinate “the interests of [an] individual em- ployee . . . to the collective interests of all employees in the bargaining unit.” Alexander
v. Gardner-Denver Co.
415 U.S. 36
, 58, n. 19 (1974); see Stahulak
, 184 Ill. 2d 176, 180–181, 703 N. E. 2d 44, 46–47 (1998); Mahoney
, 293 Ill. App. 3d 69, 73–74, 687 N.E.2d 132, 135–137 (1997) (union has “ ‘discretion to refuse to process’ ” a grievance, provided it does not act “arbitrar[ily]” or “in bad faith” (emphasis deleted)).
In any event, whatever unwanted burden is imposed by the representation of nonmembers in disciplinary matters can be eliminated “through means significantly less restrictive of associational freedoms” than the imposition of agency fees. Harris
, 573 U. S., at ___ (slip op., at 30) (internal quotation marks omitted). Individual nonmembers could be required to pay for that service or could be denied union representation altogether.[6
] Thus, agency fees cannot be sustained on the ground that unions would otherwise be unwilling to represent nonmembers.
Nor can such fees be justified on the ground that it would otherwise be unfair to require a union to bear the duty of fair representation. That duty is a necessary concomitant of the authority that a union seeks when it chooses to serve as the exclusive representative of all the employees in a unit. As explained, designating a union as the exclusive representative of nonmembers substantially restricts the nonmembers’ rights. Supra
, at 2–3. Protection of their interests is placed in the hands of the union, and if the union were free to disregard or even work against those interests, these employees would be wholly unprotected. That is why we said many years ago that serious “constitutional questions [would] arise” if the union were not
subject to the duty to represent all employees fairly. Steele
, at 198.
In sum, we do not see any reason to treat the free-rider interest any differently in the agency-fee context than in any other
First Amendment context. See Knox
, 567 U. S., at 311, 321. We therefore hold that agency fees cannot be upheld on free-rider grounds.
Implicitly acknowledging the weakness of Abood
’s own reasoning, proponents of agency fees have come forward with alternative justifications for the decision, and we now address these arguments.
The most surprising of these new arguments is the Union respondent’s originalist defense of Abood
. According to this argument, Abood
was correctly decided because the
First Amendment was not originally understood to provide any
protection for the free speech rights of public employees. Brief for Union Respondent 2–3, 17–20.
As an initial matter, we doubt that the Union—or its members—actually want us to hold that public employees have “no
[free speech] rights.” Id.
, at 1. Cf., e.g.
Brief for National Treasury Employees Union as Amicus Curiae
, O. T. 2005, No. 04–473, p. 7 (arguing for “broa[d]” public-employee
First Amendment rights); Brief for AFL–CIO as Amicus Curiae
in No. 04–473 (similar).
It is particularly discordant to find this argument in a brief that trumpets the importance of stare decisis
. See Brief for Union Respondent 47–57. Taking away free speech protection for public employees would mean overturning decades of landmark precedent. Under the Union’s theory, Pickering
v. Board of Ed. of Township High School Dist. 205, Will Cty.
391 U. S. 563 (1968), and its progeny would fall. Yet Pickering
, as we will discuss, is now the foundation for respondents’ chief defense of Abood
. And indeed, Abood
itself would have to go if public employees have no free speech rights, since Abood
holds that the
First Amendment prohibits the exaction of agency fees for political or ideological purposes. 431 U. S., at 234–235 (finding it “clear” that “a government may not require an individual to relinquish rights guaranteed him by the
First Amendment as a condition of public employment”). Our political patronage cases would be doomed. See, e.g.
v. Republican Party of Ill.
497 U. S. 62 (1990); Branti
445 U. S. 507 (1980); Elrod
427 U. S. 347 (1976). Also imperiled would be older precedents like Wieman
344 U. S. 183 (1952) (loyalty oaths), Shelton
364 U. S. 479 (1960) (disclosure of memberships and contributions), and Keyishian
v. Board of Regents of Univ. of State of N. Y.
385 U. S. 589 (1967) (subversive speech). Respondents presumably want none of this, desiring instead that we apply the Constitution’s supposed original meaning only when it suits them—to retain the part of Abood
that they like. See Tr. of Oral Arg. 56–57. We will not engage in this halfway originalism.
Nor, in any event, does the
First Amendment’s original meaning support the Union’s claim. The Union offers no persuasive founding-era evidence that public employees were understood to lack free speech protections. While it observes that restrictions on federal employees’ activities have existed since the First Congress, most of its historical examples involved limitations on public officials’ outside business dealings, not on their speech. See Ex parte Curtis
106 U. S. 371, 372–373 (1882). The only early speech
restrictions the Union identifies are an 1806 statute prohibiting military
personnel from using “ ‘contemptuous or disrespectful words against the President’ ” and other officials, and an 1801 directive limiting electioneering by top government employees. Brief for Union Respondent 3. But those examples at most show that the government was understood to have power to limit employee speech that threatened important governmental interests (such as maintaining military discipline and preventing corruption)—not that public employees’ speech was entirely unprotected. Indeed, more recently this Court has upheld similar restrictions even while recognizing that government employees possess
First Amendment rights. See, e.g.
