Did the Supreme Court Just Signal Mandatory Union Dues Will Become a Thing of the Past for Public Sector Employees?

A possible future overruling of the decision that allowed compulsory dues to public-employee unions for non-political purposes

On June 30, 2014, the Supreme Court handed down its decision in Harris v. Quinn. Pamela Harris and several others are “personal assistants” under Illinois’ Rehabilitation Program or Disabilities Program-two programs, funded by federal Medicaid funds administered by the state of Illinois, that pay for in-home services for people with disabilities. The purpose of the program is to prevent people from having to go into a nursing home if they don’t need to; many personal assistants-including Harris herself-provide services at home for disabled family members.

Under the terms of the program, a personal assistant is formally an “employee” of the disabled person. Disabled persons (defined as “customers” in the law) choose their own assistants, determine the scope of services to be delivered, and can dismiss their assistants if they so desire. The state’s role is to set some basic employment qualifications, mandate an annual performance review by the customer, and mediate conflicts between customers and assistants-and, most importantly, to pay the personal assistant an amount comparable to what the relevant services would cost in an institution.

In light of the state’s minimal control over personal assistants, the Illinois State Labor Relations Board held in 1985 that personal assistants weren’t state employees. But Governor Rod Blagojevich reversed the result by executive order in 2003, and the Illinois legislature codified that soon afterwards. Now personal assistants are considered “public employees”-but “[s]olely for the purposes of coverage under the Illinois Public Labor Relations Act.” SEIU Healthcare Illinois & Indiana was designated as the personal assistants’ exclusive collective bargaining representative, and pursuant to a collective bargaining agreement with Illinois, personal assistants who didn’t join the union still had to pay a “fair share” of the union dues to cover collective-bargaining expenses. (This share is automatically deducted from the Medicare money that personal assistants get from the state.)

Harris and others challenged the fair-share provision under the First Amendment, charging that they shouldn’t be required to pay a fee to a union they don’t support.

The Supreme Court agreed, in an opinion (written by Justice Alito) that, by its terms, only applies to personal assistants. So the bare holding of the opinion is fairly narrow. But the opinion may be more important than its bare holding, to the extent that it portends a possible future overruling of Abood v. Detroit Board of Education, the 1977 decision that allowed compulsory dues to public-employee unions for non-political purposes. To see how the Court got to this result, it’s important to understand a few earlier opinions.

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In 1977, the Court considered a challenge to a Michigan statute allowing for union representation of local government employees. The statute permitted an “agency shop” arrangement: every employee represented by the union, even a non-member, had to pay the union an amount equal to union dues. D. Louis Abood, a Detroit teacher who opposed the dues, challenged the compelled-dues provision under the First Amendment.

The Supreme Court, in Abood v. Detroit Board of Education, held that the compelled-dues provision was valid. Justice Potter Stewart wrote that it didn’t violate the First Amendment to require represented employees to pay for the unions’ expenses of collective bargaining, contract administration, and grievance adjustment. Such forced dues, the Court held, were justified by the need to prevent employees from “free riding” on the union’s collective bargaining activity, which can benefit non-union members, and by the need to preserve “labor peace” by preventing dissension among competing unions. (In holding this, the Court spoke as if it were bound by two previous decisions, which had arisen in the private-sector union context. But, as Justice Alito wrote in Harris, this reasoning was shaky, since those opinions discussed the First Amendment issue barely, or not at all.)

But the Court also held that Abood had a valid First Amendment claim against being required to pay for the union’s ideological and political activities. If a union pays to express political views or support political candidates or advance “other ideological causes not germane to its duties as collective-bargaining representative,” it must do so using money raised from non-objecting employees. “There will, of course, be difficult problems in drawing lines between collective-bargaining activities, for which contributions may be compelled, and ideological activities unrelated to collective bargaining, for which such compulsion is prohibited”-especially in the public sector-but those problems weren’t presented in this case and could thus be left for another day.

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A case from just two years ago illustrates how the issues in Abood play out. The Service Employees International Union (SEIU)-note that this is the same union involved in Harris-sent the California employees it represented a dues notice, specifying that 56.35% of expenditures would be for “chargeable collective-bargaining activities.” “[C]hargeable,” here, meant not subject to the opt-out right recognized in Abood. A nonunion employee could object within 30 days and then be required to pay only 56.35% of the dues amount.

Later, to participate in the political debate over California union-related voter initiatives in the 2005 election (as well as for other political purposes), SEIU billed the employees for an extra 25% increase in fees. The fees would fund an “Emergency Temporary Assessment to Build a Political Fight-Back Fund.” This time, there was no new opportunity to object and opt-out. Those who had filed timely objections for the main dues collection only had to pay 56.35% of the temporary increase, even though the entire increase was for political purposes; and those who hadn’t objected to the main dues collection had no possibility of opt-out at all.

Dianne Knox and others represented both sets of objecting employees: those who had initially opted out but were still required to pay part of the political increase, and those who hadn’t initially opted out but wanted to opt out of the increase. The Supreme Court, in Knox v. Service Employees International Union, held that a new notice and opt-out provision was required.

Justice Alito, writing for the Court, held that compelled speech and compelled association raised First Amendment problems, and that “compelled funding of the speech of other private speakers or groups” was a “[c]losely related” issue. “Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences,” compulsory fees in this context impose a “significant impingement on First Amendment rights,” which past cases have “tolerated.” “[W]e do not revisit today whether this Court’s former cases have given adequate recognition to the critical First Amendment rights at stake.”

