the second one is this information system, a global information system, also exponentially more used and contested. then the third force is the introduction of technology, the pace at which it is being introduced and adopted. and so when i graduated back in 1982 and through my first tour, certainly the maritime system, the physical system of oceans and seas, looks much like it did then than it does today. the oceans are still in the same place. they're the same resources that were available on the seabed. there was plenty of shipping that transited on those sea lanes through those choke points. today the physical part of that is about the same. nothing has dramatically changed

except that the use of this system has changed in spectacular ways. increasingly used. in 1992, sort of the middle point, the cold war had just ended, as i said. soviet union had dissolved. since 1992, maritime traffic has increased by a factor of four leading up to today. this far outpaces the change in global gdp, which is just shy of doubling. it's increased by about 80%, and so it gives you a sense of how much this maritime system is being used, how accessible it is. and it's becoming more accessible, right, for a number of reasons. we are seeing new trade routes open as the arctic -- climate change affects the arctic. this past september the extent of the sea ice in the arctic was

almost 30% less than average over most of my career, over those 33 years. and it was the fourth lowest it has ever since we started keeping those records. today, the maritime route north of europe, northern sea route north of russia, is open to water about two weeks a year. by 2025, scientists predict it will be open three weeks a year. so you know that's going to be exploited. that route shaves the transit from northern europe to asia in half. so this is going to be something of great interest to commercial partners throughout the world. and it's not just accessibility due to climate change. technology is also making

previously unreachable parts of the ocean floor now accessible. so for undersea resources like minerals, oil, and gas, these deep water oil production, for instance, oil and gas production is expected to grow by 50% in the next 15 years as technology makes it more and more easy to access those resources. you know, as those resources present an alternative to land-based resources and the technology matures, the idea of offshore exploration becomes more and more feasible. and it's not just the natural resources, right? as we go into that part of the world, as we explore the ocean floor, then there is a result of infrastructure on the sea bbed that arises. so you can think of the piping and the structures that are going to be necessary to get at those oil and gas mineral

resources. and then there is a growing network of undersea cables that connect us from continent to continent. part of this oceanic internet. this is the information system, and it's a nice way to sort of transition or segue into talking about the next system, which is this global information system. before i leave that, there is -- as i said, there's infrastructure to this system. when we log on to your computer, it's all there at your fingertips, but the truth of the matter is there is an infrastructure to this. there are choke points. there are nodes, even in this global information system, which must be acknowledged because they can be exploited. and on those undersea cables rides 99% of the transoceanic

internet traffic, so something that we've got to pay very close attention to. so this information system now is comprised not of the technology and hardware so much as the data and the information that rides on all those servers, undersea cables, satellites, and the wireless networks that increasingly envelope and connect the globe. and it is pervasive and it is changing fast. all right. according to ibm, 2.5 quintillion bytes of data are created every day. and this exponential curve is such that 90% of the data available in the world today was created in the last two years. so you get a sense of the acceleration. you can feel yourself being thrown back in your seat when you hear data like that. and the cost of entry is getting

lower and lower and lower. back in the early 90s again when i was a lieutenant commander just finishing my tour as executive officer, in that year in 1995 a gigabyte of memory cost $625. and if you wanted to buy a hard drive, that was about as big as you could buy at that time. okay? now in 2014, let's say a b gigabyte of data costs 5 cents and you can get a terabyte hard drive off the internet. the cell phones carry a tremendous more amount of power than the system that landed on the moon in 1969. the links between the different nodes on this system have multiplied as well. the first server came online in

1993. much of this had its origins at that time. in just the first quarter of last year 2.7 million servers were shipped worldwide. satellites now envelope the globe. there are more than 1300 satellites in orbit today monitoring weather, communications, sensors, space exploration, covering the globe. if you look at a picture of the satellites as they orbit the earth, again there it is not homogeneous. there is structure. there is form there. again, just like the cables, just like the physical system of the seas and oceans, that structure provides opportunities and vulnerabilities. the third force that i think is very important for us to consider is technology itself, the introduction and the rate at

which technology is being introduced and the rate more importantly at which it is being adopted. this goes far beyond moore's law. things are changing stunningly fast in that for sure. i'm also talking about rapid advances in material science, in robotics, in genetics science, and artificial intelligence. it is coming at us faster and faster. and they are being adopted by society just as fast. so when the original telephone was introduced was alexander graham bell's telephone. it took 46 years before 25% of amerans had a telephone. okay? for the smartphone, that was seven years. and for facebook, within three years 25% of america was on facebook.

not only are these tools coming at us faster and faster, but the usability and the rate at which they're being adopting is also accelerating as well. so you get more people in the game using those tools faster and faster. so those are the three forces that have captured my attention. certainly the physical maritime system, no surprise there, i think, to anyone who is in the navy. a navy guy talks about the seas and oceans should not be a surprise. this information system certainly not exclusive to the navy. it changes everything that we do. i'm preaching to the converted here in the national press club, but it does change things for us as well. then this increasing rate of technological creation and adoption. these forces, i think, are fundamentally important to being effective as navy and as i said change the character of the

competition. all right. but as i mentioned, the teams have changed as well. back in 1982, 83, we were at the height of the cold war. the chips were down and it was that bipolar world, right? i mean, how easy is that, right, to appreciate. today, it's much more multi-polar as you know. i think our challengers and competitors in terms of three groups. in one group you have russia and china. in another group you have competitors, threats, just like iran and north korea. and then there is this pervasive threat of international terrorism. for the first time in what i would say is roughly 25 years the united states is back to an era of great power competition. when i was deployed in 1983 in

support of the soviet union, it was a different world. but when the soviet union dissolved, cold war ended, we really entered a period where we were not very -- we were not challenged at sea. not in a very meaningful way. that era is over. today, both russia and china have advanced their military capabilities to be able to act as global powers again. their goals are backed by a growing arsenal of high-end war fighting capability, many of which are exploiting those three forces that i mentioned and are focused specifically on our vulnerabilities. and so this is a competition where every competitor, every team, is learning and adapting. and they are increasingly designed from the ground up to exploit the advantages, the

opportunities, of those three systems, the maritime system, the information system, and for incorporating new technology. they continue to develop and field information and weapons, both kinetic and non-kinetic that result in increasing range, increasing precision, increasing effect, and potentially increasing disruptive capacity. in china, it is not all high end. they're engaged in competition and coercion just below traditional threshold levels of conflict. part of our challenge going forward is to think hard and to come up with some options to address that type of competition. i've said it before. the russian navy is operating at a frequency and pace not seen

for more than two decades. the chinese navy, the people's liberation army navy, is extending their reach around the world. this is great power competition. but importantly russia and china are not the only teams seeking to gain advantages in this emerging environment. others are also pursuing advanced technology, including military technologies, technology that was once really the exclusive purview of great powers. and this trend will only continue. the cost of entry, the proliferation is going down. p proliferation going up, cost of entry going down. coupled with a continuing education to furthering its nuclear weapons program, north korea's provocative actions continue to destabilize the region. teheran's advanced missiles, proxy forces, and other