444 U. S. 348, 353 (1980) (upholding military restriction on speech that threatened troop readiness); Civil Service Comm’n
v. Letter Carriers
413 U. S. 548, 556–557 (1973) (upholding limits on public employees’ political activities).
Ultimately, the Union relies, not on founding-era evidence, but on dictum from a 1983 opinion of this Court stating that, “[f]or most of th[e 20th] century, the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment—including those which restricted the exercise of constitutional rights.” Connick
461 U. S. 138, 143; see Brief for Union Respondent 2, 17. Even on its own terms, this dictum about 20th-century views does not purport to describe how the
First Amendment was understood in 1791. And a careful examination of the decisions by this Court that Connick
cited to support its dictum, see 461 U. S., at 144, reveals that none of them rested on the facile premise that public employees are unprotected by the
First Amendment. Instead, they considered (much as we do today) whether particular speech restrictions were “necessary to protect” fundamental government interests. Curtis
, at 374.
The Union has also failed to show that, even if public employees enjoyed free speech rights, the
First Amendment was nonetheless originally understood to allow forced subsidies like those at issue here. We can safely say that, at the time of the adoption of the
First Amendment, no one gave any thought to whether public-sector unions could charge nonmembers agency fees. Entities resembling labor unions did not exist at the founding, and public-sector unions did not emerge until the mid-20th century. The idea of public-sector unionization and agency fees would astound those who framed and ratified the Bill of Rights.[7
] Thus, the Union cannot point to any accepted founding-era practice that even remotely resembles the compulsory assessment of agency fees from public-sector employees. We do know, however, that prominent members of the founding generation condemned laws requiring public employees to affirm or support beliefs with which they disagreed. As noted, Jefferson denounced compelled support for such beliefs as “ ‘sinful and tyrannical,’ ” supra
, at 9, and others expressed similar views.[8
In short, the Union has offered no basis for concluding that Abood
is supported by the original understanding of the
The principal defense of Abood
advanced by respondents and the dissent is based on our decision in Pickering
391 U. S. 563, which held that a school district violated the
First Amendment by firing a teacher for writing a letter critical of the school administration. Under Pickering
and later cases in the same line, employee speech is largely unprotected if it is part of what the employee is paid to do, see Garcetti
547 U. S. 410, 421–422 (2006), or if it involved a matter of only private concern, see Connick
, at 146–149. On the other hand, when a public employee speaks as a citizen on a matter of public concern, the employee’s speech is protected unless “ ‘the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees’ outweighs ‘the interests of the [employee], as a citizen, in commenting upon matters of public concern.’ ” Harris
, 573 U. S., at ___ (slip op., at 35) (quoting Pickering
, at 568). Pickering
was the centerpiece of the defense of Abood
, see 573 U. S., at ___–___
(slip op., at 17–21) (Kagan, J., dissenting), and we found the argument unpersuasive, see id.
, at ___–___ (slip op., at 34–37). The intervening years have not improved its appeal.
As we pointed out in Harris
was not based on Pickering
. 573 U. S., at ___, and n. 26 (slip op., at 34, and n. 26). The Abood
majority cited the case exactly once—in a footnote—and then merely to acknowledge that “there may be limits on the extent to which an employee in a sensitive or policymaking position may freely criticize his superiors and the policies they espouse.” 431 U. S., at 230, n. 27. That aside has no bearing on the agency-fee issue here.[9
Respondents’ reliance on Pickering
is thus “an effort to find a new justification for the decision in Abood
, at ___ (slip op., at 34). And we have previously taken a dim view of similar attempts to recast problematic
First Amendment decisions. See, e.g.
, Citizens United
v. Federal Election Comm’n
558 U. S. 310, 348–349, 363 (2010) (rejecting efforts to recast Austin
v. Michigan Chamber of Commerce
494 U. S. 652 (1990)); see also Citizens United
, at 382–385 (Roberts, C. J., concurring). We see no good reason, at this late date, to try to shoehorn Abood
into the Pickering
Even if that were attempted, the shoe would be a painful fit for at least three reasons.
First, the Pickering
framework was developed for use in a very different context—in cases that involve “one employee’s speech and its impact on that employee’s public responsibilities.” United States
v. Treasury Employees
513 U. S. 454, 467 (1995). This case, by contrast, involves a blanket requirement that all employees subsidize speech with which they may not agree. While we have sometimes looked to Pickering
general rules that affect broad categories of employees, we have acknowledged that the standard Pickering
analysis requires modification in that situation. See 513 U. S., at 466–468, and n. 11. A speech-restrictive law with “widespread impact,” we have said, “gives rise to far more serious concerns than could any single supervisory decision.” Id.
, at 468. Therefore, when such a law is at issue, the government must shoulder a correspondingly “heav[ier]” burden, id.
, at 466, and is entitled to considerably less deference in its assessment that a predicted harm justifies a particular impingement on
First Amendment rights, see id.
, at 475–476, n. 21; accord, id.
, at 482–483 (O’Connor, J., concurring in judgment in part and dissenting in part). The end product of those adjustments is a test that more closely resembles exacting scrutiny than the traditional Pickering
The core collective-bargaining issue of wages and benefits illustrates this point. Suppose that a single employee complains that he or she should have received a 5% raise. This individual complaint would likely constitute a matter of only private concern and would therefore be unprotected under Pickering
. But a public-sector union’s demand for a 5% raise for the many thousands of employees it represents would be another matter entirely. Granting such a raise could have a serious impact on the budget of the government unit in question, and by the same token, denying a raise might have a significant effect on the performance of government services. When a large number of employees speak through their union, the category of speech that is of public concern is greatly enlarged, and the category of speech that is of only private concern is substantially shrunk. By disputing this, post
, at 13–14, the dissent denies the obvious.
