1. Even pro-union politicians used to think public sector unionism was too radical.
Long after the pro-union monopoly National Labor Relations Act (NLRA) was adopted in 1935, even strong supporters of this statute rejected the appropriateness of attempting anything analogous in federal, state, or local government.
For example, in 1937, President Franklin D. Roosevelt, who just two years earlier had publicly endorsed and signed the NLRA, wrote a letter to a government union official explaining it is “impossible for administrative officials to represent fully or bind the employer” in dealings with “Government employee organizations” because “the employer is the whole people . . . .”
2. Politicians later empowered private groups to tax government employees.
In the late 1950s and early 1960s, politicians like Robert F. Wagner Jr (New York City mayor and son of the Senate sponsor of the NLRA), Gaylord Nelson (Wisconsin governor), and finally President John F. Kennedy opted to bring monopoly unionism to the public sector.
Wagner, Nelson, and Kennedy all sought to strike a balance by resisting the wholesale imposition of NLRA-style unionism on the public sector. Case in point: Neither the executive order Wagner finally got around to issuing in 1958, nor the statute signed by Nelson in 1959, nor Kennedy’s 1963 federal executive order authorized Big Labor to extract any forced union dues from public servants who chose not to join.
However, today more than 20 states have laws explicitly authorizing forced financial support for unions for some or all categories of public-sector employees. And the vast majority of unionized government workers in the United States reside in these Big Labor-dominated states.
3. Government union bosses’ forced dues powers largely based on a false premise.
It was in 1977’s Abood v. Detroit Board of Ed that the high court originally sanctioned the “undeniably unusual” privilege for government union officials to force public employees, including nonmembers, into paying union dues and fees in jurisdictions where union officials are legally empowered to represent all front-line employees in a workplace.
Justice Potter Stewart, while writing for a six-justice majority, theorized that if union officials claim to be the exclusive representative of all employees in a bargaining unit, they must also have the option to force unwilling workers to pay union dues or fees. Otherwise, he said, such workers would get a so-called “free ride” on the “benefits” of the union’s bargaining and contract administration.
4. Federal courts have long admitted forced dues for government employees is constitutionally problematic.
Federal courts have repeatedly admitted that, to a greater extent even than government-authorized forced union dues in the private sector, compulsory union dues or fee payments to government unions (often euphemistically referred to as the “agency shop”) are constitutionally problematic.
Justice Antonin Scalia was particularly blunt in his opinion for a unanimous Supreme Court seven years ago in Davenport v. Washington Education Association. Scalia observed that, while the judiciary has tolerated government forced unionism in a series of cases, it has always done so reservedly:
[I]t is undeniably unusual for a government agency to give a private entity the power, in essence, to tax government employees. . . . [A]gency-fee cases [do] not balance constitutional rights . . . because unions have no constitutional entitlement to nonmember-employees’ fees.
5. In recent developments, mothers took on a governor and politically-connected union.
In early fall 2009, Pam Harris, a resident of suburban Chicago and mother of a young adult son with severe developmental disabilities, received a form letter from agents of Illinois Gov. Pat Quinn informing her that, as a care provider for her son in Illinois’ Disabilities Program, she now could cast a mail-ballot vote regarding which of two unions would be installed as her monopoly-bargaining agent in her dealings with the state.
On June 29, 2009, Quinn had signed an executive order designating 4,500 individuals who offer in-home care to disabled persons as “public employees,” thus rendering them vulnerable to unwanted union organizing. However, the scheme only designated providers as public employees for the purposes of unionization, leaving the homecare recipients as the employers for all other aspects of the providers’ work.
If the Supreme Court had found the scheme to be constitutionally permissible, the implications would have been enormous. Doctors who accepted Medicare or Medicaid could have been forced by gubernatorial executive order or state legislation to accept a particular private organization as their lobbying agent. Moreover, doctors could have been forced to pay mandatory dues and fees to such an organization.
Similarly, impoverished parents who participate in food stamps could have been forced to join or pay fees to a government designated lobbying agent.
6. Harris and other providers blocked an expanded shakedown.
Over the course of the rigged unionization “election” in late 2009, Harris and other parents pooled their money to print and distribute a flyer countering the Quinn team’s propaganda. The independent-minded providers’ shoestring effort succeeded. Providers ultimately voted two-to-one for “no union.” Nevertheless, Service Employees International Union (SEIU) and American Federation of State, County, and Municipal Employees (AFSCME) union officers continued to press ahead with their efforts to gain monopoly-bargaining privileges over the caregivers in the program.