conventional capabilities continue to pose threats to which the navy must remain prepared to respond. finally, there is the international terrorist groups and they have proven to be adaptive and resilient and pose a long-term threat to stability and security around the world. so the competition has sped up. it is moving faster. i will tell you the thing i'm trying to communicate to my team is that we must respond. we must speed up. the margins of victory in this environment are razor thin, but they are absolutely decisive. so we have turn to our task and fight for advantages with a sense of urgency because this is truly a game of inches. all of these actors that i described seek to exploit all three forces that i mentioned -- speed, precision, and reach that

the maritime and information systems now enable bolstered by new technologies to counter any u.s. advantages, to threaten the rules and norms that have really been the basis of prosperity for everybody who would want to engage in the last 70 years. and these forces don't -- they're not independent variables, right? they interact and combine to create a maritime environment, as i said, that's increasingly used, increasingly stressed, increasingly important to us as a nation and increasingly contested. then as mr. hughes mentioned there is a force, if you will, out there. for the foreseeable future, our resource environment will be challenging. we're not going to be able to buy our way out of this challenge. and if you're a student of history, you know the reality is we never have been able to.

we have always been working with finite resources. so what is the role of the navy in this changing world? well, i think as always our mission remains by and large the same, to keep the homeland safe, to protect american interests around the world, to protect our prosperity, that trade upon which our prosperity is founded and which so much of 90% of goods still travel over the sea. it is to guarantee our strategic influence around the world through our presence, through our high-end competition, and if necessary, through conflict. but we are going to have to answer these strategic challenges and posture ourselves to effectively compete. if you think about those four forces that i mentioned, i have laid out a four vector response. in response to the growing importance of the maritime

domain, we are going to challenge ourselves and focus back on high-end operations in blue water, and we will focus on addressing those challenges just below the threshold of conflict, that gray war that's been referred to in many ways. in response to the growing importance of the information system, we will double down on becoming an informationalized force, mainstreaming information warfare into our navy. in response to the growing rate and adoption of technology, we will adopt as well faster -- looking for ways to speed up our acquisition approaches and develop and field technology more quickly. and then in response to the fact that resources are going to be

what they are, finite, we are challenging ourself to look at combining existing things in new and creative ways to develop capability that was heretofo heretofore unseen that the system delivers something that is more than the sum of its parts. a main theme through my guidance is when things happen at this speed, you have to fully exploit your advantages to fully capture the fleeting opportunities that will be presented. we've got to operate in a roughly decentralized manner, right? and to do that, we've all got to understand what the commander's intent is, so we spent a fair

amount of time putting this document here together. by virtue of that collaboration, that inclusive approach, in the end we built the familiarity and the trust and the competence that's based on a clear understanding of that guidance amongst peers and up and down the chain of command. we understand through detailed engage engagements, through detailed conversations, how much risk can be tolerated. in fact the discussions of the design, the most fruitful part of that has been bringing together navy leadership and putting this together as a team. and it's not all about understanding the design, too, right? one of the things that is fundamental to us having trust and competence in one another is we are a profession that's bound together by core values, honor, courage, and commitment.

so there is a fair amount of discussion in this design to enhance our professional identity. i list four core attributes that if we abide by these attributes, integrity, accountability, initiative, and toughness, then our behaviors should align with our values. and we are a force of integrity across the board. with those four core attributes guiding our decisions, guiding our behaviors, we have laid out our plan along four lines of effort. first, we're going to strengthen our naval power at and from the sea. now we've got to sharpen our skills for operations and conflict at sea. we must modernize first and foremost the undersea leg of our

strategic deterrent. if we don't do that, we're not even in the league. we are not a great power, so we must get that right. but we also need to urgently respond to coercion that falls short of traditional conflict and we need to get back in the fight in blue water and we need to find ways to fully exploit the capabilities of the information system. and we will. and we'll do this learning as we go through a program of war games, exercises, and fleet experiments. second line of effort is focused on our people. everything we do comes by, with, and through our people. this is the most important thing that we must focus on. so hiring, training, and reta retaining a creative professional team, one team, of sailors, navy civilians, and their families is going to be absolutely key to our success. if you think about it, that

technology is the brain child of very smart and clever people, and it is built in exquisite manufacturing plants. so we're working to make navy careers more attractive to attract the most talented people that we can find. i guess i've got to pause here and tell you it is a stunning privilege to be able to go out and see our navy. one of the first things i did was take a trip around the world. and we visited the navy in the seventh fleet, in fifth fleet in asia, and then in the sixth fleet in the mediterranean. everywhere i stopped the talent, the focus, the enthusiasm of our

navy team blows me away. admiral carter here inducts about 1,000 of those young people into the naval academy every year. they could write their check and go anywhere they want and yet even after more than a decade of conflict, this team raises their right hand and takes an oath to support and defend our constitution and they know what that means. so i have tremendous respect for them and we need to make our navy as adaptable and attractive to that team as possible. third, we're going to expand and strengthen our network of partners. you know, we have never fought alone as a navy. going forward, i don't see that being the case here. the united states navy, as focused as i am on that, it is just a node in many networks.

so we are going to enhance our participation as a member of the joint force, as a member of the government, the interagency process. if you think about expanding that out to industry and academia and then certainly overseas to our allies and partners, all of those people play a role in our success. we need to focus on being better partners to all of those teams. finally underpinning all these efforts we're going to tune our processes to learn faster. we're going to focus on that, this learning process. we're going to become smarter and accelerate learning as individuals. and there's plenty of research and technology that's come into the system that is focused on learning faster as the goal of that effort. also the system and the technology, the simulators,

those sorts of things are becoming high enough fidelity that we can bring in teams and expand that out so we're able to simulate so much more. i'm kind of a science fiction geek a little bit. for those of you that share that vulnerability, you know if you've read "enders game" is sort of where i'm going, even if you saw the movie, you can't tell the difference between reality and simulation. we're getting there in many, many ways. i think there's an awful lot of gains there. and we're going to be mindful that we do need to learn, which means that we've got to admit up front that we don't have it all right, right? that there is actually something to learn. so as we move forward, we're going to ensure that we have self-assessment baked in. are we having the impact on the environment that we set out to have? tremendously complex environment. we're not going to get it all right, but we can't sit and study it forever.

this is not an academic institution. we have to act and influence that environment, but we're going to be mindful that it may not turn out the way we thought and we'll assess and adjust as we go. and in the end my hope is that we'll have a naval force that develops leaders and teams that learn and adapt faster than any adversary that achieves the maximum potential that the system will allow. achieve and maintain high performance standards to make them ready for decisive operations and combat. it's a strong commitment. it will require a lot of hard work on the part of many people, but our navy is on the right track. i'm looking forward to the privilege of leading it for the next four years. i thank you all for coming today and hearing me, and i look forward to answering your questions. thanks very much.

