Beached Whale: The Supreme Court’s Sad Suffocation of Public-Sector Unions

Brandon R. Magner, KLJ Notes Editor[1]

On April 24, 2017, the fate of public-sector unions in America was signed and sealed in a simple procedural move. Mark Janus and his fellow plaintiffs filed for certiorari to the Supreme Court to hear their case against the public-sector trade union American Federation of State, County, and Municipal Employees.[2]

The case, entitled Janus v. AFSCME,[3] represents the Supreme Court’s second crack at the question of whether public-sector unions should be allowed to collect agency fees from non-union members whom they are obligated to represent at the bargaining table.[4] With Justice Neil Gorsuch now installed in the late Antonin Scalia’s seat, the Court is widely expected to rule 5-4 against the unions on First Amendment grounds and institute the so-called “right-to-work” doctrine on a national level.[5]

How did unions—which now represent just 10.7 percent of eligible workers, despite once peaking at a third of the American workforce[6]—reach this vulnerable moment? How is an organizing scheme that was unanimously upheld as constitutional a mere generation ago now on the verge of upheaval? And more specifically, what does the First Amendment have to do with the nuts and bolts of labor law?

Abood and Alito

The basic infrastructure at issue in this line of cases is long established in both private and public-sector workplaces. In non-right-to-work states, a union and an employer are permitted to agree to an “agency shop” arrangement, whereby every employee covered under the collective bargaining agreement—including non-union members—must pay to the union a service fee as a condition of employment. This payment, colloquially known as an “agency fee”, covers the union’s costs of collectively bargaining on behalf of the workers and serves as a critical source of revenue to effectively perform this role. Agency fees are therefore utilized to eliminate “free rider” employees who gain benefits from the union’s bargaining efforts regardless of whether they are members in the union.

The first case to fully scrutinize the constitutionality of this scheme was Abood v. Detroit Board of Education.[7] In that case, D. Louis Abood and several of his colleagues refused to pay dues to the Detroit teachers’ union and opposed collective bargaining in the public sector more generally.[8] Moreover, they disapproved of a “variety of activities and programs [of the union] which are economic, political, professional, scientific and religious in nature . . . and which are not and will not be collective bargaining activities.”[9] Plaintiffs sought for the Court to invalidate Michigan’s agency-shop law on the basis that this arrangement violated their First Amendment right to freedom of association.[10]

The Court struck a compromise. Writing for a unanimous bench, Justice Potter Stewart held that Abood and his colleagues had no constitutional claim against the agency fees that were allotted towards “collective-bargaining, contract administration, and grievance-adjustment purposes,”[11] but the union could not use non-member fees for other matters.[12] Specifically, Justice Stewart determined that the union could not compel “any of the appellants to contribute to the support of an ideological cause he may oppose as a condition of holding a job as a public school teacher,”[13] and that “such [political union] expenditures be financed from charges, dues, or assessments” provided by the union’s members.[14]

This balance seems a sensible one, and indeed it satisfied both the liberal and conservative wings of the Burger Court. Under Abood, a non-union member is still required to cover the costs of non-political union activity that he directly benefits from, such as attorney fees for the next round of negotiations with the non-member’s employer. This arrangement is strengthened by governmental interests in promoting “labor peace” and preventing the free rider problem.[15] However, the non-member’s agency fees could not be used to finance, say, a campaign donation on behalf of the union to a politician of its liking. Such use of the non-member’s fees would potentially run afoul of his First Amendment rights to not be compelled to “associate” with unwanted political activity.

However, Abood has come under fire in recent years from the modern Court’s conservative members. Justice Samuel Alito especially has called attention to Abood’s shaky moorings in a pair of alarming cases, revealing more in case dicta than in his actual holdings regarding labor-law interpretation.