Meanwhile, an estimated 25,000 Illinois at-home caregivers in a similar, but much larger, Medicaid waiver program were already being forced to pay union dues as a condition of receiving state assistance under a scheme launched by then-Gov. Rod Blagojevich (now imprisoned) and subsequently codified by state legislators in 2003.
In 2010, Harris and seven other home care providers filed suit. In written briefs and oral arguments presented to federal district and appellate courts and, finally, the Supreme Court, National Right to Work Foundation attorneys contended on the plaintiffs’ behalf that, because the state of Illinois was not their common-law employer or their sole employer, the Abood excuse for compelling employee financial support for unions did not apply to them.
7. The Court’s Abood majority acknowledged that forced union dues violate workers’ freedom to associate.
Concerns about the potential inequities resulting from “exclusive” union representation are one plausible reason for abolishing it in public-sector workplaces. But they are no justification for forcing nonmembers to financially support a monopolistic union. And the oral arguments in Harris v. Quinn, the first direct challenge to the constitutionality of government-sector forced union dues since Abood, highlighted one key reason why not.
The Abood majority opinion conceded up front:
To be required to help finance the union as collective-bargaining agent might well be thought . . . to interfere in some way with an employee’s freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.
The opinion proceeded to try to square this admission with support for the permissibility of forced financial support for a government union under the First Amendment by simply assuming that all public employees, including union nonmembers, who are subject to union monopoly bargaining benefit thereby.
8. Union lawyers admit public workers may be forced to pay a union to ‘make an argument’ with which they disagree.
During the Harris oral arguments this January 21, SEIU lawyer Paul Smith (who also represented Quinn) could not help but tacitly acknowledge, first of all, that significant numbers of nonmembers are made economically worse off by “exclusive” union representation.
At one point in the oral arguments, Justice Samuel Alito cited the example of a “young employee” who is “not very much concerned at this point about pensions,” but “realizes there’s a certain pot of money, and it’s either going to go for pensions or it’s going to go for salary at the present time.” Alito went on to ask Smith:
So that employee who’s not a member of the union has to pay for the union to bargain with the–the State to achieve something that’s contrary to that person’s interest. But you say that person is a free rider.
Smith’s response: “Yes, your Honor. . . .”
9. A Court majority struck down the scheme, but left government union bosses’ forced dues powers intact.
In his 39-page opinion of the Court, Alito basically concurred with the plaintiffs that Abood should be overruled. But rather than actually overrule it, Alito and the four other justices who joined in his opinion merely refused to allow it “to be extended to those who are not full-fledged public employees . . . .”
In opting not to overturn Abood, the Harris majority may merely have been abiding by the widely (albeit far from universally) accepted rule that “courts should not decide more than the occasion demands.”
However, the Harris opinion strongly suggests that Abood was wrongly decided, calling its “analysis questionable on several grounds.”
10. The Harris dissent matters, too.
Judging by the strenuous effort to shore up Abood in Justice Elena Kagan’s Harris v. Quinn minority opinion, she and her fellow dissenters do not believe it is too late to save the precedent that has protected forced union dues in the government workplace for nearly 40 years.
Kagan’s dissent did not completely ignore the specific issue of forced unionism in Illinois’s Rehabilitation Program that was being challenged in Harris. For example, she insinuated the plaintiffs ought to be grateful for SEIU-boss bargaining, which, she insisted, was responsible for the fact that the “wages” of home-care assistants “have nearly doubled . . . in less than 10 years . . . .”
Not surprisingly, Kagan’s uncritical rehashing of SEIU propaganda left out key facts, including the most important of all: The higher “pay rates” for home caregivers for which union bosses purport to fight may, if achieved, leave patients with less money to cover the other expenses they incur while being treated at home.
In the full-throated defense of Abood to which she devoted the bulk of her dissent, Kagan also insisted that government-imposed restrictions on public employees’ freedom to disassociate from a union should not be subject to “strict scrutiny,” the technical name for a type of judicial review in which a law is upheld only if it advances a “compelling governmental interest” and is “narrowly tailored” for that purpose.
11. The dissent runs contrary to years of federal court precedent.
What Kagan and the other dissenters apparently forgot is that federal courts have already repeatedly ruled that the government as employer does not have wide “constitutional latitude” to limit the First Amendment freedom of public employees to join a labor union. Forty-five years ago this February, a federal court overturned North Carolina’s statutory provisions restricting municipal employees’ right to join aid and assist labor organizations, finding them to be “an abridgment of the freedom of association protected by the First and Fourteenth Amendments of the U.S. Constitution.”