[ applause ] >> thank you, admiral. several questions about the south china sea. do you believe the navy should be doing more routine passages by the chinese built islands, if not now, when? and what steps are you taking to ensure that those patrols stay peaceful? >> well, certainly this is an important part of what we do as a navy. while the south china sea has everybody's attention right now, it should be understood in context these types of operations have been the business of the navy for a long time and have occurred fairly routinely throughout the world. and so there is an internationally recognized system of rules and norms, and we abide and operate in accordance with nothose rules a norms. and if there are challenges to those rules and norms, we'll do

these operations to make sure we respond to that challenge and behave accordingly. with respect to the south china sea, it is no different than anywhere else, so we need to establish a presence down there that enforces and reinforces the importance of those international norms that challenges any sort of claims to those norms. so as you have heard from the president and the secretary of defense, we'll continue to fly and operate wherever those international rules permit as we continue to advocate for that rule system, which again has been the basis for prosperity particularly for those nations around the south china sea in that part of the world. and so i look forward to working with our partners in the government to be as forward leaning in that area as we can.

again, we want to make sure that what is understood as normal in that part of the world includes abiding and advocating for those international rules and norms. >> has china's introduction of the hyper sonic missile been a setback for the u.s. and its aircraft carriers and has it in fact rendered our aircraft carriers obsolete? >> no. [ laughter ] [ applause ] >> it's tempting to just leave it at that and that is the answer, but a sophisticated analysis and understanding of that -- i'm 100% confident because i've seen it -- will give everybody confidence that

the aircraft carrier of the surface fleet is as relevant and important today as it ever has been. and so is it causing us to think about employment options, force offerings, fleet design? we are going to have to adapt to that threat, but it really is not a matter of whether we employ surface forces and carriers, but how we will employ surface forces and carriers. that is just a little bit >> how about north korea? are you planning steps to monitor the situation there? any thoughts of sending an aircraft carrier into that region? >> certainly there's always that question about what sort of operational response you're going to take and as you all have heard i am, you know, not

going to talk about specific operations, specific responses but as i said in my remarks that type of provocative action just continues to destabilize so we'll work with our allies and partners, the republic of korea and japan, sort of very important partners in that region to continue to monitor and respond appropriately so that unpredictable situation. >> what's the greatest challenge to the effectiveness of the campaign against isis. >> you know, it's really, as always, it's just how do you connect the information? i mean, the connectic part is not the challenging part. it's how do you get the situational awareness to know where the meaningful targets are so that we can do this as

precisely as possible. having the greatest effect on, you know, eliminating this enemy, destroying this enemy and then leaving, you know, the rest as intact as possible. so it's always a matter of the information that leads us to those type of decisions. >> thank you. >> several questions about russia. russia is a growing naval presence in the mediterranean and through overflights how can you and the navy help be prepared in this area and another person asked will there be additional navy deployments, black sea, mediterranean on what timetable? >> another great one. this is or the of, as the russians themselves have said, they're operating at a tempo that's not been seen since the mid 90s and they're operating in different places.

the eastern mediterranean. during that trip i took the last stop was in italy and there was a regional symposium there of the eastern mediterranean and black sea nations, the heads of navy. they were very focused on that rising challenge. the russian challenge. they just put out a strategy which is very forward leaning and so of course we must i think respond to that threat to do so with just be negligent. so the details of that of course remain to be seen and you'll see those unfold and then there is sort of this persistent activity under sea which has been a signal that has not gone away as much as many would think. it's been steady business for the russians and we're mindful

of that as well. >> there's been tension between the navy and overall dod over ship purchasing and secretary carter directed cuts to the literal ship combat program. does secretary carter's order to buy viewer ships in favor of jets hold water? >> well, it happened, right? it was a matter of time before that question -- first of all, the specifics of that are still to be determined, right? so that -- that budget has not been locked down yet so it's premature to comment on the exact shape of that going forward and so -- but what it gives rise to is a -- there's been a lot of questions about, okay, is it going to be capacity or capability? what are you focused on? or is it going to be presence or postjurors, you know? and particularly for naval

forces it would say i'm responsible for delivering the nation and i think nation rightly holds me accountable that achieves a balance of all of the above so these are not either or decisions. these are both and decisions. we'll always strive to balance within our available resources to deliver the navy that the nation expects. to execute our mission to protect america. protect our influence around the world so that's the art of it. to try not to get drawn down into these either or decisions. there's traps associated with that and to try and achieve the best balance, thanks. >> this questioner wonders how the navy is doing in recruiting and retention, especially in high-technology and high demand

assignments such as seals, cbs and cyber warriors. what about women? this questioner points to comments and raises the question of whether the navy will be able to recruit enough women for some combat jobs. >> i think with respect to bringing the talent into the united states navy, the goal, and particularly lately, has always been we want the very best talent that we can get our hands on. i met a number of people in industry today, you know how competitive that environment is its intensely competitive for the high end people, men and women and to artificially sort of restrict ourselves in that

area we're going to deny women that denies us of the talent and the best navy we can possibly be. that's my thoughts on that regard that we will continue to attract and train the very best talent that the nation has. men and women and we'll be making great progress in that regard. after we're done here, talk to carter about the journey he's been on to bring women into the naval academy, it's a good news

story they're attracted to our team by virtue of our values. they want to be part of something bigger than ourselves. so once in we have to insure that we have the integrity that such that our behaviors align to our values. if there's a disconnect or mismatch that's going to be detected instantly. the smartest will leave first because they don't want to work in an organization where there's a mismatch or a climate of cynicism. and so we have to work very hard. that's why those core attributes, i spent a fair amount of time talking about those because it's critical to keeping that talent on board. that's what attracted them so we have to follow through with that. >> more details on your plan to implemented faster learning.

how will you do that? this questioner says i don't understand what problem you're trying to solve. can you layout some specific examples of times the navy hasn't learned fast enough? and why you think the navy isn't learning fast enough now. >> okay. it's been only a few months and we're just getting started but in terms of being agile, let's just talk about that. with respect to how we're going to get after learning i think i mentioned that in my remarks. there's a tremendous amount of science that's been done recently about how the brain works. how do people learn? not everybody learns the same, you know? and we have the technology now to really tune a learning environment to the most receptive channels of each of us at an individual level. so i look forward to exploring that science and bringing it into the navy.

we have in many ways an industrial learning, training process that hasn't changed fundament fundamentally this system goes back much further. so we're actually piloting a program right now that is looking to explore how we bring workers in and make them effective workers in the shipyard. so you have these people and actual laz some of you know we have been hiring like crazy to increase the capacity at our shipyards and then, you know, so you are bringing people in the door at a great rate and great commitment by the nation go down

and check out the processes to make sure that we are getting people into the productive work force as fast as possible. so that's just sort of one example. i'll tell you another mundane example. but it hints at the potential. when a arrived in my job here first of all have to confess it took me about three days to get to the backside of my desk. that's where the c and o sits and this is going to take me a little while just to get used to the fact. the respect for the office that i had.