Second, the Pickering
framework fits much less well where the government compels speech or speech subsidies in support of third parties. Pickering
is based on the insight that the speech of a public-sector employee may interfere with the effective operation of a government office. When a public employer does not simply restrict potentially disruptive speech but commands that its employees mouth a message on its own behalf, the calculus is very different. Of course, if the speech in question is part of an employee’s official duties, the employer may insist that the employee deliver any lawful message. See Garcetti
, 547 U. S., at 421–422, 425–426. Otherwise, however, it is not easy to imagine a situation in which a public employer has a legitimate need to demand that its employees recite words with which they disagree. And we have never applied Pickering
in such a case.
Consider our decision in Connick
. In that case, we held that an assistant district attorney’s complaints about the supervisors in her office were, for the most part, matters of only private concern. 461 U. S., at 148. As a result, we held, the district attorney could fire her for making those comments. Id.
, at 154. Now, suppose that the assistant had not made any critical comments about the supervisors but that the district attorney, out of the blue, demanded that she circulate a memo praising the supervisors. Would her refusal to go along still be a matter of purely private concern? And if not, would the order be justified on the ground that the effective operation of the office demanded that the assistant voice complimentary sentiments with which she disagreed? If Pickering
applies at all to compelled speech—a question that we do not decide—it would certainly require adjustment in that context.
Third, although both Pickering
divided speech into two categories, the cases’ categorization schemes do not line up. Superimposing the Pickering
scheme on Abood
would significantly change the Abood
Let us first look at speech that is not germane to collective bargaining but instead concerns political or ideological issues. Under Abood
, a public employer is flatly prohibited from permitting nonmembers to be charged for this speech, but under Pickering
, the employees’ free speech interests could be overcome if a court found that the employer’s interests outweighed the employees’.
A similar problem arises with respect to speech that is
germane to collective bargaining. The parties dispute how much of this speech is of public concern, but respondents concede that much of it falls squarely into that category. See Tr. of Oral Arg. 47, 65. Under Abood
, nonmembers may be required to pay for all this speech, but Pickering
would permit that practice only if the employer’s interests outweighed those of the employees. Thus, recasting Abood
as an application of Pickering
would substantially alter the Abood
For all these reasons, Pickering
is a poor fit indeed.
Even if we were to apply some form of Pickering
, Illinois’ agency-fee arrangement would not survive.
Respondents begin by suggesting that union speech in collective-bargaining and grievance proceedings should be treated like the employee speech in Garcetti
, as speech “pursuant to [an employee’s] official duties,” 547 U. S., at 421. Many employees, in both the public and private sectors, are paid to write or speak for the purpose of furthering the interests of their employers. There are laws that protect public employees from being compelled to say things that they reasonably believe to be untrue or improper, see id.
, at 425–426, but in general when public employees are performing their job duties, their speech may be controlled by their employer. Trying to fit union speech into this framework, respondents now suggest that the union speech funded by agency fees forms part of the official duties of the union officers who engage in the speech. Brief for Union Respondent 22–23; see Brief for State Respondents 23–24.
This argument distorts collective bargaining and grievance adjustment beyond recognition. When an employee engages in speech that is part of the employee’s job duties, the employee’s words are really the words of the employer. The employee is effectively the employer’s spokesperson. But when a union negotiates with the employer or represents employees in disciplinary proceedings, the union speaks for the employees
, not the employer. Otherwise, the employer would be negotiating with itself and disputing its own actions. That is not what anybody understands to be happening.
What is more, if the union’s speech is really the employer’s speech, then the employer could dictate what the union says. Unions, we trust, would be appalled by such a suggestion. For these reasons, Garcetti
is totally inapposite here.
Since the union speech paid for by agency fees is not controlled by Garcetti
, we move on to the next step of the Pickering
framework and ask whether the speech is on a matter of public or only private concern. In Harris
, the dissent’s central argument in defense of Abood
was that union speech in collective bargaining, including speech about wages and benefits, is basically a matter of only private interest. See 573 U. S., at ___–___ (slip op., at 19–20) (Kagan, J., dissenting). We squarely rejected that argument, see id.
, at ___–___
(slip op., at 35–36), and the facts of the present case substantiate what we said at that time: “[I]t is impossible to argue that the level of . . . state spending for employee benefits . . . is not a matter of great public concern,” id.