The Court conceded that these fees were designed to address free riding, but noted that “[s]uch free-rider arguments . . . are generally insufficient to overcome First Amendment objections.” “Acceptance of the free-rider argument as a justification for compelling nonmembers to pay a portion of union dues represents something of an anomaly-one that we have found to be justified by the interest in further ‘labor peace.’ But it is an anomaly nevertheless.” The Court also wondered out loud why opt-outs were constitutionally acceptable, any why one shouldn’t instead demand opt-ins. This whole regime-compelled dues plus opt-outs-“approach[es], if [it does] not cross, the limit of what the First Amendment can tolerate.”

Then, having questioned the whole theory of Abood, the Court didn’t strike it down. Instead, it merely refused to extend the theory to cover the opt-out-less “emergency” compelled payments at issue in the case.

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Thus, while Knox kept Abood standing, its reasoning made it clear that a majority of the Court now saw its conceptual foundations as weak.

And the same was true here, in Harris. As noted above, Justice Alito-the author of Knox-criticized Abood‘s First Amendment analysis, which misread two prior decisions from the private-union context as disposing of the First Amendment issue, even though one of those decisions wasn’t even about the First Amendment and the other disposed of the First Amendment issue hastily and with barely any reasoning.

Moreover, even on its own terms, Abood can be criticized for not giving enough weight to the important differences between private- and public-sector unions. For instance, in the private sector, collective bargaining and political activity are relatively separate activities: one is between the union and the private company in the context of private relations, while the other is between the union and the government or electorate in the context of electioneering or lobbying. “But in the public sector, both collective-bargaining and policy advocacy and lobbying are directed at the government”-which makes the line between the two difficult or impossible to draw in a principled way. The line, as elaborated over four Supreme Court decisions between 1984 and 2009, is so fact-intensive that objecting employees bear a heavy burden if they want to challenge particular union expenditures.

And finally, there’s no necessary reason why an “agency shop” is necessary to the principle of exclusive union representation. The people in this case weren’t trying to set up a rival union: they were just trying to avoid joining the existing union.

But the Court didn’t overrule Abood. Instead, it characterized the unions’ argument here as seeking to extend Abood to people like personal assistants, who weren’t really public employees (except insofar as the statute defined them as such for the sole purpose of unionization). The state has no power over personal assistants comparable to its power over its employees-virtually all power is held by the “customers,” i.e., the disabled persons. Aside from the collective-bargaining point, the state doesn’t provide personal assistants most of the rights and benefits of state employees, such as retirement and other benefits, or paid vacation or sick leave. (And even the collective-bargaining point is limited: personal assistants are entitled to bargain over far fewer things than other state employees.) And the state isn’t liable for personal assistants’ torts, as it is for its real employees.

In addition to the general shakiness of Abood and the differences between state employees and personal assistants, the Court noted that extending Abood to personal assistants would pose difficult line-drawing problems. States fund many sorts of non-employees; who would potentially be required to contribute to public-sector unions? Medicare-funded home health employees? Adult foster-care providers? In light of these difficulties, the Court chose not to extend Abood to this situation.

And, analyzing the situation under general First Amendment standards-the “exacting First Amendment scrutiny” that consists of judging whether the provision serves a “compelling state interest” that can’t be achieved through “significantly less restrictive means”-it was evident that the compelled-dues provision here must fail. In this situation of home-based providers, compelled dues wouldn’t particularly further “labor peace.” And, in response to the claim that unionization had improved the conditions of personal assistants, the Court responded that no showing had been made that compelled dues were responsible for that improvement.

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How much does this decision harm the prospects of public-employee unions? By its bare holding, not much. All the decision does is limit Abood to the category of full-fledged public employees, and refuse to extend it to the personal assistant context where the state exercises virtually no control. That leaves Abood untouched in its core, where the vast majority of its current beneficiaries live. If the case had come down the other way, public-employee unions might now have a large set of extra compelled contributors-everyone funded by the state to do something or other, even if the state lacks any real control over them. So this is somewhat of a loss for public-employee unions. But it’s not much of a loss of current power. One can even characterize this case as somewhat of a win for public-employee unions, given that much of the briefing was devoted to trying to convince the court to overrule Abood entirely.

The question, then, is what comes next. Justice Kagan, in her dissent, characterized Abood as a “deeply entrenched” decision, “the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the Nation”-and called the bare survival of Abood in this case “cause for satisfaction, though hardly applause.”

But perhaps Abood survived here merely because, in light of the differences between personal employees and personal assistants, there was no need to overrule it outright. The majority’s “potshots” at Abood (as Justice Kagan put it), as in Knox, suggest that, if an appropriate case comes around, with the current composition of the Court, compulsory union dues will become a thing of the past. It’s not clear whether the Court’s general antipathy toward compelled funding of speech is justified-we’re forced to fund government speech all the time; we call it “taxes”-but given that basic framework, overruling Abood would seem to bring greater consistency to the law.

Alexander “Sasha” Volokh is an associate professor of law at Emory Law School. An archive of his previous articles is available here.

[This article was updated on July 1, 2014 to reflect that the Knox v. Service Employees International Union decision was authored by U.S. Supreme Court Justice Samuel Alito. The original version of the article incorrectly cited Justice Antonin Scalia as the author.]