how about if we throw this on an tablet. give me an ipad or tablet computer in the morning and i'll page through all of that. the initial response was, you're the new guy here. let me just explain to you how this works and what is possible and insane. we went through that phase and i currently have a tablet and it has all of that functionality and capability that a tablet has so now i don't have to -- if i want to explore more deeply a particular development during the day, i want to look at a particular class or person or everything more deeply it's all right there. you know how it works. you touch, touch, touch. and i'm reading somebody's bio

or the specifications and it's all there. you know, the classification, we have come through those issues and so we have got it all down. most of my direct reports were getting that binder as well. there's the library of 25 binders that would go around on the big cart every morning and they would be collected attend of the day and go back into the machine. by virtue of the small effort and this is just a tiny effort, first of all the most important thing to me was to respect the intellect and time and talent of the person that had to put that binder together. so you can only imagine the agony each night. the printing, the bunching the holes, it's jammed. the whole deal it's just vast

amounts of time returned to the work force and we're saving -- it's already paid for itself by the way. we saved $5,000 a month in paper and toner and, you know, all of that sort of stuff. consumables. tiny, tiny example. i don't mean to say this is the resolution but it's nice to dive into the 2000s here and bring this capability on board. so many things the master chief petty officer of the navy, he's doing the same thing at boot camp. we did a pilot program there instead of this library of books, training manuals, et cetera, we put it all on a tablet and we're finding they are learning so much faster by

way of doing that. not only because that's how they have come to absorb information but because they can carry that everywhere. you can't carrie that library of books and you can carry your tablet and there you are reading and it's, you know, these folks are focused on doing the best job they can and this tablet allows them to do that. he is going to populate our recruits and i'm getting the top down focus and overtime we'll get this throughout the navy and that's just one example of how we can leap forward. >> before i ask the final question i'd like to present you with the national press club mug. highly valued, precious gift and

for the purposes of today i noted this is navy blue in color. final question, navy has beaten army on the football field for 14 years in a row. is that right? simple question, will army ever win again? >> well, this is sort of a one word answer as well. yes. but not on my watch, right? >> thank you admiral for coming today. [ applause ] >> i want to thank our audience and the national press club staff including it's institute and broadcast center for all the work that went into organizing today's event. if you would like a copy of this program or to learn more about the national press club go to our website, that's press.org.

>> washington journal is live every morning at 7:00 a.m. eastern and you can join the conversation with your calls and comments on facebook and twitter. as president obama prepares for his state of the union address on tuesday he released this on twitter. >> i'm working on my state of the union address. it's my last one and as i'm writing i keep king about

the road we travelled together the past seven years. that's what makes america great. our capacity to change for the better. our ability to come together as one american family and pull ourselves closer to the america we believe in. it's hard to see sometimes in the day-to-day noise of washington but it is who we are. and it's been what i want to focus on on this state of the union address. >> c-span's coverage starts at 8:00 p.m. eastern and real clear politics congressional reporter looking back at the history and tradition of the president's annual message and what to expect in this year's address. then at 9:00 our live coverage of the president's speech and followed by the response by nikki haley. plus your reaction by phone, facebook, tweets and e-mail. as well as those from members of congress on cspan, cspan radio and cspan.org.

and we'll air the republican response at 11:00 p.m. 8:00 p.m. pacific. also live we'll hear from members of congress in statuary hall with their reaction to the president's address. >> the u.s. supreme court heard the argument over whether to require union members to pay dues. we'll hear from a university of baltimore school of law professor and the associate general council for the service employees international union. the american constitution society hosted the event. >> hello, everybody. can you hear me? okay. i would like to welcome you to our briefing today on the upcoming supreme court case

fredericks versus california teachers association which is going to be argued next monday, january 11th. i'm the president of the american constitution society. before we begin i'd like to give an extra special thank you to judy scott who is the general council of the service employees international union where we are sitting today and sciu itself for providing us with this wonderful space and hosting today's briefing. it is so great to be here among so many friends. so we were founded in 2001 an we are a national network of lawyers, judges, policy makers, academics and law students. we believe that the law should be a force to improve the lives of all people. acs works for positive change by shaping the debate on vitally important legal and

constitutional questions through the development and promotion of high impact ideas to opinion leaders and the media and by building networks of those dedicated to those ideas is and by countering the movement that south to erode our enduring constitutional values. today's expert panel will discuss the critically important case fredricks versus california teachers association. the crux of this case is the question of whether public sector unions can collect what are known as fair share fees that cover the cost of collective bargaining and contracts for nonmembers and whether they constitute speech. our panel lists will discuss these issues as well as the role of collective bargaining in maintaining labor peace

historically and the perspective impact that this case may have. on workers and public sector employment in the short and long-term. to understand these issues and talk about what is at stake we have a wonderful moderator today. professor garrett epps. he teaches constitutional law at the university of baltimore school of law. he is a contributing editor and supreme court correspondent for the atlantic. a contributing editor for the american prospect. the author of several books and now i just learned among them two novels. so if you're feeling inadequate already, even more so. more recently garrett published american justice 2014. nine clashes visions of the supreme court. he's also a former staff writer of the washington post. the new york review books, the nation and the new republic.

he has an llm in comparative law. comparative and international law from duke. a ba from harvard where he was editor of the harvard crimson. but maybe most importantly and i'd say for us certainly at acs he is a great friend to the american constitution society to please welcome garrett epps and our esteemed panel. thank you garrett. >> thanks for the introduction and thank everybody for being here. we have a great panel for the issues and it's important in first amendment and public employment law and it is such a good panel that even though i am a law professor, i am looking

forward more to listening to them than talking to myself and we like to talk and get some back and forth going. you'll then have time for your questions: i will try to stay out of the way in the discussion but we did agree beforehand that panel lists will try to keep their comments to a couple of minutes so that we can do back and forth and it's possible if someone forgets that i may start going like this. but i'm not choking. to my left is deputy solicitor general in the state of new york. she has served in the civil division of the u.s. department of justice, the white house council office and the office of the white house chief of staff. marianne parker to her left is associate general council here

at sciu and lead council in the public services division. she is also practiced law with the d.c. firm and interestingly enough was once program coordinator at the endowment moscow center. i bet there's stories that could come out of that. to her left, in a sense in jeff harris, he is a partner at bancroft and has litigated a number of very important cases in front of the court in the last five years or so. during october term '08, he was a clerk for chief justice john roberts and finally, andy, partner at major brown that focuses on appellate litigation and the supreme court. and in front of the court. as you can see there's a lot of

knowledge lined up here to the left and when we met and conferred before the panel i asked each panelist to imagine they got a phone call from someone very important. either justice kennedy or which ever you consider to be rank higher and said i have one question for you. what one question would they want this person to ask them. and then we're going to move into more back and forth. so starting withan issue with y you said the state of new york and other fair share free states feel they have in collective bargaining as it's practiced and it's utility to them.