___ (slip op., at 36).
Illinois, like some other States and a number of counties and cities around the country, suffers from severe budget problems.[10
] As of 2013, Illinois had nearly $160 billion in unfunded pension and retiree healthcare liabilities.[11
] By 2017, that number had only grown, and the State was grappling with $15 billion in unpaid bills.[12
] We are told that a “quarter of the budget is now devoted to paying down” those liabilities.[13
] These problems and others led Moody’s and S&P to downgrade Illinois’ credit rating to “one step above junk”—the “lowest ranking on record for a U. S. state.”[14
The Governor, on one side, and public-sector unions, on the other, disagree sharply about what to do about these problems. The State claims that its employment-related debt is “ ‘squeezing core programs in education, public safety, and human services, in addition to limiting [the State’s] ability to pay [its] bills.’ ” Securities Act of 1933 Release No. 9389, 105 S. E. C. Docket 3381 (2013). It therefore “told the Union that it would attempt to address th[e financial] crisis, at least in part, through collective bargaining.” Board Decision 12–13. And “the State’s desire for savings” in fact “dr[o]ve [its] bargaining” positions on matters such as health-insurance benefits and holiday, overtime, and promotion policies. Id.
, at 13; Illinois Dept. of Central Management Servs.
v. AFSCME, Council 31
, No. S–CB–16–17 etc., 33 PERI ¶67 (ILRB Dec. 13, 2016) (ALJ Decision), pp. 26–28, 63–66, 224. But when the State offered cost-saving proposals on these issues, the Union countered with very different suggestions. Among other things, it advocated wage and tax increases, cutting spending “to Wall Street financial institutions,” and reforms to Illinois’ pension and tax systems (such as closing “corporate tax loopholes,” “[e]xpanding the base of the state sales tax,” and “allowing an income tax that is adjusted in accordance with ability to pay”). Id.
, at 27–28. To suggest that speech on such matters is not of great public concern—or that it is not directed at the “public square,” post
, at 16 (Kagan, J., dissenting)—is to deny reality.
In addition to affecting how public money is spent, union speech in collective bargaining addresses many other important matters. As the examples offered by respondents’ own amici
show, unions express views on a wide range of subjects—education, child welfare, healthcare, and minority rights, to name a few. See, e.g.
, Brief for American Federation of Teachers as Amicus Curiae
15–27; Brief for Child Protective Service Workers et al. as Amici Curiae
5–13; Brief for Human Rights Campaign et al. as Amici Curiae
10–17; Brief for National Women’s Law Center et al. as Amici Curiae
14–30. What unions have to say on these matters in the context of collective bargaining is of great public importance.
Take the example of education, which was the focus of briefing and argument in Friedrichs
. The public importance of subsidized union speech is especially apparent in this field, since educators make up by far the largest category of state and local government employees, and education is typically the largest component of state and local government expenditures.[15
Speech in this area also touches on fundamental questions of education policy. Should teacher pay be based on seniority, the better to retain experienced teachers? Or should schools adopt merit-pay systems to encourage teachers to get the best results out of their students?[16
] Should districts transfer more experienced teachers to the lower performing schools that may have the greatest need for their skills, or should those teachers be allowed to stay where they have put down roots?[17
] Should teachers be given tenure protection and, if so, under what conditions? On what grounds and pursuant to what procedures should teachers be subject to discipline or dismissal? How should teacher performance and student progress be measured—by standardized tests or other means?
Unions can also speak out in collective bargaining on controversial subjects such as climate change,[18
] the Confederacy,[19
] sexual orientation and gender identity,[20
] and minority religions.[22
] These are sensitive political topics, and they are undoubtedly matters of profound “ ‘value and concern to the public.’ ” Snyder
562 U. S. 443, 453 (2011). We have often recognized that such speech “ ‘occupies the highest rung of the hierarchy of
First Amendment values’ ” and merits “ ‘special protection.’ ” Id.
, at 452.
What does the dissent say about the prevalence of such issues? The most that it is willing to admit is that “some” issues that arise in collective bargaining “raise important non-budgetary disputes.” Post
, at 17. Here again, the dissent refuses to recognize what actually occurs in public-sector collective bargaining.
Even union speech in the handling of grievances may be of substantial public importance and may be directed at the “public square.” Post
, at 16. For instance, the Union respondent in this case recently filed a grievance seeking to compel Illinois to appropriate $75 million to fund a 2% wage increase. State
v. AFSCME Council 31
, 2016 IL 118422, 51 N. E. 3d 738, 740–742, and n. 4. In short, the union speech at issue in this case is overwhelmingly of substantial public concern.
The only remaining question under Pickering
the State’s proffered interests justify the heavy burden that agency fees inflict on nonmembers’
First Amendment interests. We have already addressed the state interests asserted in Abood
—promoting “labor peace” and avoiding free riders, see supra
, at 11–18—and we will not repeat that analysis.
and this case, defenders of Abood
have as- serted a different state interest—in the words of the Harris
dissent, the State’s “interest in bargaining with an adequately funded exclusive bargaining agent.” 573 U. S., at ___
(Kagan, J., dissenting) (slip op., at 7); see also post
, at 6–7 (Kagan, J., dissenting). This was not “the interest Abood
recognized and protected,” Harris
, at ___ (slip op., at 7) (Kagan, J., dissenting), and, in any event, it is insufficient.
Although the dissent would accept without any serious independent evaluation the State’s assertion that the absence of agency fees would cripple public-sector unions and thus impair the efficiency of government operations, see post
, at 8–9, 11, ample experience, as we have noted, supra
, at 12, shows that this is questionable.