This conclusion by a three-judge panel on the U.S. District Court for the Western District Court of North Carolina quickly gained wide acceptance in federal courts across the country. Several courts in other circuits also explicitly affirmed that the First and Fourteenth Amendments prohibit laws and policies curtailing front-line employees’ personal right to join and form a union.
Moreover, other established court precedents make it clear that, if an employee’s choice to associate with a labor union is constitutionally protected, his or her choice not to associate must be similarly protected, since the government has no legitimate authority to “prescribe what shall be orthodox” in the realm of politics, conscience and ideas. Consequently, since government restrictions on the individual public employee’s freedom to join a union have been subject to the judiciary’s “strict scrutiny” test for nearly half a century, restrictions on the freedom not to join a union should have to pass this test.
12. Millions of public servants remain subject to compulsory unionism.
Thanks to the Harris decision, an estimated 500,000 home-care providers nationwide who are currently being forced to pay dues to a union may have a free choice in the near future as the 14 states that currently have home-care compulsory-dues schemes like Illinois come into compliance with the ruling.
In Illinois alone, where roughly 25,000 home caregivers were annually forced to pay union dues or fees, Big Labor could lose as much as $11 million a year. Nationwide, government union chiefs could be out as much as $80 million annually.
Of course, this is but a pittance compared to the billions of dollars in annual losses the union hierarchy would have faced if all of the roughly 5.8 million unionized public employees in non-Right-to-Work states were suddenly free from the threat of termination for refusing to bankroll an unwanted union. Encouragingly, the High Court in Harris did cast into grave doubt whether state laws and policies authorizing forced union dues from public servants are permissible under the First Amendment.
However, at least for the near future, the task of actually eliminating these constitutionally dubious statutes and policies has been left to state legislative and executive officials.
About the Author: Stan Greer is the National Institute for Labor Relations Research’s senior research associate. This article originally appeared in The Federalist, and is republished here with permission from the author.
Summary: Two current cases offer the U.S. Supreme Court opportunities to stop abuse. The National Labor Relations Act declares that “encouraging the practice and procedure of [monopolistic] collective bargaining” is “the policy of the United States.” Federal courts have often treated that declaration as if it authorized union officials to do whatever they deem necessary to bring employees into unions. Fortunately, in one case heard in November and another set to be heard this month, the U.S. Supreme Court may identify some important limits on union officers’ special legal privileges.
The National Right to Work Legal Defense Foundation provides legal representation to Americans who are fighting compulsory membership in labor unions, or compulsory payments by workers to those unions. Currently, the Foundation has two cases before the United States Supreme Court, the Mulhall case and the Harris case. Depending on the outcomes, these cases could have significant impacts on people’s right to choose whether to join labor unions.
First, let’s look at the case of UNITE HERE Local 355 v. Mulhall, which was heard recently by the U.S. Supreme Court. The case stems from a so-called “neutrality” deal forged in 2004 between hotel workers’ union bosses in UNITE HERE and an employer, Mardi Gras Gaming. Mardi Gras is the operator of a dog racetrack and a casino located in Hollywood, Florida. UNITE HERE is a union that represents mostly hotel workers and those in related fields such as food and laundry services.
Under the terms of the neutrality deal, Mardi Gras agreed to help officials of Local 355 of UNITE HERE secure monopoly-bargaining power over the company’s front-line employees. In exchange, the union brass agreed to divert a substantial sum of money from their treasuries, laden with workers’ dues, to back a casino gambling ballot initiative that the company wanted passed. Union bosses also promised not to picket or strike Mardi Gras as they sought to unionize its employees.
After the deal was reached, without employees’ input, it became clear that many of them did not want to be unionized by UNITE HERE. One employee, groundskeeper Martin Mulhall, was especially determined to prevent UNITE HERE from being imposed on him and his fellow workers. Mulhall was confident that, provided that employees had the opportunity to make their choice in the privacy of a voting booth, Mardi Gras’ front-line employees would never vote to make UNITE HERE Local 355 their monopoly-bargaining agent. He was chagrined to learn that, under the terms of the “neutrality” deal, UNITE HERE could unionize the workplace without having to face a secret-ballot election first.