In Knox v. SEIU, Local 1000,[16] the Court ruled against the defendant union on a mostly technical matter of whether it must provide non-members notice of their freedom to opt out of special fees that fell under Abood’s “political purpose” umbrella. However, Justice Alito took the opportunity to criticize Abood’s central holding. “[A]cceptance of the free-rider argument as a justification for compelling nonmembers to pay a portion of union dues represents something of an anomaly,” Justice Alito wrote, which itself relies mostly “on the interest in furthering ‘labor peace.’”[17] Broadly, he found this framework to be “a remarkable boon for unions,”[18] which came about as a “historical accident” rather than through “careful application of First Amendment principles.”[19]

If Knox was a canary in the unions’ coal mine, then Harris was the collapsing tunnel. In Harris v. Quinn,[20] which held that Illinois home health care workers could not be compelled to join a public-sector union (and thus not pay agency fees) because they worked for individuals rather than the state, Justice Alito abandoned any sense of coyness regarding the unions’ constitutional defenses. He spent a good deal of his opinion in Harris prefacing the history of First Amendment challenges to agency fees at the Supreme Court, drawing a fine distinction between potential freedom of association violations in the private sector and those in the public sector.[21] Public-sector unions that bargain with the government have less pretext to justify their compulsory agency fees, Alito posits,[22] and thus “the Abood Court’s analysis is questionable on several grounds.”[23] Alito further accused Abood of misreading precedent and ignoring “practical problems that would face objecting members” of the agency fee.[24] He proceeded to argue why Abood’s “questionable foundations” should not be extended to the health care works at issue in the case before invalidating the Illinois law that sanctioned the agency fees.[25]

As Laurence Tribe has observed, Harris reads like a case that desperately wished to gut Abood but had to wait for another day.[26] Alito’s vitriol practically jumps off the page, but he stops short of explicitly urging Abood’s reversal. As it stands, the conservatives won only a tertiary battle on the merits, but they had set the table for a proper disembowelment in the near future.[27]

The liberal wing of the Court appeared to understand the gravity of Alito’s opinion. Writing in dissent for herself and three other Justices against the majority’s “potshots”,[28] Justice Elena Kagan went to bat for Abood and the compromise it represented. “Our decisions have long afforded government entities broad latitude to manage their workforces, even when that affects speech they could not regulate in other contexts,” Kagan explained, and these cases could not be squared with Alito’s “gratuitous dicta critiquing Abood’s foundations.”[29] Furthermore, Kagan excoriated any comparison of unions to special-interest organizations that subsist off voluntary contributions.[30] Unlike those organizations, public-sector unions are compelled by law to “represent—and represent fairly—every worker in a bargaining unit, regardless whether they join or contribute to the union.”[31] Unions cannot procure any special advantages to its members when at the negotiating table, and Alito and his fellow conservatives thus had no basis to argue that “absent a fair-share clause, a union can attract sufficient dues to adequately support its functions.”[32]

Harris is a classic example of ships passing in the night. Kagan’s dissent, while powerful, is built on the premise that her opponents are arguing in good faith. In reality, opinions like Knox and Harris—whose litigation were funded and argued by the National Right to Work Legal Defense Foundation, which also represented Abood and his co-workers back in the seventies[33]—fall neatly within the greater conservative legal movement that wishes to neuter the collective bargaining power of labor organizations by way of the courts.[34] And in 2016, this dream came dangerously close to realization.


After Justice Alito all but invited the Court to re-visit Abood’s “questionable foundations”, anti-union advocates knew another agency-fee case was ripe for review.[35] And just one term after the Harris decision was handed down, the Justices plucked Friedrichs v. California Teachers Ass’n[36] from the Ninth Circuit and placed Abood directly in the line of fire.

Friedrichs arose from the lawsuit of nine California teachers who declined to join their teachers’ union.[37] The teachers objected to even the “non-political” activities the union undertook in collective bargaining, such as negotiating stronger tenure protections and seniority-based layoffs.[38] This rejection of Abood’s dichotomous compromise meant the Court would have to decide whether any form of dues-collecting from non-union employees in the public sector was a per se violation of the First Amendment.

The case united a constellation of conservative legal groups in anticipation of its potential,[39] and the teachers’ attorneys employed a novel strategy at the lower-court stage in proceedings. Knowing that only the Supreme Court had the authority to overturn Abood, the plaintiffs filed their case in district court and immediately asked the judge to dismiss it.[40] This maneuver expedited the process, which the plaintiffs then successfully repeated after appealing to the Ninth Circuit.[41] Less than 18 months after it was filed in Central District of California, Friedrichs arrived eager and willing on the Supreme Court’s doorsteps—and essentially fresh of any paper trail.[42]

Oral argument of the case showcased exactly why the agency fees at issue were thought to be on life support. During their questioning of California’s solicitor general, the Court’s conservatives seemed to buy the teachers’ position hook, line, and sinker: that there is no line in the public sector between political and non-political activity.

