Public Employees Tell Supreme Court: Union Dues Violate Free Speech

February 9, 2014

Last week, the Supreme Court began hearing the case concerning free-speech infringement, brought by Illinois’ nonunion home care workers, who object to paying their ”fair share” of union dues. A 5-to-4 conservative decision could overturn a 1977 law, and impact 65 years of established labor law. Both conservative and liberal justices delivered a striking contrast of impassioned questions, raising the drama in what might seem like a dull case, thus revealing what is truly at stake for public unions. A decision is expected this summer.

The 1977 Abood v. Detroit Board of Education decision established the right for public unions to collect a portion of the dues that go toward bargaining expenses, from nonunion employees, when a pay raise results from the union’s collective bargaining. However, in this Harris v. Quinn case before the court, William Messenger, counsel for the workers, argued a finer, First Amendment point. He stated that any negotiations with the government, even when the government is an employer, is political, which permits nonunion employees to “opt out” of paying union dues (and from receiving higher wages), under freedom of speech.

Conservative Justices Hint to Expanding Scope of Case

Statements and questions by conservative Justices Samuel Alito and Antonin Scalia indicate that they may be intending to broaden their consideration in this case to include the constitutionality of any public union representation, which could overturn or weaken labor laws going back to the Taft-Hartley Act of 1947. Recently, numerous states have adopted right-to-work laws, permitting employees to opt out of public unions. Wisconsin received the most publicity among these right-to-work states, when it stripped public employees of their collective bargaining rights in 2011. Debra Strege 2

Calling Messenger’s First Amendment argument, a “comprehensible argument,” Scalia compared the right to “opt out” of paying union dues to the right to oppose Planned Parenthood. Alito added that collective bargaining in the public sector violates individual free speech because it influences government policy. He added, “What I don’t understand is why the union’s participation in this is essential.”

Solicitor General Donald Verrilli, counsel for the State of Illinois, said earlier rulings had already established that, like any employer, the government has a right to make “effective and efficient” business decisions that lie outside of public policy and, therefore, exclude employment contracts from the First Amendment standard.

The home-care worker contract is estimated to have saved the State if Illinois $630 million, by increasing pay, reducing turnover and keeping more people with disabilities in their own homes, But Alito said he suspected that the contract was “payback” by former Governor Rod Blagojevich for SIEU’s campaign contribution. Verrilli responded that a “large bipartisan majority” of the Illinois Legislature voted for the law, adding that the legality of the state law was not an issue before the court.

Liberal Justices Curb Conservatives with Collection of Questions

It appeared that Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor may have learned from the 2010 Citizens United decision, and crafted a collection of questions from the left side of the court, to keep the five conservatives from broadening the scope in this case. In Citizens United, Chief Justice John Roberts’ expanded the court’s consideration of whether a film about a presidential candidate was a campaign ad, and Debra Strege 3

overturned two major decisions in modern campaign-finance law, that removed restrictions on private campaign donations to support or oppose a political candidate.

Ginsburg ask Messenger pointedly if his underlying intention was for the court to consider the constitutionality of public employee collective bargaining. He evaded the answer but replied, “Yes,” when she asked if he was arguing that compulsory union participation was unconstitutional. She then asked him to clarify if he was arguing against public unions in this case, or just the required dues. He replied, “For now,” just the dues.

Breyer added that Messenger was asking the court for a “new, special labor law for government employees” using “the First Amendment as a weapon.”

Kagan’s words were more direct, calling the case “a radical restructuring of the way workplaces are run,”

Some analysts think that Scalia might be the swing vote on this one. For now, it’s anyone’s guess.

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