Mardi Gras had acquiesced to “card check” recognition of Local 355. That is the sort of thing many businesses have done in recent years in order to avoid Big Labor harassment and negative public relations, or to get something in return from the union. The “card check” process essentially eliminates the secret ballot. Under the longstanding federal court interpretation of NLRA Section 9(a), union organizers may acquire monopoly-bargaining power by collecting signed “union authorization cards,” if the employer acquiesces. Consequently, under the peering eyes of union organizers individual workers may be intimidated into unionizing—signing not just themselves, but all of their nonunion fellow employees, over to union officials’ control.
Mulhall believed that UNITE HERE organizers would never be able to win over a majority of employees without coercion, but that absent the protection of a secret ballot, the union could prevail if given a “card check” process and the opportunities for intimidation it would provide.
That’s especially true because there’s little chance that union professionals would share a critical fact with hesitant employees: that the cards, if signed by a majority, bring the union in automatically, with no secret-ballot vote ever required. Under pressure from union organizers, employees often sign such cards because they incorrectly assume—or are dishonestly told by the union—that by signing they are just calling for an election in which they will later have a chance to vote against the union.
Mulhall was determined to stop the “card check” scheme, but he didn’t know how. He reached out to the National Right to Work Legal Defense Foundation, and in 2008 foundation attorney Bill Messenger filed, on Mulhall’s behalf, a federal suit alleging that key provisions of the “neutrality” deal between Mardi Gras and Local 355 violate the law. The deal has not (as yet) led to unionization of Mardi Gras employees; the company eventually concluded the deal was illegal and repudiated it. I say “as yet” because Local 355 has attempted to enforce the “neutrality” deal in court. Thus, the Mulhall case remains active and in need of resolution.
The case was heard by the U.S. Supreme Court on November 13. Lawyers for Martin Mulhall do not contend that “card check” deals per se are illegal. However, as a practical matter, Mulhall represents a grave threat to “card check” organizing. That makes the case critically important because, according to the best available evidence, “card check” has become private-sector unions’ most important method of organizing.
No wonder Benjamin Sachs of Harvard Law School has referred to Mulhall as, potentially, “the most significant labor case in a generation.” Sachs’ assessment has been quoted in dozens of mainstream and specialized legal media reports on the case.
Gag clause a ‘thing of value’
The major issue in the Mulhall case relates to whether key elements of the agreement between UNITE HERE and Mardi Gras constitute a “thing of value.” The NLRA law’s Section 302(a)(2) makes it unlawful for any employer to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value . . . to any labor organization . . . which represents, seeks to represent, or would admit to membership, any of the employees, of such employer.
And Section 302(b)(1) makes it unlawful for any union or union officer “to request, receive, or accept, or agree to accept” any such “thing of value.”
As Bill Messenger, attorney for the National Right to Work Legal Defense Foundation, explained in a brief to the Supreme Court, Congress adopted Section 302 largely in recognition of the fact that union monopoly bargaining as authorized and encouraged by the statute “creates a fiduciary relationship.” A fiduciary relationship is one of trust, such as between a trustee and a beneficiary; a trustee must act in the interests of the beneficiary. For example, an attorney must operate in the interests of his or her client. The NLRA-promoted fiduciary relationship between union officers and unionized employees is another example.
Messenger argued that Congress had adopted Section 302 largely to forestall “conflicts of interest in labor relations.” In support of this view, he quoted a U.S. Senate report on the 1959 NLRA amendments that extended the section to cover any union seeking to organize an employer’s employees:
For centuries, the law has forbidden any person in a position of trust to hold interests or enter into transactions in which self-interest may conflict with complete loyalty to those whom they serve.
Agreements to “pay, lend, or deliver” things of value to employees themselves, rather than to union officials, are indisputably permissible. The only “things of value” prohibited are those rendered by employers to union officials (except for some explicit exceptions in the law).
In the case now before the Supreme Court, Mulhall contends that three types of organizing assistance promised by Mardi Gras to Local 355 as part of their “neutrality” deal constitute “things of value” prohibited by Section 302:
(1) lists of confidential information about Mardi Gras’ nonunion employees, including their “job classifications, departments, and addresses”; (2) use of Mardi Gras’ private property for organizing; and (3) control over Mardi Gras’ communications to nonunion employees regarding unionization . . . . The last provision [of the deal] stated that “[t]he Employer will not do any action nor make any statement that will directly or indirectly state or imply any opposition by the Employer” to unionization or any particular union.