“[W]hat is your best example of something that is negotiated over in a collective bargaining agreement with a public employer that does not present a public policy question?”[43] Chief Justice John Roberts asked at one of the pivotal moments. When the solicitor general proffered that mileage reimbursements rates satisfied Roberts’s condition of a politically-neutral bargaining chip, the Chief vigorously disagreed. “It’s all money. That’s money. That’s how much money is going to have to be paid to the teachers. If you give more mileage expenses, that costs more money.”[44] Added Justice Scalia: “The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition.”[45]

Under whose definition, exactly? Stretched to its logical extreme, anything can be classified as political if all that term means is “something the union bargains for that tangibly affects employees.” Theoretically, there may be some public-school teacher in California who does not wish to be given more money for incurred travel expenses, so therefore her union’s negotiation of this benefit—and more precisely, the money used by the union to cover the legal costs of that negotiation—violates said teacher’s right to freedom of association. Only under this tortured definition of “political activity” would Abood reach its unceremonious death.

However, the conservatives’ victory would have to wait; the untimely passing of Justice Scalia left Friedrichs in a 4-4 deadlock and saved public-sector unions from what seemed a certain loss.[46] The Court could only issue an anti-climactic, one-line opinion reaffirming the Ninth Circuit’s dismissal.[47] And as Senate Republicans refused to vote on Merrick Garland’s nomination to fill Scalia’s seat,[48] the constitutionality of agency fees in the public sector subsequently became one of many legal issues relegated to the outcome of the 2016 presidential election.

Janus and its Shortcomings

The ending to that story, of course, comprised the election of Donald Trump to the presidency and the ascension of Neil Gorsuch to serve as Scalia’s successor. With a 5-4 conservative advantage preserved on the Court, anti-union advocacy groups were once again encouraged to cherry-pick the perfect challenge to Abood and begin anew.[49]

That case, Janus, is almost identical to Friedrichs in posture and effect.[50] It was intended to be a fast-tracked, record-less affair,[51] filed by Illinois Governor Bruce Rauner as a direct challenge to the state law that empowers public-sector unions in Illinois to collect agency fees from non-union member employees.[52] Although Rauner’s complaint was dismissed due to a lack of standing, the Northern District of Illinois allowed public employee Mark Janus—at the behest of the National Right to Work Legal Defense Foundation and other anti-union groups[53]—to intervene and amend the suit.[54]Janus’s suit was subsequently dismissed upon request à la Friedrichs, and the Seventh Circuit did the same on appeal.[55]

Once its writ of certiorari is inevitably granted, the Supreme Court will thus be tasked in Janus with deciding whether the Abood compromise—and more broadly, the very concept of “fair share” dues in the public sector—violates the First Amendment of the Constitution. Reversing Abood, however, makes little sense substantively or cosmetically.

As mentioned, objecting to one’s funding of negotiations over even ideologically-impartial benefits like mileage reimbursements is to object to the very existence of the union. In reality, Americans are compelled to pay for things they do not “agree” with on a daily basis. The collection of agency fees “does not violate the First Amendment rights of nonmembers any more than does compelled contributions to pension and health insurance companies or utility companies or paying one’s taxes.”[56] Moreover, non-members are only compelled to subsidize union activity that they disagree with if they knowingly and willingly work a unionized job. Conservatives and libertarians who frequently urge disaffected and ideologically marginalized citizens to “vote with their feet”[57] should be amenable to the idea that disgruntled non-union employees should find a new line of work rather than exacerbate the free-rider problem. Even Justice Scalia has elaborated on the justifications for fair-share dues in the public-sector at a time earlier in his career:

Our First Amendment jurisprudence . . . recognizes a correlation between the rights and the duties of the union, on the one hand, and the nonunion members of the bargaining unit, on the other.  Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them; or, looked at from the other end, where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost. . . . What is distinctive, however, about the “free riders” who are nonunion members of the union’s own bargaining unit is that in some respects they are free riders whom the law requires the union to carry—indeed, requires the union to go out of its way to benefit, even at the expense of its other interests.  In the context of bargaining, a union must seek to further the interests of its nonmembers; it cannot, for example, negotiate particularly high wage increases for its members in exchange for accepting no increases for others.  Thus, the free ridership (if it were left to be that) would be not incidental but calculated, not imposed by circumstances but mandated by government decree.[58]

