Guest post, “Harris v. Quinn: A Win for Workers’ First Amendment Rights”

by Walter Olson on June 30, 2014

Cross-posted from Cato at Liberty, a guest post from my Cato colleague Andrew Grossman:

Enough is enough, the Supreme Court ruled today in Harris v. Quinn regarding the power of government to force public employees to associate with a labor union and pay for its speech. Although the Court did not overturn its 1977 precedent, Abood, allowing states to make their workers contribute to labor unions, it declined to extend that principle to reach recipients of state subsidies—in this case, home-care workers who receive modest stipends from the state of Illinois’ Medicaid program but are not properly considered “employees” of the state.

The Court is right that Abood is “something of an anomaly” because it sacrifices public workers’ First Amendment rights of speech and association to avoid their “free-riding” on the dues of workers who’ve chosen to join a union, the kind of thing that rarely if ever is sufficient to overcome First Amendment objections. But Abood treated that issue as already decided by prior cases, which the Harris Court recognizes it was not–a point discussed at length in Cato’s amicus briefAbood was a serious mistake, Harris concludes, because public-sector union speech on “core issues such as wages, pensions, and benefits are important political issues” and cannot be distinguished from other political speech, which is due the First Amendment’s strongest protection. A ruling along those lines would spell the end of compulsory support of public-sector unions, a major source of funds and their clout.

It was enough, however, in Harris for the Court to decline Illinois’ invitation “to approve a very substantial expansion of Abood’s reach.” Illinois claimed that home-care workers were public employees for one purpose only: collective bargaining. But these workers were not hired or fired by the state, supervised by the state, given benefits by the state, or otherwise treated as state workers. And for that reason, Abood’s purposes, which relate only to actual “public employees,” simply do not apply. Were the law otherwise, the Court observed, “a host of workers who receive payments from a governmental entity for some sort of service would be candidates for inclusion within Abood’s reach.”

While Harris is not a watershed opinion that remakes labor law consistent with First Amendment principles, it does put an end to the forced unionization of home-based workers, a practice that has spread to nearly a dozen states and had provided a substantial number of new workers to the labor movement in recent years. Harris also lays the groundwork for a challenge to what it calls “Abood’s questionable foundations.” If recent Roberts Court precedents like Shelby County and Citizens United are any guide, Harris is a warning shot that the Abood regime is not long for this world and that the next case will be the one to vindicate all public workers’ First Amendment rights.

In January Andrew published a thorough preview of the issues of the case. Earlier coverage here.

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{ 3 comments… read them below or add one }

1 Walter Olson 06.30.14 at 11:21 am

From SCOTUSBlog’s coverage:

“Will the Harris v Quinn decision affect other state homecare programs?
by caliguy”

“Tejinder — It certainly could: One of the key points of the Harris decision is that the customer (i.e., the patient) is the nominal employer of the home-carer. Thus, in any state where the program is structured that way, I would expect Harris to have some impact. The majority opinion begins by noting that millions of Americans across the nation use these programs, suggesting an intent to make policy quite broadly. At this time, though, I don’t know exactly how many programs that is.”

2 Walter Olson 06.30.14 at 11:28 am

Followup post from Andrew Grossman on practical consequences for organized labor.

3 wfjag 06.30.14 at 4:18 pm

I wondered how much “free riding” the “workers” are actually doing?

As I understand this suit, what is involved is Illinois’ home- and community-based Medicaid waiver program. The standards for these programs are, like all other state Medicaid programs, laid out in fairly substantial detail by the federal regs. which the states must meet to receive federal funding or matching of funds. While Medicaid programs are nominally state programs, since they must meet the detailed federal standards, they aren’t like what one typically thinks of as state law. Accordingly, there wouldn’t be much, if any, bargaining at the state level.

So, who was actually doing the “free riding” is in question. It always sounded to me that SEIU, by getting its friends in the Illinois legislature to enact union membership as a requirement for the home and community based workers caring for this Medicaid program’s recipients, was the one doing the free riding (the state must meet the federal standards and make sure that the home and community based workers comply with those standards, while SEIU gets to collect union dues so the workers can qualify to provide services under the program).

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