Especially in light of the more rigorous form of Pickering
analysis that would apply in this context, see supra
, at 23–25, the balance tips decisively in favor of the employees’ free speech rights.[23
We readily acknowledge, as Pickering
did, that “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” 391 U. S., at 568. Our analysis is consistent with that principle. The exacting scrutiny standard we apply in this case was developed in the context of commercial speech, another area where the government has traditionally enjoyed greater-than-usual power to regulate speech. See supra
, at 10. It is also not disputed that the State may require that a union serve as exclusive bargaining agent for its employees—itself a significant impingement on associational freedoms that would not be tolerated in other contexts. We simply draw the line at allowing the government to go further still and require all employees to support the union irrespective of whether they share its views. Nothing in the Pickering
line of cases requires us to uphold every speech restriction the government imposes as an employer. See Pickering
, at 564–566 (holding teacher’s dismissal for criticizing school board unconstitutional); Rankin
483 U. S. 378, 392 (1987) (holding clerical employ- ee’s dismissal for supporting assassination attempt on President unconstitutional); Treasury Employees
, 513 U. S., at 477 (holding federal-employee honoraria ban unconstitutional).
For the reasons given above, we conclude that public-sector agency-shop arrangements violate the
First Amendment, and Abood
erred in concluding otherwise. There remains the question whether stare decisis
nonetheless counsels against overruling Abood
. It does not.
is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne
501 U. S. 808, 827 (1991). We will not overturn a past decision unless there are strong grounds for doing so. United States
v. International Business Machines Corp.
517 U. S. 843, 855–856 (1996); Citizens United
, 558 U. S., at 377 (Roberts, C. J., concurring). But as we have often recognized, stare decisis
is “ ‘not an inexorable command.’ ” Pearson
555 U. S. 223, 233 (2009); see also Lawrence
539 U. S. 558, 577 (2003); State Oil Co.
522 U. S. 3, 20 (1997); Agostini
521 U. S. 203, 235 (1997); Seminole Tribe of Fla.
517 U. S. 44, 63 (1996); Payne
, at 828.
The doctrine “is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.” Agostini
, at 235. And stare decisis
applies with perhaps least force of all to decisions that wrongly denied
First Amendment rights: “This Court has not hesitated to overrule decisions offensive to the
First Amendment (a fixed star in our constitutional constellation, if there is one).” Federal Election Comm’n
v. Wisconsin Right to Life, Inc.
551 U. S. 449, 500 (2007) (Scalia, J., concurring in part and concurring in judgment) (internal quotation marks omitted); see also Citizens United
, at 362–365 (overruling Austin
494 U. S. 652); Barnette
, 319 U. S., at 642 (overruling Minersville School Dist.
310 U. S. 586 (1940)).
Our cases identify factors that should be taken into account in deciding whether to overrule a past decision. Five of these are most important here: the quality of Abood
’s reasoning, the workability of the rule it established, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision. After analyzing these factors, we conclude that stare decisis
does not require us to retain Abood
An important factor in determining whether a precedent should be overruled is the quality of its reasoning, see Citizens United
, 558 U. S., at 363–364; id.
, at 382–385 (Roberts, C. J., concurring); Lawrence
, 539 U. S., at 577–578, and as we explained in Harris
was poorly reasoned, see 573 U. S., at ___–___ (slip op., at 17–20). We will summarize, but not repeat, Harris
’s lengthy discussion of the issue.
went wrong at the start when it concluded that two prior decisions, Railway Employes
351 U. S. 225 (1956), and Machinists
367 U. S. 740 (1961), “appear[ed] to require validation of the agency-shop agreement before [the Court].” 431 U. S., at 226. Properly understood, those decisions did no such thing. Both cases
involved Congress’s “bare authorization
” of private-sector
union shops under the Railway Labor Act. Street
, at 749 (emphasis added).[24
failed to appreciate that a very different
First Amendment question arises when a State requires
its employees to pay agency fees. See Harris
, at ___ (slip op., at 17).
Moreover, neither Hanson
gave careful consideration to the
First Amendment. In Hanson
the primary questions were whether Congress exceeded its power under the Commerce Clause or violated substantive due process by authorizing private union-shop arrangements under the Commerce and Due Process Clauses. 351 U. S., at 233–235. After deciding those questions, the Court summarily dismissed what was essentially a facial
First Amendment challenge, noting that the record did not substantiate the challengers’ claim. Id.
, at 238; see Harris
, at ___ (slip op., at 17). For its part, Street
was decided as a matter of statutory construction, and so did not reach any constitutional issue. 367 U. S., at 749–750, 768–769. Abood
nevertheless took the view that Hanson
“all but decided” the important free speech issue that was before the Court. Harris
, 573 U. S., at ___ (slip op., at 17). As we said in Harris
, “[s]urely a
First Amendment issue of this importance deserved better treatment.” Ibid.
