by Gabriel J. Chin, Professor of Law, UC Davis School of Law
* This post is part of a series examining Harris v. Quinn, for which the high court will hear oral argument on January 21.
I was in a labor union and have been on strike; I happily paid my dues to Local 2325 of the UAW because I thought my brothers and sisters greatly benefitted from collective bargaining. But that is just my opinion, and no group of workers must be represented by a union unless a majority agrees, and no individual worker need join a union at all. But those who decline to become a member of a union that a majority of their fellow workers chose often must pay an agency fee, to reimburse the union for benefits which accrue to all.
That’s essentially the issue in Harris v. Quinn, which Kent Greenfield has already aptly described as a potential sleeper on the Supreme Court’s docket: Are workers’ First Amendment rights impaired, not by being forced to join a union (which they are not) but by being forced to pay for collective bargaining (which they are)? The Court could use the case to limit the ability of government workers to unionize, to eliminate any required payment of agency fees by non-members benefitting from the contract, or undermine the principle, embodied in the National Labor Relations Act, of exclusive representation by a single union. All of these would be unfortunate, and would require repudiation of a line of Supreme Court decisions dating to the unanimous Railway Employees v. Hanson, 351 U.S. 225 (1956), which found no problem in a federal law allowing negotiation of contracts requiring all covered workers to pay union dues, rejecting dissenting workers’ claims that mandatory payment of dues compelled "ideological and political associations which violate their right to freedom of conscience, freedom of association, and freedom of thought protected by the Bill of Rights."
Harris involves home health care aides provided by the state of Illinois to certain ill people through Medicaid. The case is maddening in a number of ways. The plaintiffs—represented by, among others, former Acting Solicitor General Neal Katyal—insist that the workers at issue cannot be considered government employees, even though they get paychecks and health benefits from the state, must meet qualifications set by state regulations, and perform duties as required by those regulations and by individual social service supervisors. Although the aides are “hired” and “fired” by the individual patients they serve, that is only so because the state in its generosity has delegated that authority. The patients, who pay nothing both because of the rules of the program and because they are indigent, are not in any ordinary sense “employers.”
The core issue, though, is whether payment of an agency fee somehow violates the First Amendment. The idea that paying an agency fee is forced association in a political sense seems wrong. The dissenting workers are not union members, none of their payments may be used for political or advocacy activities, and most importantly, no reasonable person misunderstands the message of non-endorsement sent by refusal or failure to join a union. Non-joiners are not forced to associate, other than in the sense of paying money.
The plaintiff’s brief also claims a First Amendment violation in that the Union has become the exclusive voice of all home health care aides on a matter of public concern, namely, the operation of Medicaid as it affects home health care aides. If true, that would be significant, but it is erroneous. Home health care aides may individually and collectively communicate their views to the state and to Congress; they may start a PAC or their own political party, and lobby for laws or regulations on any aspect of Medicaid, including the terms and conditions of the employment of home health care aides. Their political speech on all issues is unfettered.
What is restricted is their ability to bargain individually, but it is not clear how that is a legal injury. The people of Illinois by statute have chosen to bargain only with one entity most preferred by the workers. Unless there is a constitutional prohibition on states offering uniform terms and conditions for particular job categories, either unilaterally or after collective bargaining, I do not see a reasonable constitutional basis for a complaint that workers’ desire to negotiate individually is unavailing. I have the right to try to negotiate my own income tax rates, but the government has no obligation to play along. As a practical matter, no employer hiring large numbers of workers into a single job category is likely to negotiate in detail with each one; it is not the union which stands in the way of home health care aides having a wide range of individualized contracts, it is economic and business reality.
So the dissenting workers are not forced to associate and have not lost their rights of free speech, other than to the extent that they have to pay an agency fee. Is payment of money to the government a First Amendment violation? I just do not see how (Will Baude would also like an explanation). It is true that the money ultimately goes to a private entity, a union, but that is true of many tax impositions; for example, the penalty associated with the Affordable Care Act may subsidize the purchase of insurance by other private citizens. Having just paid my property taxes, it is clear that some of my dollars will soon be in the bank accounts of private charter schools, private government contractors, private lecturers, and private student groups, among others, some of whom may do things with it that I do not like. The government may make me contract with a government-approved private insurer, which may well be owned by a billionaire with strong political views, if I want to register a car or have a professional license. We just do not have the right, in a complicated, mixed economy, to insist that none of our dollars go to people or institutions with which we disagree.
Ironically for an originalist Court, many of the justices are quite constitutionally innovative. But to reverse, the Court will have to explain why what is happening in Illinois is different from analytically indistinguishable exactions which the Court will not be willing to invalidate. The Court was right almost sixty years ago in Hanson when it dismissed this issue by concluding, “On the present record, there is no more an infringement or impairment of First Amendment rights than there would be in the case of a lawyer who by state law is required to be a member of an integrated bar.”