If you ask the average American what the freedoms are guaranteed by the First Amendment, you are likely to get an incomplete list.
Most will list the freedoms of speech, press and religion that we sometimes take for granted, but fewer are likely to remember to include the rights to peaceable assembly and to petition the government, and the freedom of association that comes with them. But freedom of association is no less weighty than the other rights it accompanies.
An example: I have reached the age at which I get a lot of mail from AARP. For a pittance, I can join the organization, which claims to be “a voice advocating for people 50+” in America. AARP offers many benefits and discounts to its members, yet I always decline to join. I disagree with too many of AARP’s policy positions, even the ones it says are for the benefit of people my age, to want to have the organization represent me. AARP is doing just fine without my membership; millions of other people either agree with the organization’s positions or find that the other benefits of membership are more important than their disagreement. It is their prerogative to join, as it is mine to abstain.
Consider an alternative. What if the government viewed Social Security checks as, essentially, paychecks? Since the federal government is this paycheck’s source, it would occupy a position like that of an employer. Further suppose the government wanted to negotiate with a large, single party on behalf of the people that it is paying, and that it recognized AARP as this voice. Should the government then tell me that, because of the benefits AARP provides on my behalf, I have no choice but to join the organization – or at least pay the portion of the organization dues that AARP says are being used to maintain and expand the benefits it negotiated on my behalf, whether I wanted it to or not?
This scenario may sound unlikely, but it serves a framework to understand a case that was recently argued before the Supreme Court, Harris v. Quinn.
At first blush, the case seems to have a narrow focus. People in Illinois who need rehabilitation services sometimes hire in-home aides, who are paid under Medicaid, which is jointly funded by the federal and state governments. Though the state has never interviewed, hired or fired any of these aides, it does control their working conditions and pay rates. This was enough, according to the Illinois Legislature and then-Gov. Rod Blagojevich, to qualify the aides as state workers, and thus eligible for collective bargaining. One group of aides voted in favor of unionization, joining the Service Employees International Union. Disabilities-program workers were extended the same collective bargaining rights, but voted not to unionize.
Workers in both programs then sued to protest the requirement to pay the “fair-share” union dues required of non-union members who benefit from the union’s collective bargaining. The disabilities workers’ case was dismissed because they were not paying fair-share dues to begin with, but the rehabilitation workers’ case became Harris v. Quinn.
The underlying premise, that such aides are bona fide state workers whose collective bargaining rights can be awarded by labor-backed politicians, seems a bit of a stretch. But beyond the specific details, the lawsuit has morphed into one that deals with a much broader issue: Can the government compel its workers to support a union that advocates government policies, including higher pay and benefits for state workers, when the workers may disagree with the policies the union advocates?
People who support public employees’ unions are likely to see no difference between this situation and that of private employers with unionized workers. Illinois is not a “right to work” state, meaning it is legal there for employers to negotiate with unions and grant them mandatory representation of all workers.
But there is a key difference between this provision in public and private settings. Workers and their unions at private employers only sit on one side of the negotiating table. Costco employees, for example, are not automatically company shareholders (though they have an opportunity to buy shares through a company-sponsored program). They can work at the company without caring about the company’s financial performance other than the assurance it has the money to keep paying employees. Many of them do.
Not so for public employees, however, all of whom are also taxpayers. All Illinois public workers are also citizens of the state, meaning they effectively sit on both sides of the negotiating table. An individual worker may find her concerns as a taxpayer outweigh her concerns as a worker or a union employee. Why force her to support the other side by default?
The idea of mandatory union support for public workers is not an age-old principle. It was established in 1977 in Abood v. Detroit Board of Education. By urging the Court to overturn Abood, the unions’ opponents have cast this case as a major test of collective bargaining rights for public sector workers. Clearly unions, and the union-friendly Obama administration, are concerned. The administration urged the court not to hear the case, and now warns that “the challengers offer no reasoning that ‘justifies so radically reshaping First Amendment law,’” according to The Washington Post.
Yet a ruling overturning Abood, or at least reining in its implications, would do as much to defend the First Amendment as reshape it. After all, a ruling against the unions in this instance will not mean public employees can no longer join unions. It will simply mean that, like AARP, public worker unions will have to persuade the people that they want to represent to sign up and pay for it.
This is what freedom of association is all about. That is why this case is so important, and why unions are so worried about its outcome.