‘I’ve been forced into this by my love,” Pam Harris tells me over the telephone. “I’m not anti-union,” she adds. Nor, she is keen to note, is she a typical political hero. “It’s all about my son. This is a family issue.”
Harris is the lead plaintiff in the case of Harris v. Quinn, in which, along with seven other litigants, she is challenging an Illinois law that forces her to contribute part of her son’s Social Security benefits to a public-employees’ union. Harris’s son, Josh, has Rubinstein-Taybi syndrome, a severe disability that has left him requiring constant care, and for the treatment of this he receives a modest stipend from the state. Under the rules, Josh has the choice of “contracting” for his care with any of the state’s approved individual providers, and, like three-quarters of the other 5,000 Illinoisans who are in his position, he wanted a family member to be his primary caregiver. Understandably, he picked his mother.
Harris does not object to the background checks or the training that she has had to undergo in order to qualify as a home health-care worker, nor does she have problem with the extensive paperwork she is required to keep each day. “That’s part of the deal,” she tells me, cheerfully. But she has balked at being forced to contract with a union — in this case the SEIU. “Everyone should have the right to say no,” she argues. “This isn’t about money — I’m a mother, and every spare dollar goes to caring for my son. But the public doesn’t want its health-care funds going into unions’ pockets, and neither do I.”
May a State, consistent with the First and Fourteenth Amendments to the United States Constitution, compel personal care providers to accept and financially support a private organization as their exclusive representative to petition the State for greater reimbursements from its Medicaid programs?
Nevertheless, the scope of the suit has become progressively wider than the original inquiry suggests, and, somewhere along the way, the question has become less whether a state can compel home health-care providers to contribute to unions against their will, and more whether a state can compel anyone to do so. Which is to say that we’re finally back to first principles, and 80 years of controversial labor law is now hanging in the balance.
Until now, the Court has performed a delicate balancing act on the question of forced dues, concluding that it is acceptable for the state to demand union contributions from public employees but that the fees may only support the union’s collective bargaining and negotiating functions and cannot be used to promote explicitly political activities. Justice Scalia explained this well in 1991’s Lehnert v. Ferris Faculty Association: Because public-sector unions are required by law to represent all workers within a bargaining unit, Scalia wrote, the state is deemed to have created an “entitlement” for which the union is required to pay. In consequence, the state can establish rules that force those who benefit from that entitlement to contribute to its upkeep — but they cannot compel them to pay for its extraneous activities. As Benjamin Sachs has argued on his OnLabor blog, Americans thus “generally lack First Amendment protection for speech relating to the terms of their employment.”
Still, it is difficult to see how this justification can tally with Pam Harris’s case. Because home health workers are lone providers employed by individuals and not by corporations — and because their effective reimbursement rates are set not by virtue of collective bargaining but by caps established in the law (the union has only a “feedback” role) — the traditional precedents are rendered irrelevant. In Abood v. Detroit Board of Education, the landmark case on this issue, the Court held that compelled contributions were necessary to ensure “labor peace” (in other words, to avoid conflicts that occur when different bargaining representatives represent different employees who are doing the same work) and to prevent “free riders” from taking advantage of unions that are forced to represent all employees, regardless of their membership status. Here, neither of these applies.
Suffice it to say that, if the Court can’t merely rely on previous precedent, it will have to draw a distinction. And when courts are asked to make distinctions, larger principles have a funny habit of coming into play. Indeed, the Cato Institute, which filed an amicus brief on behalf of the plaintiffs, contends no less than that democracy itself is
being turned on its head: the elected representatives for the people of Illinois have chosen a sub-representative for some of the people and given that sub-representative a taxing power. In so doing, they have severely impaired home healthcare workers’ First Amendment right of association and the right to petition the government for a redress of grievances.
It is this argument that William L. Messenger, a lawyer for the National Right to Work Legal Foundation, made yesterday in court. To the utter horror of many labor advocates, Messenger struck at the very heart of the larger question, contending that the Court’s previous distinction between bargaining and political function was a false one and that, because unions’ sole purpose is to affect issues of “public concern” — to represent “a fundamental issue of political belief,” in the words of a seemingly sympathetic Justice Kennedy — it should not be able to compel support through the law in any circumstances.
Messenger has a point. It is true that the rules dictate that when a union is created it has to abide by certain regulations, and it is reasonable, too, for the state to balance out the rights and responsibilities that it has imposed on those charged with doing the negotiating. But while this might satisfy the question of why the state can regulate unions the way it does, it makes no difference to those who want nothing to do with a union at all, nor does it answer the First Amendment claims. The simple fact remains: If the majority of a public employee’s co-workers decide to unionize, he is all of a sudden compelled by the state to contribute to assemblies that he may abhor and, too, to accept representation before the government — not just any ordinary employer — from people whom he does not wish to speak for him. (The union accepts this, claiming that it is necessary to act as intermediary between the health-care worker and the state.) Is this unconstitutional?
Messenger thinks so. Yesterday, a bemused Justice Kagan asked him to clarify his position:
Justice Kagan: Is it fair to say that what you’re suggesting here, your argument, is essentially to say that for 65 years, people have been debating the wrong question . . . because, in fact, a right-to-work law is constitutionally compelled?
Mr. Messenger: . . . Yes, our position is, is that in the public sector, when government is involved, compulsory fees are illegal under the First Amendment.
The Left’s fears that what seemed initially to be a minor procedural case might well spin out of control are by no means unfounded. Kent Greenfield, a professor at Boston College Law School, wrote nervously this week that “some Court watchers are saying that Harris could be the sleeper case of the year.” He is right: That is precisely what it could be. Indeed, as Lyle Denniston of SCOTUSBlog wrote yesterday afternoon, “the demise of public employee unionism was at least on the table for lively discussion” during the oral arguments. “If Justice Antonin Scalia could be persuaded to join in doing it in[,] there just might be enough other votes,” he suggested.
Put another way, if the Court uses this case to reexamine the basic philosophical and legal questions rather than limiting itself to examining the specific case that Harris has brought, then, as Greenfield argues, “the right to unionize will be in shreds.” (Or, perhaps more accurately, the capacity of public unions to force people to fund them will be in shreds.)
Greenfield evidently believes that unions are vital to the national interest. I take the other view: holding, like Franklin Roosevelt, that because the public purse is theoretically infinite, “the process of collective bargaining, as usually understood, cannot be transplanted into the public service.” Either way, we can presumably agree that the Court should at least strike down the provision in the law that so cynically renders Pam Harris a government employee? Judging by the oral arguments, there may well be the votes to do this.
As for the more general question of whether the state may compel its employees to furnish private outfits with contributions? Well, if that is not unconstitutional, it is at the very least immoral. Conservatives intent on bringing an end to this ugly chapter in government overreach should continue their drive to legislate it away in the states — and, all the while, hope modestly as they do so that the Court finally comes through for Josh, Pam, and all else who asks little more from their insolent, presumptuous governments than that they be allowed quietly to opt out from its sordid entanglement with Big Labor.
— Charles C. W. Cooke is a staff writer at National Review.