they usually get and the role that fair share fees play in those arrangements. these benefits include increased proficiency and government services but the benefit i want to focus on is the disruption of core government services and many are not provided by the private sector at all or are not provided at costs affordable. so we're talking here about public safety, public education, institutional care for the elderly, the disables and the mentally ill. welfare services for the needy and the experiences in new york and many other states showed us in the era before public employees had a forum to air

their grievances and their concerns about their work place conditions there were often work stoppages and strikes and disruptions in the work place that in-turn caused disruptions in public services in ways that had a dramatic effect for the public and following on the model of federal collective bargaining, states, many of them chose to adopt collective bargaining for public employees. now the important second piece of the puzzle is the fair share fees and how fair share fees support these modes of collective bargaining and from the perspective of the state employer what the state is looking for public employer, it's a they dpoesh yating partner that's in a position to negotiate effectively and to address employee concerns at the source. and that requires expertise of

all different kinds. economic expertise, legal expertise and managerial expertise. what they do is go toward defraying those costs. and why the right to work states and diversity of different approaches done undermine the story. that fits better with the discussion. so i'll leave it for that part. >> that's great, thanks. >> marianne, you indicated you would like to talk about the fact that our society at this moment is in the middle of a very complex and painful debate about increasing inequality and that it would be worth while to see it within the context of that debate. >> i would want this caller that

can call any time to step back and consider that we are living at this moment in the worst of times and arguably the best of times. i mean, we're here at a time when our american economy is out of balance with wealth and opportunity accruing to an increasingly smaller group of people and interests and people are working harder than ever and still find themselves struggling to provide a descent life for their family. 42% of working people. that's 64 million american workers earn less than $15 an hour. so these are really grim facts but it still feels like the rules continue to be rewritten to favor the wealthy few at the expense of the rest of us. and yet, it is a time of incredible hope and change. the fight for 15 is a national movement. a couple of years ago it began as this demand for $15 an hour

among fast food workers and since that time over 11 million people won themselves a raise at work. in addition there's a growing understanding that it's a demonstrated fact that when workers come together, when collective action thrives in the work place, opportunity and economic mobility are the result. so we have seen time and time again that in partnership with employers public sector workers built middle class jobs and closed wage gaps for women, for people of color, for lgbt workers and brought their front line expertise to solve real world work place problems and help their public sector employers with issues of reducing cost, increasing efficiency and quality. these are problems ever bit as important to solve in the public sector as in the private sector. arguably more important. an astonishing study came out this fall.

it was a national study by many well respected economists and it was looking at income mobility. particularly for children born in the bottom quintile of our economic system. and there was an incredibly vigorous showing that where they lived, if they lived in an area of high wrun i don't know density they had considerably more hope of moving up in the economy. this was true even if the child herself wasn't from a union household and it's proof that workers lift all votes and improve entire communities. so we're at this moment, a time of great inequality but a time of great opportunity and we're here to discuss a case that would limit the power of working people to come together and do the work that has been done effectively in many work place where is they have the capacity to do that work. so i see this case as part of a much larger attack on the

ability of working people to be effective and to ban together and provide a key resource in the fight against inequality that so many of us are engaged in right now. >> thanks. >> jeff, you said you'd be interested in talking to this person about the overarching theme of the first amendment as it has developed in front of the supreme court and whether there would be anything anomalous about a decision for the petitioner ins or about a victory for the respondents leaving in place the precedent that approving fair share fees and whether there's only one first amendment or it's a whole lot of different specialized areas. >> thank you for that. thank you for having me. the one overarching point i would make is there's only one first amendment and it doesn't

contain an exemption for labor law. it is on compelled speech or association just because the individuals are being forced to associate with the union as opposed to some other type of private organization and i think to illustrate that it's most helpful to take a step back and look at two other contexts. one in and one out of that context. first of a political patronage system. imagine that the texas governor said from now on we only want to hire active dues paying republicans because texas is a small government low tax state and we only want people that share our values to be doing the public's work. it's pretty well established that a political hiring process would be unconstitutional. but once we accept that i don't see how we can allow states to coerce people into financially supporting a union. both situations involve

compelled payments to a d ideologically charged private organizations and i think the issue of mandatory agency fees and it's important to remember this case is not about the right to collectively bargain. it's not about exclusive representation. it's only about the compelled payments to the union so, you know, i think the problem with that are even clearer when we take another step back and get outside of the employment context all together. so stick with texas for lack of a better state and say texas is not worried about children and information providers. and if you have a if you have a

million dollars a year to the for access fees education services. i don't think that would be unconstitutional because you would have the government telling parents to support a private organization whose mission they may disagree with and the state can't make it constitutional just by saying well we're going to also have the boy scouts in a service in exchange for your compel money. so again i think my big take away would be that this case is about unions and once we accept that the government has this extraordinary power to compel individuals to subsidize a private organization it can lead to lot of other things that would not sit well with progressives as well. >> andy, you were also interested in the first amendment context from a slightly different point of view. mostly discussing how the first

amendment currently applies in the context and whether there really is something anomalous about it. >> might be good for jeff and i to have a conference call. there would be a pretty good exchange of views on the first amendment. let me back up and say although of course there's only one first amendment it's quite settled that it does apply differently in the public employee context just as there are a myriad of first amendment standards for different contexts. there is a special first amendment standard in the public employee context and the court said a bunch of years ago the state has interest as an employer in regulating the speech of its employees that differ significantly from those that it possesses in regulation with the speech and citizen ri in general. so clearly, government acting as employer is different. so whatever the rule might be about forcing people to join the

boy scouts -- i personally didn't like the boy scouts. a little too maritalistic for me when i was a kid. that has nothing to do with what the first amendment standard is in the public employee context. let me talk about two examples. one started with this case and it dealt with the question of what is the governments ability when it comes to employees. what the employee does is speech and there could be complaining about work place conditions. there could be an unwillingness to sign on to certain employee tasks because the employee disagreed with the policy and didn't want his or her name associated with it. so the court developed a special standard for assessing the extent to which the first

amendment regulates the governments ability to act as employer with respect to speech conduct of employees and that test basically says if the speech is not about a matter of public concern, then the government -- there's no first amendment balancing at all you. the government can do whatever it wants if it is on a matter of public concern. still the very strict first amendment doesn't apply to the governments action. the government action is measured against a balancing test and it's a balancing test where the court has several times said there shouldn't be a lot of second guessing about the governments interest as employer typically in running an efficient work place that government employers advance in arguing against first amendment rights in this context. so in the work place speech context which seems the most

analogous to this which is a first amendment claim we have a very different and a very differential first amendment standard. jeff mentioned the patronage cases. what the court has said is the test is whether or not it's reasonable for the government to require political affiliation as a condition of employment. there was just as brendan tried to sell a much more restrictive test in the 70s but the current court opinion talks about reasonableness as the test. a standard that would never apply to actions, burdening nonemployees in the first amendment context. so i think it's important to look at the issue here in the context of the other first amendment rules and recognize that what the court said and what the rule has been for 35 years is exactly the same