The Obama administration involved itself directly in the case, filing a “friend of the court” brief. While urging the Supreme Court to find that Local 355 had not violated Section 302, Solicitor General Donald Verrilli conceded that “courts generally construe” the term “thing of value” to include “both tangibles and intangibles.” He noted:
Courts have found a wide variety of goods, services, and benefits to be “things of value” within the meaning of the criminal laws.
Mulhall’s brief added that to be a “thing of value” under Section 302, a service or benefit need only be of value to the union officials receiving it. Moreover, each of the neutrality pact provisions at issue has a market value, albeit one it is difficult to assess with any precision, and can be “delivered” to union representatives.
For example, the gag rule provision is legally comparable to one business agreeing with another (assuming the agreement is permissible under antitrust law) not to fight for customers in a particular market, in exchange for some other consideration:
. . . Coca-Cola certainly delivers something of great value to Pepsi if it enters into a noncompetition agreement that bars it from advertising or competing against Pepsi in a particular market.
No ‘successful union organizing’ without employer collusion?
Questioned during November’s Supreme Court hearing on the Mulhall case, UNITE HERE lawyer Richard McCracken had a tough time defending his claim that gag rules, lists of employee names and addresses, and use at no cost of an employer’s facilities are not “things of value” under Section 302. Even Deputy Solicitor General Michael Dreeben, who also appeared before the Court to argue that UNITE HERE bosses had not violated the law, undercut McCracken on this key point when he admitted:
Certainly, read in isolation, the words “thing of value” are very broad. In other statutes, they cover intangibles. We would have no problem treating the things here as things of value under . . . 302 if that’s the only thing that existed.
But Dreeben contended all this shouldn’t matter, because union organizers have a right to seek recognition from an employer as employees’ monopoly-bargaining agent based on signed cards alone, without a secret-ballot election. That’s under NLRA Section 9(a), as interpreted by the Supreme Court in National Labor Relations Board v. Gissel Packing (1969). If the employer acquiesces, union bosses have a right to unionize employees through such “card checks” without a vote.
“Card check” recognition is obviously a thing of value to organized labor, Dreeben noted. Because it is permissible for employers to deliver such recognition to union officials, he claimed, it should also be permissible for employers to deliver to union officials virtually any other kind of organizing assistance, regardless of what Section 302 says.
The administration’s Dreeben and UNITE HERE’s McCracken evidently did not think it prudent to baldly claim, as Sachs of Harvard Law School had in a blog post the day before, that “effective union organizing” in the private-sector today relies on employer collusion in the form of gag rules, lists of information, and use of property. Yet Dreeben made the same point more circumspectly. He suggested the Justices should rule against Mulhall because employers’ “voluntary” recognition of unions through “card checks” is not merely a “permissible” element but a “favored” element of national labor policy.
But that’s wrong. In reality, the Supreme Court in the 1969 Gissel case acknowledged that “secret elections,” not “card checks,” are the “preferred” method “of ascertaining whether a union has majority support.” Therefore, there is no plausible reason to ignore the literal meaning of Section 302 in order to avoid hindering Big Labor from securing monopoly-bargaining privileges through “card checks,” even though “card checks,” with organizing assistance from employers, have become unions’ favored modus operandi.
As the attorney Bill Messenger observed in response to question from Justice Sonia Sotomayor, “nothing gives [UNITE HERE] any right to the three things it demands from Mardi Gras. So enforcing 302 in this case cannot conflict with the NLRA.”
Case #2: Forcing caregivers to join unions
If it comes out wrong, the Supreme Court case of Harris v. Quinn, set to be argued this month, could take the country much further down the road of Big Labor coercion. Or it could go in the other direction, revoking forced-dues privileges that government unions have exercised in many jurisdictions for more than four decades.
The lead plaintiff in Harris lives in a Chicago suburb and is the mother of a young adult son with severe developmental disabilities. In fall 2009, Pam Harris received a form letter from agents of Gov. Pat Quinn (D-Ill.). It informed her that, as a care-provider for her son in the state Disabilities Program, she now could cast a mail-ballot vote on which of two unions would be installed as her monopoly-bargaining agent in her dealings with the state. The letter Harris and several thousand other Disabilities Program providers received did not clearly state that they could opt for no union representation at all.
How did top bosses of the Service Employees International Union (SEIU) and the American Federation of State, County and Municipal Employees (AFSCME) get the opportunity to compete for control of Disabilities Program providers? They owed it all to Executive Order 2009-15, issued by Quinn on June 29, 2009.
