Kim Crockett Testimony on Employee Freedom before Gov’t Ops. Comm. (HF 3585)

Testimony and brief on Employee Freedom before Government Operations and Elections Policy Committee, House of Representatives on House File 3585  (specifically Article 2 on Fair Share and Dues Deduction)

Written Statement from Kim Crockett VP, Senior Policy Fellow and General Counsel

Center of the American Experiment

Thank you, Mr. Chair

I‘m Kim Crockett with Center of the American Experiment. The Center is here in support of Article 2 of House File 3585 .

First, the Center supports the repeal of laws authorizing public sector unions to collect so-called “fair share” fees from any public employee, because mandatory agency fees force both political speech and association with a union, and therefore violate the First Amendment rights of public employees.

Second, the Center supports striking the authority for agency fees to be deducted from all public employee’s pay, because the state should not be complicit in the violation of constitutionally protected speech rights.

Moreover, though the practice of favoring the business of public unions over the rights of public employees as individuals has been tolerated for decades, there is no exception to the First Amendment for public labor unions.

Third, the Center supports striking the authority for union dues from voluntary union members to be deducted also, because the state should not, as a matter of sound ethics and good public policy, collect fees for any entity with which it collectively bargains over employee contracts.

There is no other business that gets the government to secure its revenues by deducting, in the case of non-member employees, mandatory fees from paychecks.

The conflicts of interests are already great enough for elected officials and bureaucrats who negotiate with public unions over union contracts and just about every other policy before the state from budget issues of taxing and spending to education, pensions and energy policy. Unions are spending heavily here at the Capitol and on elections.

Collective bargaining is inherently political in nature. Why is the state forcing public employees to bankroll labor unions, and why is the state collecting union revenues on behalf of the unions it is supposed to bargain against in good faith on behalf of taxpayers?

As we look around the room today, or any day at the Capitol, no one can match the public union turnout in committee hearings or dollars spent to keep the union’s privileged position on both sides of the bargaining table.

In conclusion, House File 3585 protects important constitutional liberties for public employees against a forced-unionism state like Minnesota.

Kim Crockett
VP, Senior Policy Fellow and General Counsel

Center of the American Experiment

8441 Wayzata Boulevard, Suite 350

Golden Valley, MN 55426


I prepared written remarks with details and data supporting my testimony that you may find helpful during and after this hearing (below).


Brief and Additional Testimony

Center of the American Experiment, which filed an amicus brief in support of California teacher Rebecca Friedrichs, urged the Supreme Court to rule in favor of Friedrichs on First Amendment grounds. We support House File 3585 on the same grounds.

While Mrs. Friedrichs is a public school teacher, and not a state employee, the same constitutional principles apply to all public employees at the federal, state and municipal level.

Rebecca Friedrichs argued in January of this year that collective bargaining by public sector unions is inherently political. By being forced to fund collective bargaining as a condition of employment, public employees are forced to fund political activity.

It does matter if they agree or disagree with that political activity. Either way, it is still constitutionally and morally wrong.

Mrs. Friedrichs and other have argued that no American should be required to support any organization, even a union, in order to keep her job.

They do not want a “free ride” as unions have successfully argued. Public employees who pay dues against their wishes are not “free riders” but instead they are “forced riders” because unions have successfully demanded and won the right to be the exclusive bargaining agent in workplaces.

Friedrichs and other public employees simply want the right to choose whether or not public unions, who dominate political spending in Minnesota and the United States, deserve their financial support.

Many state and local public employees in Minnesota are faced with this same stark choice; do I pay agency fees to a political organization that uses my money to defeat me at the ballot box and in the legislature, or do I leave my job?

Court experts fully expected Mrs. Friedrichs to win her case 5-4 but tragically Justice Scalia, who was expected to cast the fifth vote in her favor, died last month, throwing the outcome of the case into doubt.

On March 29, 2016 the Supreme Court issued a 4-4 ruling in Friedrichs v. California Teachers Association. The split decision allows the 9th Circuit ruling in favor of mandatory agency fees to stand but does not establish a precedent anywhere else in the country. A full court with a new justice may rule in favor of the First Amendment rights of public employees. The Friedrichs attorneys are petitioning for the case to be reheard after Congress and the president agree on a ninth justice. Another case could also be brought before a new court.

Because the Friedrichs case resulted in a tie vote, Minnesota still has the legal right under a 1977 Supreme Court decision called Abood to require mandatory agency fees.

But the state is under no legal obligation to do so. Minnesota can freely join the majority of states that now have some form of “Employee Freedom.”

House File 3585 is not an assault on public unions, though if the law is passed, public unions like AFSCME, MAPE, Education Minnesota and SEIU will have to stop taking their members and their financial support for granted.

House File 3585 is, however, an assault on the prejudicial idea that giving up one’s First Amendment rights in exchange for a job is somehow fair.

That is why the Center supports striking the authority for union dues to be deducted from a state employee’s paybecause the state of Minnesota should not use this coercive power to pay unions before the state pays for services rendered by state employees. How can it be that union dues are deducted just like taxes before employees see a dime of their pay?

This does not mean unions cannot collect dues from members; they just have to get dues without the help of taxpayers or state employees.

If the union is doing a good job for state employees, it will continue to get enough revenue to function as a bargaining agent for its members. It might, however, have less to spend on union salaries, political activities and lobbying on issues unrelated to the interests of its members.

Contrary to what union representatives have claimed, if House File 3585 becomes the law, chances are pretty good that many public employees would continue to support the recognized union at their workplace. The big change would be that government unions would be much more interested in being service-oriented and delivering real value to members.

A recent study by the Mackinac Center in Michigan (see chart below) reveals that right-to-work states, on average, experience a drop in union membership of about 10 to 20  percentage points, with unions retaining a healthy 80 percent or more of members.

1 Kim Mack PNG_0

Over half the states in the union are now so-called “right-to-work” states where employees are free to decide whether a union provides value to them. The other states, like Minnesota, still force employees to support unions. (See National Right to Work chart below.)

1 RTW Map (1)



All of Minnesota’s neighbors, with which the state competes for employee talent and investment capital, are right-to-work states. Iowa, North and South Dakota, Wisconsin, Indiana and Michigan, and 20 other states, are “right-to-work” states where public employees enjoy the freedom to keep their job even if they do not join or fund a workplace union.

Until Minnesota joins the wave of states embracing employee freedom, House File 3585 offers important protections against forced-unionism.