principle that the court adopted in the work place context which is to say obviously contract negotiation deals with a lot of work place issues, wages, grievance standards, lots of them. we're going to treat them in the employment context. we're going to recognize in the employment context that there's no first amendment protection for the employee as an actual speaker so in the association context, the government can require financial support with respect to those very same activities. that seems pretty equivalent and even if sometimes labor negotiations might move into areas of public concern, even then there's a differential standard and the question is the government, does the government have an interest in efficient operation of its work place which justifies the fair share requirement and i think the briefs filed by new york and other states make a very

powerful point that here there is a great interest in having an effective negotiation partner first of all in the negotiation context but even more and we'll get into it in the fact that in connection with that representation and pbargaining activity the unions take on significant obligations in terms of administering grievance procedures, work place safety partnership, in terms of training for employees and in the first responder category. in terms of providing for rehabilitation and other services for injured first responders that otherwise employers would have to take on. so there's clearly a huge government interest into that but i'm sure we'll get into that a little bit more. >> thanks, andy. i want to say before we go on that i actually spent three years in the boy scouts as a second class scout which is a

literal category because i couldn't pass the first class exams so you talk about compelled speech. i'm not bitter but i think what we heard here sets up a really important issue that is being advanced in this case. and that is this suggestion which is made by the petitioners and those that support them that this is compelled speech and violation of the first amendment because any activity by a public employee union. any collective bargaining sin herniately political because it has to do with the comment of public affairs. >> i know you indicated that you had some interest in talking about that because i'm sure probably everyone does. do you want to tackle that first? >> sure. >> just reviewing the fantastic briefs in this case and the cases underlying them it seems clear that it's just simply not

unsettled. we have a standard whereby nonmembers cannot be compelled to pay for political speech by unions. and the first amendment aspect of this isn't really in question at all. i mean, just six years ago there was a unanimous decision upholding the general first amendment principle. so what we have seen is an attempt to characterize more of the work that happens in labor management relations as political. it's not an anomaly. there's not something that has to be fixed here. there's just a different way of seeing the world and we have a particular impairment in this case because we don't have a record. this case came up to the supreme court in a particularly odd way. it's reached oral argument in less than two years from when i

was filed. this is because the petitioner ins asked the district court and nine circuit court of appeals to rule against them because they knew there was no law on their side. so those courts obliged them and ruled against them. as a result we have no discovery. we have no record. we have a very abstract conversation going on. and we are requires to accept the pleading so what is on the record in terms of what the union does is the truth of this case and the facts of this case but we also have a great deal of content in the case and in particular based on everything they do is political. there's a lot of evidence to the contrary and in particular i wanted to draw attention to a brief done by the two largest

public hospital systems in the nation. the los angeles department of health services and new york city's health and hospitals. collectively they serve almost 2 million patients a year. this brief was done jointly with sciu. the largest union of health care workers in the country. and when you read this brief you understand the extent to which the work going on is not inherently political. it's inherently about the business of running a hospital and what is happening at new york city health and hospitals is what's happening at kaiser. a private sector hospital chain that figured out that it is a good business decision to engage with front line nurses and doctors and cleaners to reduce infection rates, to make sure that emergency room get turned around quicker. reduce wait times. to make sure that there's less recurrences of pediatric asthma. they're all measurable and done through labor management

partnerships and cannot be done without a well resourced union that has the ability to take on the work it requires. another fantastic brief in this case from 27 cities and counts and other 28 public officials atesting to the work they do with their unions to some of the work that andy eluded to. everything from putting less ba garbage trucks on the route to figuring out the water authority over many years. these things are done more effectively with a well represented worker force. now not every city and county in the country signed on to this brief and maybe we know that there are 25 states that don't allow these kinds of arrangements. but the idea is the 23 states covering half of the population in the united states do. and they're doing so pursuant to a very well established law and in reliance on that law.

>> who would like to tackle that? jeffrey do you want to go next? probably everybody will have something to say on this issue. >> i don't dispute that unions do lots of wonderful things that help both their members and the public at large but so does the aclu and ncaa, and the american constitution society and the national rifle association and i think there's a couple of reactions. first of all, again, if, you know, particularly i know there's some circumstances where a union is providing some sort of extra insurance or extra benefit. if that's the case then that seems like a perfectly compelling reason for people to join the union voluntarily of their own accord. you know, the other point as i already says is, you know, there's lots of private organizations that do lots of wonderful things that support themselves through private voluntary contributions and the third point i would make is that, you know, if the union is

not able to pay for these things, of course the government can always pay for it itself. i mean, the government, the hospital system can always establish a program in coordination with the eun beyond and the hospital can pay for it or the county can pay for it to school district can pay for it. i don't disagree with any of the good things she was talking about but i don't think it follows that we need to be compelling people that don't support the union to pay for its activities. >> have you got a dog in this fight? >> yes. i do and that's from the standpoint of a public employer a lot of these things, we don't perceive as political or ideological and although in an ideal world it would be nice to think that people are always willing to open their pockets to pay for the things that help them, the reality is that free writing is a problem whenever the rules allow it because people may underestimate the benefit they get from important

public services and collective bargaining is no exception to that. in circumstances where they don't have to be paid people sometimes don't contribute for the benefits they get and that can cause work place tensions, the supreme court has discussed this in a number of cases but it's also a matter of common sense that people feel bad when they are paying for something that they're not getting the full benefit of or conversely when they see someone else benefitting from something that they're paying for without making a contribution themselves. so in addition to supporting the collective bargaining structures, fair share fees are important to give everybody skin in a game in a way that reduces work place tension and from the moiier standpoint this is something that is a benefit to public employers. public employers wouldn't want

to necessarily rely on the good will of people that can be provided. >> a couple of points and i think just to take marianne's point about the argument of petitioning and everything encompassed within the collective bargaining discussion is true and that's the basis for ruling of the petitioner ins in this case and then the court is going to grapple with the fact that that undermines the legal structure developed for dealing with the many hundreds of work place speech claims that are filed annually against government employers. because there's a question. is this a matter of public

concern or not overtime wages and grievance procedures, all of these things are not matters of public concern and there's no first amendment right and no need for balancing case dismi dismissed and it ultimately impacts government expenditures or government decisions because everything is a government decision then that first prong of this juris prudence is gone and they'll have to be assessed on the balancing test theory. so i think in terms of whether it firsts into the court's first amendment jurisprudence, it does. because it's how the court deal with the issues and on the other hand if it's inconsistent with the first amendment there's going to have to be massive

restructuring of all of the other areas of the law and interestingly although we're here talking about government as employer and there are some -- there is a very special legal principle there, the principle has been applied not to the aclu and acs but to some organizations that everybody up here cares about, namely bar associations. the supreme court upheld mandatory contributions to bar associations on a similar theory in that the bar associations are performing important duties. this is a regulated profession and therefore those even though some lawyers would prefer not to associate themselves, maybe with their local bar organization, too bad, you still have to pay. now the activities of those bar associations are constricted. they can't engage in sort of political activities. but in terms of engaging in activities relating to the

