On Monday, in Harris v. Quinn, the Supreme Court made the right move in finding that Illinois home health care workers, as “partial public employees,” can’t be compelled to pay union fees, as other public employees are. The ruling follows a 2012 Supreme Court decision limiting the rights of unions to increase their fees without proper notice. And it sets up the question – already working its way through the federal courts – of whether a 1977 court decision, Abood v. Detroit Board of Education, which upheld government’s authority to compel government employees to pay union dues, should be overturned.
In about half the states, public employees are required to pay the fees, though they can opt out of paying for their union’s political campaigns and lobbying activity. The home health care workers who brought the suit argued that any mandatory union fee violates their First Amendment rights, because petitioning the government – including lobbying over work rules and benefits – is inherently political. A government employee, the argument goes, who supports giving workers the right to choose a 401(k)-style retirement plan instead of a traditional public pension should not be forced to support a union that opposes it.
The Supreme Court could have overturned Abood by ruling that any forced payment violates workers’ First Amendment rights. But it narrowly tailored its decision while casting aspersion on the 1970s-era precedent. The majority called Abood an “anomaly” resting on “questionable foundations,” charging that the 1977 court had “seriously erred” in its reading of precedents, which it “fundamentally misunderstood.”
The very first sentence of the Harris decision is its most important: This case, it states, “presents the question whether the First Amendment permits a state to compel personal care providers to subsidize speech on matters of public concern by a union that they do not wish to join or support.” Swap out “personal care providers” for “public employees,” and it is difficult to see why the same First Amendment protections should be any different.