Scalia, of course, clearly signaled his abandonment of this logic during the oral argument of Friedrichs, and Justice Anthony Kennedy, the Court’s ostensible moderate,[59] was even more forceful in his badgering of the unions’ attorney: “When you are dealing with a governmental agency, many critical points are matters of public concern. And is it not true that many teachers strongly, strongly disagree with the union position on teacher tenure, on merit pay, on merit promotion, on classroom size?”[60] Kennedy concluded that while “[t]he term is ‘free rider’[,] [t]he union basically is making these teachers ‘compelled riders’ for issues on which they strongly disagree.”[61]

This is where the cosmetic argument—the argument that would justify the timing of Abood’s reversal—falls harrowingly short. When Justice Stephen Breyer spent much of his time during last year’s oral argument preaching the power of precedent,[62] it wasn’t merely a desperate defense of tradition for the sake of tradition. Breyer penned a unanimous labor opinion for the Court less than a decade ago that cited Abood favorably and contained the following language:

The First Amendment permits the government to require both public sector and private sector employees who do not wish to join a union designated as the exclusive collective-bargaining representative at their unit of employment to pay that union a service fee as a condition of their continued employment. . . . The court has determined that the First Amendment burdens accompanying the payment requirement are justified by the government’s interest in preventing free riding by nonmembers who benefit from the union’s collective bargaining activities and in maintaining peaceful labor relations.[63]

This makes the conservatives’ crusade in Knox, Harris, and Friedrichs all the more bizarre. Abood isn’t just a 40-year-old compromise; it is a 40-year-old compromise that was unanimously upheld as recently as 2009. Justice Alito went from ratifying Abood’s central tenets to lambasting its “questionable foundations” faster than the hit show Parks and Recreation premiered and ended.[64] And as Justice Breyer has astutely observed, “six people in a room bargaining about wages, hours, and working conditions” is “pretty far removed from the heart of the First Amendment, and pretty close to ordinary physical activity carried on through words.”[65] What is at the base of the conservatives’ recent change of heart on this seemingly simple concept?

One explanation for the Court’s rightward shift on public-sector unions may be found in the Court’s approach to the First Amendment more generally. Law professor Jedediah Purdy has written at length about conservatives’ recent weaponization of the First Amendment against perceived liberal economic rights.[66] According to Purdy, the embrace of free speech as a promoter of “free-market jurisprudence” explains conservatives’ gutting of several seemingly-tangential regulations,[67] such as those pertaining to campaign finance[68] and pharmaceutical sales.[69] Purdy describes this phenomenon as “neo-Lochnerism”,[70] whereby the Court revitalizes the laissez-faire spirit of the most anti-regulatory period in American history.[71]

The coming devastation of public-sector unions fits well within this revanchist theory. The Lochner era was home to the most anti-union decisions the Supreme Court has ever handed down, culminating in cases such as Adair v. United States[72] and Coppage v. Kansas,[73] which declared that bans on yellow-dog contracts—where an employee agreed, as a condition of employment, to not be a member of a labor union—were unconstitutional at the federal and state level, respectively. Janus, which threatens to break the backs of unions in a more indirect way (by cleaving them from vital funds), is set to join Adair and Coppage in the Anti-Labor Hall of Fame before long.

The Fallout

The impact of Janus is hardly theoretical. States that enact right-to-work laws see a precipitous drop in union membership, exactly as its proponents intended.[74] This stems not just from the vanishing revenue of agency fees, but also the lost dues of cancelled memberships or reluctant joiners; the free-rider option becomes increasingly enticing for current and prospective union members.[75] While roughly a third of all government workers currently belong to a union,[76] that number would surely collapse if the Supreme Court were to promulgate right-to-work across all fifty states. “Hopefully this is a wake-up call for labor to do more internal organizing,” said retired Wisconsin AFL-CIO president David Newby amidst the obliteration of his state’s union infrastructure.[77] “If we don’t, we’re dead.”[78]

But anti-union advocacy groups will likely not stop the assault on labor at Janus. After the Court determines fair-share dues in the public sector are unconstitutional, it will invite legal challenges to other bedrocks of union autonomy.[79] For example, there are cases in the pipeline that argue a union should not be able to bargain on behalf of any worker who doesn’t opt to be a member of that union.[80] Although the Justices declined to hear the most recently-appealed decision in this vein,[81] it feels only a matter of time until the Court begins questioning the union-employee relationship beyond merely monetary matters.[82] After all, it was not long ago that the possibility of Janus seemed remote.