’s unwarranted reliance on Hanson
appears to have contributed to another mistake: Abood
judged the constitutionality of public-sector agency fees under a deferential standard that finds no support in our free speech cases. (As noted, supra
, at 10–11, today’s dissent makes the same fundamental mistake.) Abood
did not independently evaluate the strength of the government interests that were said to support the challenged agency-fee provision; nor did it ask how well that provision actually promoted those interests or whether they could have been adequately served without impinging so heavily on the free speech rights of nonmembers. Rather, Abood
, which it interpreted
as having deferred to “the legislative assessment
of the important contribution of the union shop to the system of labor relations established by Congress.” 431 U. S., at 222 (emphasis added). But Hanson
deferred to that judgment in deciding the Commerce Clause and substantive due process questions that were the focus of the case. Such deference to legislative judgments is inappropriate in deciding free speech issues.
had considered whether agency fees were actually needed to serve the asserted state interests, it might not have made the serious mistake of assuming that one of those interests—“labor peace”—demanded, not only that a single union be designated as the exclusive representative of all the employees in the relevant unit, but also that nonmembers be required to pay agency fees. Deferring to a perceived legislative judgment, Abood
failed to see that the designation of a union as exclusive representative and the imposition of agency fees are not inextricably linked. See supra
, at 11–12; Harris
, at ___ (slip op., at 31).
also did not sufficiently take into account the difference between the effects of agency fees in public- and private-sector collective bargaining. The challengers in Abood
argued that collective bargaining with a government employer, unlike collective bargaining in the private sector, involves “inherently ‘political’ ” speech. 431 U. S., at 226. The Court did not dispute that characterization, and in fact conceded that “decisionmaking by a public employer is above all a political process” driven more by policy concerns than economic ones. Id.
, at 228; see id.
, at 228–231. But (again invoking Hanson
), the Abood
Court asserted that public employees do not have “weightier
First Amendment interest[s]” against compelled speech than do private employees. Id.
, at 229. That missed the point. Assuming for the sake of argument that the
First Amendment applies at all to private-sector agency-shop arrangements, the individual interests at stake still differ. “In the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector.” Harris
, 573 U. S., at ___ (slip op., at 17).
Overlooking the importance of this distinction, “Abood
failed to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends.” Id.
, at ___ (slip op., at 18). Likewise, “Abood
does not seem to have anticipated the magnitude of the practical administrative problems that would result in attempting to classify public-sector union expenditures as either ‘chargeable’ . . . or nonchargeable.” Ibid.
Nor did Abood
“foresee the practical problems that would face objecting nonmembers.” Id.
, at ___ (slip op., at 19).
In sum, as detailed in Harris
was not well reasoned.[25
Another relevant consideration in the stare decisis
calculus is the workability of the precedent in question, Montejo
556 U. S. 778, 792 (2009), and that factor also weighs against Abood
’s line between chargeable and nonchargeable union expenditures has proved to be impossible to draw with precision. We tried to give the line some definition in Lehnert
. There, a majority of the Court adopted a three-part test requiring that chargeable expenses (1) be “ ‘germane’ ” to collective bargaining, (2) be “justified” by the government’s labor-peace and free-rider interests, and (3) not add “significantly” to the burden on free speech, 500 U. S., at 519, but the Court splintered over the application of this test, see id.
, at 519–522 (plurality opinion); id.
, at 533–534 (Marshall, J., concurring in part and dissenting in part). That division was not surprising. As the Lehnert
dissenters aptly observed, each part of the majority’s test “involves a substantial judgment call,” id.
, at 551 (opinion of Scalia, J.), rendering the test “altogether malleable” and “no[t] principled,” id.
, at 563 (Kennedy, J., concurring in judgment in part and dissenting in part).
Justice Scalia presciently warned that Lehnert
’s amorphous standard
would invite “perpetua[l] give-it-a-try litigation,” id.
, at 551, and the Court’s experience with union lobbying expenses illustrates the point. The Lehnert
plurality held that money spent on lobbying for increased education funding was not chargeable. Id.
, at 519–522. But Justice Marshall—applying the same three-prong test—reached precisely the opposite conclusion. Id.
, at 533–542. And Lehnert
failed to settle the matter; States and unions have continued to “give it a try” ever since.
, for example, we confronted a union’s claim that the costs of lobbying the legislature and the electorate about a ballot measure were chargeable expenses under Lehnert
. See Brief for Respondent in Knox
v. Service Employees
, O. T. 2011, No. 10–1121, pp. 48–53. The Court rejected this claim out of hand, 567 U. S., at 320–321, but the dissent refused to do so, id.
, at 336 (opinion of Breyer, J.). And in the present case, nonmembers are required to pay for unspecified “[l]obbying” expenses and for “[s]ervices” that “may ultimately inure to the benefit of the members of the local bargaining unit.” App. to Pet. for Cert. 31a–32a. That formulation is broad enough to encompass just about anything that the union might choose to do.
Respondents agree that Abood
’s chargeable-nonchargeable line suffers from “a vagueness problem,” that it sometimes “allows what it shouldn’t allow,” and that “a firm[er] line c[ould] be drawn.” Tr. of Oral Arg. 47–48. They therefore argue that we should “consider revisiting” this part of Abood
. Tr. of Oral Arg. 66; see Brief for Union Respondent 46–47; Brief for State Respondents 30. This concession only underscores the real- ity that Abood
has proved unworkable: Not even the parties defending agency fees support the line that it has taken this Court over 40 years to draw.
Objecting employees also face a daunting and expensive task if they wish to challenge union chargeability determinations. While Hudson
requires a union to provide nonmembers with “sufficient information to gauge the propriety of the union’s fee,” 475 U. S., at 306, the Hudson
notice in the present case and in others that have come before us do not begin to permit a nonmember to make such a determination.
In this case, the notice lists categories of expenses and sets out the amount in each category that is said to be attributable to chargeable and nonchargeable expenses. Here are some examples regarding the Union respondent’s expenditures:
See App. to Pet. for Cert. 35a–36a.