administration of the legal profession they can do that and lawyers can be forced to pay for it. so if our rule is nobody can be required to pay for anything, that entire line is going to have to be reconsidered which is why one of the briefs was filed i think a dozen or so, maybe two dozen former d.c. bar presidents because that's been a significant issue in the d.c. bar. >> i think it all tees up the issue very nicely and just to -- for those who are a little unclear, there is a case from 1976 versus detroit board of education that approved fair share fees in the public employment context on the grounds that unions have to represent, as designated bargaining agent they have to represent the interest of all the workers in a given bargaining unit whether they're members of the union or not. no one can be required to join a

union as we all know and services the union directly and gives them collective bargaining and grievance and so forth. because the court said otherwise there would be the problem of free riders, people would say i want the benefits but i don't want to play. they insist that it must be overturned. there's no conceivable way they can win. let's talk about the rational. jeff, i bet you have an interesting take on that. why don't you go first. >> sure. so a couple of points about it. i'm starting from a place where i think this is -- there's a very serious associational interest in compelling someone to financially support a union. so you have to view through the

lenses of this has to be so compelling and important to override an individual's right to decide how to direct his or her own money and i think -- i don't think this gets to that level because at the end of the day, i don't think anyone seriously contends that this will cripple unions. all it means is that they'll have a little less money or might need to operate a little more efficiently or sort of change t you know, change things at the margin but i don't think there's any reason to believe the sky will fall and we have several natural experiments to prove that. so the federal work force, there's hundreds of thousands of federal workers who voluntarily join unions, pay dues and are full committed union members even though they're out lawed under federal law. same thing with the u.s. postal service and nearly half of the states where the public and private work forces are in right to work state with no agency fees. so i think, you know, again, i

don't think this is a threat to unions. i think when you look at jurisdictions that don't have agency fees. i'm not going to dispute that it may be a little harder or more pavement pounding to get the fees needed to sort of get back up to the same level of where they were without agency fees but i don't think this is a threat and the only other point i would add on this is i think the free riding rational proves too much because by the same logic all of the people who do not make the political contributions are just free riding off of the members who do pay for the unions political activities and so when a union uses it's political funds to negotiate stricter retirement plan, even those who checked the box and got their political fees back will free ride off of that for lack of a better word. so i think it doesn't hold up

and i think it would justify political speech too. >> how about that? is free riding not really a problem? >> well, there's a lot of assertions in petitioners brief on that side. free riding, these are all pretty basic intro econ type topics but i'm not going to expound on them because we're lucky to have in the record a brief from richard freeman explaining the problem. while it may be related to an objection of what the union does in it's public role often times it's just a result of this

economic pair doradox that if y don't have to pay for something, even something good for you tend not to pay for it. >> america works together.u.s. is a fantastic resource for this case and has all the briefs on it. i think i would leave it at that and turn to anisha. >> some of those government examples are not quite comparable in the sense that states have taken many different approaches to managing their labor relationships and they have implications for the cost of collective bargaining. in one sense it proves the point about free writing because federal employees don't have to contribute for the cost of collective bargaining and so only a third do but on the other side one of the reasons why this doesn't have a dramatic impact on the efficacy of collective bargaining in the federal

context is that the scope of collective bargaining is much more circumscribe. they're not allowed to argue about the number of employees in their work place and then federal law actually subsidizes activities and permitting individuals providing union services to do so on their official work time. so there is a kind of in kind subsidy being provided there. in terms of right to work states it's useful to note that -- it's not helpful to see them in this kind of unitary states have taken different approaches in terms of the issues they put up for collective bargaining and the kinds of employees to collectively bargain and those have implications for the costs. in some of the right to work

states, they actually allow certain kinds of employees like public safety employees or public schoolteachers to collectively bargain because they made the decision that they don't want to face disruption of those kinds of services. and some of those entities and localities have actually filed briefs supporting the respondents in this case notes that although they're in a right to work state, they represent public safety officers and legislative statements were made when the state authorized bargaining. it's too important not to allow these services to continue. so i think free riding is something that is empirically documented in the literature and also just shown by the experiences of the different government employers.

>> andy, you brought abboud into the conversation. do you want to finish this up? >> sure. i'll make a policy point and a legal nerd point. the policy point is, you know, this is really at bottom a case about federalism. different states have made different choices about how they want to structure their collective bargaining or not relationships with their employees. they have gone all the way from some states saying, yes, we'll have exclusive bargaining representatives and fair share fees, to the other end states saying we'll have no bargaining, we'll set the terms of employment unilaterally and that's it that. you want to work for us, that's great. if you don't, no. and i think people here know more than i do, but there are all kinds of varieties in between. and i think one of the issues here is saying when talking 1úid

these services be provided by the state instead of the union, these are choices that the elective officials are making on a policy level about what works best for them. on a policy level, it seems very odd to say the constitution should dictate that unless there is obviously an important constitutional right that would be infringed which takes me back to the legal nerd point which is are we going to change the rules and say in this context there is an important constitutional right? :

>> >> of federalism and issue is a sleeper because the states have made very different choices in this court is notionally respectful of the idea that

the federal system states can diverge we have somebody from the state right here talking about the federalism issue. >> the most important thing to take away is that it doesn't force any particular approach. what it does is enable the people of the state to authorize public employee unions. and it is a negotiating process in states that have chosen not to go that broke -- route of to. and this is something that was alluded to for those policy judgments for those

of the states have to balance to provide public services to insurer to ensure the quality of government services? there are some complicated variables that each state has gone through for itself based on its own experience a handed sonat local conditions to experience that labor unrest that they have adopted the collective bargaining bobbles experience. that didn't have the freedom that would conflict for me

before a lesser of every officials that they have more latitude than rely on government to perform certain basic functions for us so every minuscule issue that can be resolved through the organization to organization that collective bargaining can allow women to grind to a halt and would not be good for anybody that relies on that to provide those services. >> is is -- deserve federal love -- federalism issue here? >> there is but we have crossed that bridge at the very least we need a coherent approach and wants

me except that they're not to minister of work forces we have crossed the bridge allowing the of laboratories of democracy. that these would implicate the first amendment. that everybody has the right for the constitution but not everybody has the right to be policemen and. you know, what i mean. it could have said it as a laboratory of democracy would you hire you are the employer but we don't have that. if you have to join a union to be a public employee. i don't know why texas and arizona says you have to join the republican party to

be a public employee. with federalism and those that were in place for centuries with a massive intrusion to the core functions of state government obviously is important but never stopped from the constitutional right. so pickering unquestionably gives the government tell little more relay at -- the way would regulating but since the union isn't regulating employees it is to represent them soever pickering means from the fact that the government has a little more leeway that you get to the point where the government tells

employees to use subsidized to be adverse. i hear that pickering argument but i don't find it persuasive. >>. >> in this force that is adverse to the government. >> get make sense to return to the perceptions of this case that they have them believe something at has an impression that despite many cases to clearly establish the contrary non-union members are supporting political activity for that patronage about raw political affiliation to

have an obvious citizenship advocacy as connected to workplace issues because system of collective bargaining to put into place but to allow them for certain categories about what we have right now is a great deal of leeway for republican -- up for public employees there will do that for reasons i have described that incredible value of your front line workers, or projects that improve the efficiency in and of quality of that business task. that is one good reason. these things have been vigorously debated in michigan or ohio that they

are shouting from the rooftops. sometimes it will enable changes in in hubei are as citizens. especially in in public services for a launching point in. >> host: benefits. to women of color or lgbt workers. we're still struggling with the enormous wage gap $0.79 earned it if you are a public sector worker and why those want to be sure they are in place to achieve goals that matter to our communities.