One thing is clear: the traditional means of bargaining and litigation will only continue to erode what little amount of power workers have left in America. In the meantime, public-sector unions will languish like a great beached whale, washed ashore by the tidal forces of conservative jurisprudence and crushed under a heavy carcass of complacency. Time will tell if Janus represents the last gasp of air for a once-proud institution of civic engagement and solidarity, or if it serves as a needed adrenaline shot for the labor movement to fight to the bone for its very survival.

[1] J.D. Expected May 2018.
[2] Chris Opfer (@ChrisOpfer), Twitter (Apr. 24, 2017, 6:10 PM), (“NEW: #SCOTUS gets another shot to decide if public unions can charge “fair share” fees to nonmembers. Janus (7th Cir.) workers filing cert.”).
[3] Tim Yeung, The New Friedrichs Case: Janus v. AFSCME, California PERB Blog (Jan. 17, 2017, 1:11 PM),
[4] Id.
[5] See Moshe Z. Marvit, Labor Opponents Already Have The Next ‘Friedrichs SCOTUS Case Ready to Go Under Trump, In These Times (Jan. 4, 2017, 1:55 PM),; Sean Higgins, Gorsuch will tip Supreme Court on key labor issue, liberals fear, Washington Examiner (Apr. 17, 2017, 12:01 AM),; Dan La Botz, An Injury to All, Jacobin (Feb. 16, 2017),
[6] Dylan Matthews, Europe could have the secret to save America’s unions, Vox (Apr. 17, 2017, 9:30 AM),
[7] 431 U.S. 209 (1977).
[8] Id. at 212-13, 214.
[9] Id. at 213.
[10] Id.
[11] Id. at 232.
[12] Id. at 232-37.
[13] Id. at 235.
[14] Id. at 236.
[15] See id. at 224.
[16] 567 U.S. 298 (2012).
[17] Id. at 311 (emphasis added).
[18] Id. at 312.
[19] Id.
[20] 134 S. Ct. 2618 (2014).
[21] Id. at 2630.
[22] Id. at 2630-32.
[23] Id. at 2632.
[24] Id. at 2632-34.
[25] Id. at 2638-44.
[26] Laurence H. Tribe, In attacking unions, Roberts court forgets a key lesson of the New Deal., Slate (June 30, 2014, 3:04 PM),
[27] See id. (“Just as Knox portended Harris, Harris could well portend a far broader decision in a future case.”).
[28] Harris, 567 U.S. at 2645 (Kagan, J., dissenting).
[29] Id.
[30] Id. at 2656.
[31] Id.
[32] Id. at 2657.
[33] Foundation Supreme Court Cases, National Right to Work Legal Defense Foundation, (last visited May 9, 2017).
[34] See generally Chris Maisano, The Road to Friedrichs, Jacobin (Jan. 11, 2016),
[35] See Brian Mahoney, Conservative group nears big payoff in Supreme Court case, Politico (Jan. 10, 2016, 6:35 ET),
[36] Friedrichs v. Cal. Teachers Ass’n, 2014 U.S. App. LEXIS 24935 (9th Cir. Cal., Nov. 18, 2014).
[37] Mahoney, supra note 35.
[38] Id.
[39] Id. A non-exhaustive list of Friedrichs’s supporters—be it through advising, funding, or filing of amicus curiae—included the Cato Institute, the Manhattan Institute, the Institute for Justice, the Beckett Fund for Religious Liberty, the National Right to Work Legal Defense Foundation, the Goldwater Institute, the National Federation of Independent Businesses, the Freedom Foundation, the Atlantic Legal Foundation, and the Friedman Foundation for Educational Choice.
[40] Id.
[41] Id.
[42] For an analysis and criticism of this scheme of “court-rushing”, see Catherine Fisk, Symposium: The Friedrichs petition should be dismissed, SCOTUSblog (Aug. 26, 2015, 2:51 PM), Primarily, the strategy raises concerns over building a necessary factual record for the Justices to knowledgeably discern. See id.