Participants in the Illinois Home Based Support Services Program for Mentally Disabled Adults receive taxpayer-funded subsidies from the state to help cover the cost of care. Adults, or their legal guardians, may use their subsidies to compensate care-providers. Executive Order 2009-15 was crafted to enable one union to secure recognition from the state as these providers’ exclusive representative in their dealings with the state, and then to extract forced dues or fees from the providers.
For many years before, Big Labor had wanted to corral taxpayer-subsidized home care providers across Illinois into government unions, but had not been legally able to do so. The courts had held the providers were not public employees, because they are not supervised, hired, or fired by the state.
Quinn’s edict did nothing to change the underlying facts, of course. It simply declared that, even though citizens like Pam Harris aren’t supervised, hired, or fired by the state of Illinois or any of its subdivisions, the fact that they are paid and regulated by the state suffices to justify classifying them as public employees solely for purposes of unionization.
If the schemes concocted by Pat Quinn and other opportunistic Big Labor politicians in multiple states over the past few years—schemes to expand the reach of public-sector monopoly unionism—are constitutionally permissible, the implications are enormous. Doctors who accept patients under Medicare and/or Medicaid could be forced by gubernatorial executive order or state legislation to accept a particular private organization as their lobbying agent. Moreover, doctors could be forced to pay mandatory dues and fees to such an organization. Similarly, impoverished parents who participate in the “food stamp” program could be forced to join or pay fees to a government-designated lobbying agent.
Pam Harris and other care-providers cry halt
Over the course of the rigged Disabilities Program provider “election” in fall 2009, Harris and other parents pooled their money to print and distribute a flyer countering the Quinn team’s propaganda. The independent-minded providers’ shoestring effort succeeded. Providers ultimately voted two to one for “no union.” Nevertheless, SEIU and AFSCME union officers continued to press ahead with their efforts to gain forced-dues privileges over caregivers.
In Harris v. Quinn, Pam Harris and other Disabilities Program providers are seeking relief from these unionization efforts (continued under a program established by Quinn’s predecessor, the now-jailed Gov. Rod Blagojevich). They have been joined by several at-home caregivers who are being forced to pay union dues as a condition of receiving state assistance. Like Martin Mulhall in his case, the plaintiffs in the Harris case are represented before the Supreme Court by Bill Messenger of the Right to Work Foundation.
During oral arguments on January 21, Messenger will ask the Supreme Court to protect his clients from compulsory payments to unions by overturning Abood v. Detroit Board of Education, a 36-year-old case that invoked the “free rider” excuse to force workers into unions. Under this theory, workers who don’t pay forced union dues would get a “free ride” with regard to the benefits of the union’s bargaining and contract administration (benefits unsolicited by the workers, of course). Messenger will respond by citing a recent Foundation-won Supreme Court case, Knox v. SEIU Local 1000, in which Justice Samuel Alito observed in his majority opinion that “free-rider arguments . . . are generally insufficient to overcome First Amendment objections.” Alito added that perhaps Abood had crossed “the limit of what the First Amendment can tolerate.” (For more on Knox v. SEIU, see Labor Watch, Oct. 2012.)
Messenger will also argue that, even should the Court balk at reversing Abood, his clients must not be forced to pay union dues or face the imminent threat of forced-dues payments, because they are not employed in any government workplace. Therefore, there exists not even a theoretical possibility of “labor peace” in the workplace being disrupted by so-called “free riding,” as the Abood opinion had envisioned.
‘First Amendment values are at serious risk’
A Harris ruling that neither revokes Abood’s constitutional waiver for public-sector forced union dues nor finds the plaintiffs outside of Abood’s reach would have very dark implications for personal liberty and the democratic process.
In a November 2011 petition asking the Supreme Court to accept the case, Messenger reminded the Court that, outside the realm of labor-management relations, it has up to now been very reluctant to uphold statutes or executive orders that impose “compulsory advocates” on individual citizens. He quoted the Court’s 2001 ruling in U.S. v. United Foods:
First Amendment values are at serious risk 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.
In short, Abood blew a hole in the First Amendment, but a victory for the Quinn Administration and Big Labor in Harris would greatly expand that hole and jeopardize the free speech rights of millions of citizens who have been protected up to now.
That’s why, as high as the stakes are in Mulhall, the stakes in Harris appear to be even higher.
Stan Greer is senior research associate for the National Institute for Labor Relations Research, a think tank located in Springfield, Virginia, that is affiliated with the National Right to Work Committee. The opinions presented here are his own. This article originally appeared in Labor Watch, a publication of the Capitol Research Center, and appears here with permission.