By Mark Schneider, General Counsel for the International Association of Machinists and Aerospace Workers

•For more analysis of this case – and excerpts from the oral arguments, check out our AFJ Audio Analysis page for this case.

supremecourtbuildingEarlier this week, the U.S. Supreme Court heard argument in Harris v. Quinn, a challenge to an Illinois law permitting public employee home health care workers to be represented for purposes of collective bargaining by a single union, which has the right to collect compulsory fees from all of the workers it is required to represent.  In the state’s view, this unionized home health care system is a more cost-effective alternative than institutionalized care, and by allowing a union to represent the home-based workers based on a majority-rule vote, the state gains by developing a more stable, well-trained, and engaged workforce.  The workers, too, have gained much through this system, notably a substantial increase in wages.  And, the union got to grow its membership, and prove that it could be a responsible partner in improving the lives of the workers it represents and their communities.

Burkean conservatives ought to take comfort in government cooperating with a private association of workers to further the public interest.  The government often works best when it works with groups and associations to advance the public interest.  Rather than police and assess attorney misconduct through a bureaucracy in Washington, for example, it has proven beneficial to work with the various state and local bar associations and let attorneys govern themselves.  For a half century, we have allowed private groups like agricultural cooperatives, lawyer bar associations, and unions to participate in government regulatory programs where the association requires its members to join and pay their fair share of the cost of the program, and the association must represent all in the group fairly.

Libertarian conservatives, however, aren’t particularly comfortable with the idea of even the government assessing compulsory taxes.  They sure as hell don’t approve of private associations doing something similar.  And, when that association is a trade union…

Enter, alas, the First Amendment.  The government is requiring groups of people—lawyers, plum producers, workers at employers when a majority wants a union—to associate with each other, and to contribute to the costs of the association.

For half a century, the Supreme Court has balanced competing interests, but generally has allowed these cooperative programs to continue.  On the one hand, the government can work with these private groups to do the public’s bidding, and can allow the groups to bind all of its members and have them share in the cost of administering the program.  On the other hand, dissenting individuals are compelled to associate with and fund the group only to the extent that the group is doing the work the government has deputized it to do.  Thus, in the union context, workers don’t have to actually join a union; the most they have to do is fund their “fair share” of the “core collective bargaining activities” that the government has worked with the unions to advance.  Courts have developed a body of case law concerning the finer points of what is and what is not a “core collective bargaining function,” and what procedural protections are sufficient to assure that dissenting workers are paying no more than their fair share of the cost of administering these functions.  With public sector workers, this body of balancing law dovetails nicely with the related body of First Amendment law that holds that a public worker’s First Amendment rights to speak out against his or her public employer has to be understood in light of the great discretion allowed the state as an employer organizing its workforce.

Harris v. Quinn is not such a balancing case.  Instead, the Supreme Court reached out and took a case to consider whether the very idea of letting a state government work with a union in this way violates the dissenting group members’ rights of free speech, free association, and the right to petition the government for redress of grievances (which in this case translates awkwardly into the right to complain to your boss that you are being overpaid).

The Plaintiffs, to their credit, did not shy away from the radical nature of their argument.  In their view, bargaining for higher wages against a public employer is petitioning the government for a redress of grievances, and it is compelling involuntarily unionized workers to speak through their union on what are, by definition almost, matters of public concern.  The whole scheme of compelled exclusive representation by the majority’s choice of a representative—and compelled fee payments to that representative—violates the First Amendment, and the balance struck by the Court over the last half century adjusting competing interests has been, in Plaintiffs’ view, an unconstitutional bargain with the devil.

While the Court’s grant of the case had unions concerned that the Court was looking for an opportunity to reconsider this half century of precedent, the argument did not suggest great appetite on the Court’s part to embrace a radical change in the law.  Plaintiffs’ counsel had a difficult morning, and union counsel Paul Smith, and Solicitor General Donald Verrilli (friends who argued together for the first time in their careers) generally faced a less hostile bench, though several justices raised concerns about the power of public sector unions (and, in particular, teachers unions, though they were not a party in this case).  A divided decision later this year (or even, perhaps, a ruling that it was improvident for the Court to take the case in the first instance) may not give Plaintiffs all that they are asking for.  Instead, a law that has been a win-win-win for the State of Illinois, Illinois home health care workers, and their union, may against the odds prove to be a win in whole or in part at the Supreme Court as well.