>> those that are from the entities that discussed the benefits so they go to that point but one very important thing that they get a that the union's help them identify those efficiencies to help them save money and then with the logistics' logistics', with the local government entities. >>.

>> with that patronage that some kayhan say here is the justification and. but other states can say now. to select a choice within the. and that gives them a law of leeway with respect to this issue. so that is limited to the drastic way. so what pickering says is is essentially they kidnap the way private employers can subject that is the theory. also with the fourth amendment that the beverage can enact in terms of the

intrusion of the privacy interest in a much more significant way. that is the principle. isn't a question about creating a system where the government is financing its enemy that is not have collective bargaining works but to have a well established bargaining partner to lead to labor peace because they will feel represented an aunt with workplace safety and others that our possible with you have someone that has the ability to take on those kinds of things with a financial interest. that is the problem with the a idea that this is voluntary. if you are an employer negotiating with the unions you cannot be sure who knows

what the membership base would be? the union would be foolish to say to take on these obligations assuming we have 90% signed up because who knows what will happen? so that collapses if you have that. one last point about the existential threat. i don't want anyone to think of frederick's friedrichs is a one-off case to be set for generations this is the first as the intermediate step in the next up toward the neck step that is already litigated that violates the first amendment and if you look at the briefs in this case of the petitioners side much of the languages how terrible it is

for individual employees not to bargain themselves with their employer and instead have that funneled through the union's. it is true right now this particular issue there is a mistake not to recognize that those lawsuits will seek to eliminate all the exclusive bargaining representation for government employers and there really will mean the end of unions in that context. >> we're coming to the end of our presentation and going to questions but varian wants to give a thought first. >> something we have taken for granted about the consequences to a eliminate

51 as the prague district as these laboratories how to get this done. the public sector has adopted the model the donnelly rest upon representation but the duty of of a fair representation of everyone in the unit. we are getting into the heart of what that model is and with representation it is reasonable for a public employer to decide that duty should come with a shared obligation to provide the services of are germane to public bargaining. >> we could go on and on and i frequently do. [laughter] but instead we will take your questions. please raise your hand and wait for a microphone.

and please ask a question. >> of point of information when he says there is no practical effects look at wisconsin. where the public employers the membership of the employe unions is down by approximately 40 percent that is a law of free riders. going back to the first amendment i read the briefs it seems they argue the first amendment argument.

how would each of you approached that if you were standing at the podium for the court? >> someone was mentioned by name. you go first. [laughter] >> with wisconsin, one wonders it is an empirical question but it is an exaggeration to say that and tired decline was free riders certainly some of those opposed the union never wanted to be there but some of those were certainly. but it has to be an exaggeration i think going from winter% to less than 100 percent is evidence of free riding. >> how would we decide the first amendment issue?

>> i think it is important to recognize it is not cited in a vacuum there is body of case law concerning government employee -- employees and employers. they rely on that case law the same way we rely when we enter a collective bargaining arrangement they rely on their understanding of what the of what is when determining the parameters of their relationships in this context. that's is one of the big things the petitioners could upend that first amendment case law in a way to leave employers of certain how to deal with various employee activities or different approaches that we have always understood are okay.

>> i don't think there is a first amendment issue in this case. it is workable this president has endured for decades there is a line drawing of a law has not proved difficult corer burdensome some believe they do not have to support those political beliefs and that seems to be what we're talking about here. i would decline to take on the invitation to reclassify the workplace labor-management relationships as entirely political. >> in the interest of time my will agree with what has been said with a workplace

first amendment rights and why not leave that in place. >> i with the supreme court your book. the moderator assumes the questions presented should be overruled and would be dealt with and presided over but the second question whether they opt out or opted and issue would be the one that proved to be what the justices are willing to decide. may we see a much narrower decision than the one you appear to talk about?

>> that is an important question to discuss before hand. >> i am not sure again again, maybe we will get to this later, overhanging this case is a question of overruling of precedent that is on the books 35 years without ever being challenged or applied by several courts over the three and a half decades. my reaction is a law or a little over ruling there is something very serious for the court to consider about the standards that should apply in that context in the extent to which we can talk about stare decisis but to the extent to reconsider things that have been settled is appropriate in

the absence of significant circumstances in there is a law of other contexts in which affirmative action or opting out with respect to constitutional protections is the norm. >> i think of terms will the of court reach that? settled think so. it is the gamble for the petitioners to include the smaller one by including that they give the court that out in case it doesn't want to overturn. so the case that comes to mind is the halliburton case from last year were everyone thought that a fraud on the market very the they would just reconsider the doctrine than ultimately did not go all the way with the intermediate holding.

i don't think it is a high chance but the opt in and opt out issue is there and they may have been if certainly hurt themselves on the broader argument. >> our multi states and the kiss brief to not address the issue to see that as a different ways you choose to structure your bargaining arrangements of what the union can and cannot do in the same way the way the multitudes of states can have exclusive representation some have gone with opted arrangements

and some have not. >> is there any political component in this case to be separated out just with direct assistance to the employee? >> i think the assumption on the case law is that you can bet that is very much challenged in this case. who wants to discuss that? >> from my perspective what gives pause is the notion of grievances but this seems

like something that is more of a direct service to the individual where they have the tangible direct benefit and the response to that to say first the union has a law of power and so it is technically this person's grievance the union will levant's -- advance and the alternative that could turn into a problematic situation with the fee-for-service if you have of a grievance to be processed you will pay the marginal cost. that is the only one that gives me pause but i don't think that is a full obstacle but the most direct service rendered. >> you said earlier we have this division tell us more about that.

>> with that heads encased set forth by the procedures by which public sector unions represent to contact administration and other types of disputes resolutions to separate out those activities that is the of system in place that they do not support those political activities. with regard i feel like i wanted to pick up on a thread. but with regard to grievances those are in place but there are states that want to make the decision they do not want you to have a great deal of

individualized litigation over workplace speech in the great danger is of a danger for the petitioners in a way to prove they are ineffective. to the extent they are a part of the process in the agreement that they make to have a productive work force is like a law of new york or california or kentucky facilitates. >> going back to the benefits of public employers , to say