U.S. Supreme Court Majority Questions the Constitutionality of Forcing Public Employees To Fund Union Activities

Stephen R. McCutcheon, Jr., Attorney at Law

The First Amendment to the United States Constitution embraces not only the right to speak – but the right to not speak. In Harris v. Quinn (Sup. Ct. No. 11-681) the U.S. Supreme Court revisited the question of when the government and a union may agree to compel individuals who do not want to be represented by the union to pay a fee to fund the union’s activities.

In a 5-4 decision, a majority of justices found that the workers – who were not actually employees of the government, but were home health care providers funded by Medicaid – could not be compelled to pay fees to the SEIU for representation. This decision is, in part, a product of the ignominious agreement between Illinois Governor Rod Blagojevich and the SEIU that gave rise to the unionization of the home health care providers, and the SEIU’s deductions directly from their Medicaid payments. Under Illinois law the SEIU had little or no power to affect the terms and conditions of the employment of the home health care providers, and had no authority regarding grievances that a home health care provider may have with a customer. Indeed, the SEIU’s main role appeared to be the deduction of dues directly from the home health care providers’ Medicaid Payments.

This power to force objecting employees – especially public employees – to pay fees to a union as a condition of employment squarely conflicts with the First Amendment right against being compelled to fund speech with which one disagrees. We have seen the fight over compelled speech in a variety of contexts, such as assessments against agricultural producers to fund marketing efforts for raisins, milk, and pork, and the California State Bar’s effort to compel attorneys to pay for lobbying on contentious and ideological issues such as abortion, gun control, and the death penalty. However, the First Amendment impacts are most acute in the context of forcing public employees to pay dues or an equivalent “fair share fee” to a union to fund its activities that are inseparable from lobbying and ideological efforts.

In 1977, the Supreme Court ruled in Abood v. Detroit Board of Education that public employers could require all employees – union and nonunion members alike – to pay fees to the union for the costs associated with representation, so long as they could opt-out of funding ideological activities. In Harris, a majority of justices questioned whether the decision in Abood was on solid constitutional footing, and whether “labor peace” and avoiding “free-ridership” by non-members were sufficient justifications for a law that

forced men into ideological and political associations which violate their right to freedom of conscience, freedom of association, and freedom of thought . . . or a law that forces a person to conform to a union’s ideology.

A majority of the justices determined that while Abood was “something of an anomaly,” and was questionable and erroneous in its treatment of precedent, it need not be overruled as it did not apply to the home health care providers who were essentially private employees subsidized by the state.

While some may view constitutional questions as dry and dusty and having little effect on their day-to-day lives, this decision is a victory for workers and their ability to exercise free choice regarding whether to be represented by a union, and to decide whether to fund union activities that may be denominated for “collective-bargaining purposes” but are often inseparable from political and ideological ends.

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