The Supreme Court must protect the First Amendment from Unions

(Published in The National Review Online, February 29, 2012)

By David B. Rivkin, Jr. and Andrew Grossman

Theresa Riffey provides help around the home for her brother, a quadriplegic, and receives a small stipend from Illinois’s Medicaid program for her efforts, saving the state the cost of providing full-time care. Illinois law requires her to pay a portion of her check every month to an affiliate of the Service Employees International Union (SEIU). The Supreme Court will soon decide whether to hear her case that asks on what basis, besides raw political power, a state may compel independent home-care workers and other similarly situated self-employed persons to support and associate with a labor union against their will. For the sake of workers’ First Amendment rights, it should take the case.

“Organized labor” brings to mind railroads, factories, and government offices, but the labor movement’s biggest recent gains have been in the home. Led by SEIU, unions and their political allies have pushed through executive orders and legislation in a dozen states to “organize” home-care workers, such as personal assistants and sitters, by deeming them state employees for collective-bargaining purposes alone.

California was the trailblazer in this campaign, with SEIU first trying to convince the state courts to designate Los Angeles County home-care workers as county employees. Having lost the battle in the courtroom, SEIU commenced lobbying the California legislature to pass a law requiring each county to establish special government entities that would serve as an employer of record for home-care workers. A statute was enacted in 1992, and, within a few years, SEIU began representing over 70,000 Los Angeles County home-care workers.

But it was Illinois, under Governor Rod Blagojevich, that provided the model that has been copied across the nation. By executive order, he instituted collective bargaining statewide for home aides for the disabled, even though these workers — often family members — are not hired, fired, or supervised by the State of Illinois, do not work in state facilities, and are not considered to be state employees for any other purpose, such as health benefits or liability. That order was later ratified in legislation.

The Illinois law has served as a roadmap for other states’ lawmakers to circumvent the First Amendment’s limitations on compelled association and speech and thereby bolster the ranks and finances of their union supporters. Indeed, there has always been a tension between the First Amendment, which protects all Americans’ rights to free association and to speak or remain silent, and labor laws that compel all workers subject to a collective-bargaining agreement to support financially a union’s advocacy on their behalf, even if they dissent from the union’s goals and message.

The consistent rationale for the union exception to First Amendment freedom is “labor peace,” a term that harkens back to the violent strikes and lock-outs of the 1930s. But laws such as California’s and Illinois’s turn this narrow exception into a license to compel speech and association in any instance. Is labor peace really at issue when there is no workplace, no employer property is at risk, and workers’ only relationship to their putative employer is payment for services rendered to a third party? If so, doctors and lawyers who are often paid by state governments for services rendered to indigent clients or, for that matter, any person who accepts a government benefit or payment — which is to say virtually everyone — could be forced to kick back a portion to organized labor to fund speech with which they disagree.

Moreover, union representation is a lousy deal for independent workers, who are forced to subsidize a union that is powerless to improve their conditions of employment. The benefits of these cynical laws flow solely to the unions and the politicians they support. So far, however, lower courts have given the states a pass on these points, reasoning that any asserted employment relationship — even an essentially fictional one — is sufficient to compel workers to associate with a union and pay for speech from which they dissent.

“First Amendment values are at serious risk,” Supreme Court Justice Anthony Kennedy has written, “if the government can compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that it favors.” Only an “overriding” and legitimate purpose, he continued, “allows any compelled subsidy for speech in the first place.” Here, Governor Blagojevich and the Illinois legislature’s sole purpose was the height of illegitimacy: appropriating spoils for their strongest political backers.

The Supreme Court should take Ms. Riffey’s case. Unless it makes clear that compulsory support of unions is limited to circumstances where it is necessary to preserve labor peace, more workers, in more fields, will see their basic First Amendment rights trampled, without securing any benefits in the process. No American should, or could, be treated in this fashion.

— David B. Rivkin Jr., and Andrew M. Grossman are litigators specializing in constitutional law in the Washington, D.C., office of Baker & Hostetler LLP. David Rivkin served at the Department of Justice and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. They filed a brief on behalf of the non-profit Cato Institute in support of Ms. Riffey’s challenge.


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