[43] Oral Argument at 45:00, Friedrichs v. California Teachers Ass’n, 136 S. Ct. 1083 (2016) (No. 70-18),
[44] Id. at 45:15.
[45] Id. at 43:53.
[46] Adam Liptak, Victory for Unions as Supreme Court, Scalia Gone, Ties 4-4, N.Y. Times (Mar. 29, 2016)
[47] Friedrichs, 136 S. Ct. at 255 (“Judgment affirmed by an equally divided Court.”).
[48] See generally Brandon R. Magner, The Greatest Justices That Never Were, Ky. L.J. Blog (Sept. 26, 2016),
[49] See Marvit, supra note 5.
[50] Id.
[51] See id.
[52] Janus v. AFCSME, Council 31, 851 F.3d 746 (7th Cir. 2017).
[53] Marvit, supra note 5.
[54] Id. at 747-48.
[55] Id. at 749.
[56] Fisk, supra note 42.
[57] See, e.g., Ilya Somin, Is voting with your feet selfish? Does it matter if it is?, Wash. Post: The Volokh Conspiracy (Apr. 25, 2017),
[58] Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 556 (1991).
[59] Ian Millhiser, On Economic Justice, Justice Kennedy Is No Moderate, ThinkProgress (Apr. 2, 2012),
[60] Oral Argument at 40:37, Friedrichs v. California Teachers Ass’n, 136 S. Ct. 1083 (2016) (No. 70-18),
[61] Id. at 41:06.
[62] Id. at 25:40 (“[W]hat is it, in your mind, that you can say from the point of view of this Court’s role in this society in that if, of course, we can overrule a compromise that was worked out over 40 years and has lasted reasonably well[?]”).
[63] Locke v. Karass, 555 U.S. 207, 213 (2009); see also Linda Greenhouse, Scalia’s Putsch at the Supreme Court, N.Y. Times (Jan. 21, 2016),
[64] See Josef Adalian, How Parks and Recreation Managed to Survive for 7 Seasons, Vulture (Feb. 23, 2015, 5:00 PM),
[65] Oral Argument at 31:27, Friedrichs v. California Teachers Ass’n, 136 S. Ct. 1083 (2016) (No. 70-18),
[66] See, e.g., Jedediah Purdy, Neoliberal Constitutionalism: Lochnerism for a New Economy, 77 Law & Contemp. Probs. 195, 198-203 (2014).
[67] Id.
[68] See Citizens United v. F.E.C., 558 U.S. 310 (2010).
[69] See Sorrell v. IMS Health Inc., 564 U.S. 552 (2011).
[70] Purdy, supra note 64, at 202.
[71] Id. at 196-97 (sketching the parameters of the Supreme Court’s “Lochner era”).
[72] 208 U.S. 161 (1908).
[73] 236 U.S. 1 (1915).
[74] See David Moberg, How Unions Can Grow Stronger in the Wake of Right To Work, In These Times (Mar. 16, 2015),
[75] Id.
[76] See Bureau of Labor Statistics, Union Members Summary, U.S. Dep’t Labor, (2016), (providing data about union membership in 2016).
[77] Moberg, supra note 74.
[78] Id.; see also Dan Kaufman, The Destruction of Progressive Wisconsin, N.Y. Times (Jan. 16, 2016),
[79] See Moshe Z. Marvit, When Scalia Died, So Did ‘Friedrichs’—And an Even Grander Scheme to Destroy Unions, In These Times (Feb. 15, 2016, 6:01 PM),
[80] See, e.g., D’Agostino v. Baker, 812 F.3d 240 (1st Cir. 2016).
[81] Lawrence E. Dubé, Justices Won’t Hear Massachusetts Child-Care Aides’ Case, Bloomberg BNA: Daily Labor Report (June 13, 2016, 7:30 PM).
[82] See Marvit, supra note 79 (“[Agostino] provided a glimpse of what the likely post-Friedrichs plan of attack would have been: After you win on the dues front, go after membership.”).