How could any nonmember determine whether these numbers are even close to the mark without launching a legal challenge and retaining the services of attorneys and accountants? Indeed, even with such services, it would be a laborious and difficult task to check these figures.[26
The Union respondent argues that challenging its chargeability determinations is not burdensome because the Union pays for the costs of arbitration, see Brief for Union Respondent 10–11, but objectors must still pay for the attorneys and experts needed to mount a serious challenge. And the attorney’s fees incurred in such a proceeding can be substantial. See, e.g.
, 2013 WL 2434606, *15 (ED Cal., June 5, 2013) (attorney’s fees in Knox
exceeded $1 million). The Union respondent’s suggestion that an objector could obtain adequate review without even showing up at an arbitration, see App. to Pet. for Cert. 40a–41a, is therefore farfetched.
Developments since Abood
, both factual and legal, have also “eroded” the decision’s “underpinnings” and left it an outlier among our
First Amendment cases. United States
515 U. S. 506, 521 (1995).
pinned its result on the “unsupported empirical assumption” that “the principle of exclusive representation in the public sector is dependent on a union or agency shop.” Harris
, 573 U. S., at ___ (slip op., at 20); Abood
, 431 U. S., at 220–222. But, as already noted, experience has shown otherwise. See supra
, at 11–12.
It is also significant that the Court decided Abood
against a very different legal and economic backdrop. Public-sector unionism was a relatively new phenomenon in 1977. The first State to permit collective bargaining by government employees was Wisconsin in 1959, R. Kearney & P. Mareschal, Labor Relations in the Public Sector 64 (5th ed. 2014), and public-sector union membership remained relatively low until a “spurt” in the late 1960’s and early 1970’s, shortly before Abood
was decided, Freeman, Unionism Comes to the Public Sector, 24 J. Econ. Lit. 41, 45 (1986). Since then, public-sector union membership has come to surpass private-sector union membership, even though there are nearly four times as many total private-sector employees as public-sector employees. B. Hirsch & D. Macpherson, Union Membership and Earnings Data Book 9–10, 12, 16 (2013 ed.).
This ascendance of public-sector unions has been marked by a parallel increase in public spending. In 1970, total state and local government expenditures amounted to $646 per capita in nominal terms, or about $4,000 per capita in 2014 dollars. See Dept. of Commerce, Statistical Abstract of the United States: 1972, p. 419; CPI Inflation Calculator, BLS, http://data.bls.gov/cgi-bin/cpicalc.pl. By 2014, that figure had ballooned to approximately $10,238 per capita. ProQuest, Statistical Abstract of the United States: 2018, pp. 17, Table 14, 300, Table 469. Not all that increase can be attributed to public-sector unions, of course, but the mounting costs of public-employee wages, benefits, and pensions undoubtedly played a substantial role. We are told, for example, that Illinois’ pension funds are underfunded by $129 billion as a result of generous public-employee retirement packages. Brief for Jason R. Barclay et al. as Amici Curiae
9, 14. Unsustainable collective-bargaining agreements have also been blamed for multiple municipal bankruptcies. See Brief for State of Michigan et al. as Amici Curiae
10–19. These developments, and the political debate over public spending and debt they have spurred, have given collective-bargaining issues a political valence that Abood
did not fully appreciate.
is also an “anomaly” in our
First Amendment jurisprudence, as we recognized in Harris
, at ___ (slip op., at 8); Knox
, 567 U. S., at 311. This is not an altogether new observation. In Abood
itself, Justice Powell faulted the Court for failing to perform the “ ‘exacting scrutiny’ ” applied in other cases involving significant impingements on
First Amendment rights. 431 U. S., at 259; see id.
, at 259–260, and n. 14. Our later cases involving compelled speech and association have also employed exacting scrutiny, if not a more demanding standard. See, e.g.
, 468 U. S., at 623; United Foods
, 533 U. S., at 414. And we have more recently refused, even in agency-fee cases, to extend Abood
beyond circumstances where it directly controls. See Knox
, at 314; Harris
, at ___–___ (slip op., at 28–29).
particularly sticks out when viewed against our
cases holding that public employees generally may not be required to support a political party. See Elrod
427 U. S. 347; Branti
445 U. S. 507; Rutan
497 U. S. 62; O’Hare Truck Service, Inc.
v. City of Northlake
518 U. S. 712 (1996). The Court reached that conclusion despite a “long tradition” of political patronage in government. Rutan
, at 95 (Scalia, J., dissenting); see also Elrod
, 427 U. S., at 353 (plurality opinion); id.
, at 377–378 (Powell, J., dissenting). It is an odd feature of our
First Amendment cases that political patronage has been deemed largely unconstitutional, while forced subsidization of union speech (which has no such pedigree) has been largely permitted. As Justice Powell observed: “I am at a loss to understand why the State’s decision to adopt the agency shop in the public sector should be worthy of greater
deference, when challenged on
First Amendment grounds, than its decision to adhere to the tradition
of political patronage.” Abood
, at 260, n. 14 (opinion concurring in judgment) (citing Elrod
, at 376–380, 382–387 (Powell, J., dissenting); emphasis added). We have no occasion here to reconsider our political patronage decisions, but Justice Powell’s observation is sound as far as it goes. By overruling Abood
, we end the oddity of privileging compelled union support over compelled party support and bring a measure of greater coherence to our
First Amendment law.
In some cases, reliance provides a strong reason for adhering to established law, see, e.g.
v. South Carolina Public Railways Comm’n
502 U. S. 197, 202–203 (1991), and this is the factor that is stressed most strongly by respondents, their amici
, and the dissent. They contend that collective-bargaining agreements now in effect were negotiated with agency fees in mind and that unions may have given up other benefits in exchange for provisions granting them such fees. Tr. of Oral Arg. 67–68; see Brief for State Respondents 54; Brief for Union Respondent 50; post
, at 22–26 (Kagan, J., dissenting). In this case, however, reliance does not carry decisive weight.
For one thing, it would be unconscionable to permit free speech rights to be abridged in perpetuity in order to preserve contract provisions that will expire on their own in a few years’ time. “The fact that [public-sector unions] may view [agency fees] as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interest that [nonmembers] share in having their constitutional rights fully protected.” Arizona
556 U. S. 332, 349 (2009).
For another, Abood
does not provide “a clear or easily applicable standard, so arguments for reliance based on its clarity are misplaced.” South Dakota
v. Wayfair, Inc.
20; see supra
, at 38–41.
This is especially so because public-sector unions have been on notice for years regarding this Court’s misgivings about Abood
. In Knox
, decided in 2012, we described Abood
First Amendment “anomaly.” 567 U. S., at 311. Two years later in Harris
, we were asked to overrule Abood
, and while we found it unnecessary to take that step, we cataloged Abood
’s many weaknesses. In 2015, we granted a petition for certiorari asking us to review a decision that sustained an agency-fee arrangement under Abood
v. California Teachers Assn.
, 576 U. S. ___. After exhaustive briefing and argument on the question whether Abood
should be overruled, we affirmed the decision below by an equally divided vote. 578 U. S. ___ (2016) (per curiam
). During this period of time, any public-sector union seeking an agency-fee provision in a collective-bargaining agreement must have understood that the constitutionality of such a provision was uncertain.
That is certainly true with respect to the collective-bargaining agreement in the present case. That agreement initially ran from July 1, 2012, until June 30, 2015. App. 331. Since then, the agreement has been extended pursuant to a provision providing for automatic renewal for an additional year unless either party gives timely notice that it desires to amend or terminate the contract. Ibid
. Thus, for the past three years, the Union could not have been confident about the continuation of the agency-fee arrangement for more than a year at a time.
Because public-sector collective-bargaining agreements are generally of rather short duration, a great many of those now in effect probably began or were renewed since Knox
(2012) or Harris
(2014). But even if an agreement antedates those decisions, the union was able to protect itself if an agency-fee provision was essential to the overall bargain. A union’s attorneys undoubtedly understand that if one provision of a collective-bargaining agreement is found to be unlawful, the remaining provisions are likely to remain in effect. See NLRB
v. Rockaway News Supply Co.
345 U. S. 71, 76–79 (1953); see also 8 R. Lord, Williston on Contracts §19:70 (4th ed. 2010). Any union believing that an agency-fee provision was essential to its bargain could have insisted on a provision giving it greater protection. The agreement in the present case, by contrast, provides expressly that the invalidation of any part of the agreement “shall not invalidate the remaining portions,” which “shall remain in full force and effect.” App. 328. Such severability clauses ensure that “entire contracts” are not “br[ought] down” by today’s ruling. Post
, at 23, n. 5 (Kagan, J., dissenting).
In short, the uncertain status of Abood
, the lack of clarity it provides, the short-term nature of collective-bargaining agreements, and the ability of unions to protect themselves if an agency-fee provision was crucial to its bargain all work to undermine the force of reliance as a factor supporting Abood
* * *
We recognize that the loss of payments from nonmembers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the considerable windfall that unions have received under Abood
for the past 41 years. It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the
First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely.
All these reasons—that Abood
’s proponents have abandoned its reasoning, that the precedent has proved unworkable, that it conflicts with other
First Amendment decisions, and that subsequent developments have eroded its underpinnings—provide the “ ‘special justification[s]’ ” for overruling Abood
, at 19 (Kagan, J., dissenting) (quoting Kimble
v. Marvel Entertainment, LLC
, 576 U. S. ___, ___ (2015) (slip op., at 8)).[28
For these reasons, States and public-sector unions may no longer extract agency fees from nonconsenting employees. Under Illinois law, if a public-sector collective-bargaining agreement includes an agency-fee provision and the union certifies to the employer the amount of the fee, that amount is automatically deducted from the nonmember’s wages. §315/6(e). No form of employee consent is required.
This procedure violates the
First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their
First Amendment rights, and such a waiver cannot be presumed. Johnson
304 U. S. 458, 464 (1938); see also Knox
, 567 U. S., at 312–313. Rather, to be effective, the waiver must be freely given and shown by “clear and compelling” evidence. Curtis Publishing Co.
388 U. S. 130, 145 (1967) (plurality opinion); see also College Savings Bank
v. Florida Prepaid Postsecondary Ed. Expense Bd.
527 U. S. 666, 680–682 (1999). Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.
* * *
was wrongly decided and is now overruled. The judgment of the United States Court of Appeals for the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.