Against Forced Unionization of Independent Workers
Over the past decade, more than a dozen states have forced independent contractors who are paid through Medicaid to join public-sector unions.In 2003, Illinois unionized home healthcare workers and imbued the Service Employees International Union with the right to collect compulsory fees from the workers’ paychecks. Democracy is thus being turned on its head: the elected representatives for the people of Illinois have chosen a sub-representative for some of the people and given that sub-representative a taxing power.
In so doing, they have severely impaired home healthcare workers’ First Amendment right of association and the right to petition the government for a redress of grievances. Without limits on government’s ability to forcibly unionize people who indirectly receive government-funded compensation (an increasingly large group), more and more citizens will have to interact with their representatives through a government-designated intermediary (a union); our democracy will become even more dominated by special interests than it is now.
Cato, joined by the National Federation of Independent Business and the Mackinac Center, filed a brief urging the Supreme Court to address this issue and vindicate the First Amendment freedoms upon which a thriving democracy depends. We argue that the forcible unionization of home healthcare workers serves none of the compelling purposes for public-sector unionization that have been articulated by the Supreme Court.
Because the Court has long recognized that unionization impinges certain constitutional rights, it has limited public-sector collective bargaining to those situations which advance the aims of promoting “labor peace” and eliminating “free riders.” Labor peace is promoted by limiting competing workplace interests from bargaining over the conditions of employment — for example, two unions at the same workplace representing different colleagues. Free riders are non-union employees who enjoy the benefits of union-achieved gains without paying into the union’s war chest. But neither aim is promoted by a system, such as Illinois’s, in which employees work in different locations and in which the customer — the disabled person paying the homecare worker through a Medicaid disbursal—still controls every crucial aspect of the employment relationship, including hiring and firing.
This last fact is most telling: the Illinois law only allows collective bargaining for higher wages and more generous benefits. That is, the law is only about speech — petitioning the government for higher wages and benefits — and does not address workplace conditions at all.
As more and more states push to unionize more workers who indirectly receive government money — campaigns that, in face o dwindling private-sector union membership, have been called “labor’s biggest victory in over sixty years” — it is vital that the Supreme Court articulate a limiting principle on this practice. Otherwise, more and more of us will be forced to interact with our representatives only through government-appointed bodies.
Prop 19, Employment at Will, and Social Peace
Writing at CNN, my colleague Jeffrey Miron puts his finger on one reason for the disappointing defeat of California’s Prop 19:
Prop 19 failed also because it overreached. One feature attempted to protect the “rights” of employees who get fired or disciplined for using marijuana, including a provision that employers could only discipline marijuana use that “actually impairs job performance.” That is a much higher bar than required by current policy.
Like so many other developments in employment law in recent years, this would have chipped away at the basic principle of employment at will, which holds that in the absence of a contract specifying otherwise, either party to an employment relation may end that relation at any time for any reason or for no reason at all.
It was no doubt inevitable that the proposition would fare poorly among self-identified conservatives and older voters. But the “users’ rights” provisions were enough to raise doubts even among liberty-minded thinkers like David Henderson, who predicted that by signaling hostility toward freedom of association, such provisions would “make the drug-legalization hill even steeper.”
Marijuana of course remains illegal under federal law, which means that its consumption would at one and the same time have been 1) protected under employment-discrimination rules, and 2) illegal and subject to prison sentences. If this paradox seems vaguely familiar, maybe it’s because not that many years ago — before the Supreme Court’s 2003 decision in Lawrence v. Texas — there were localities where consenting homosexual conduct was simultaneously protected under one set of laws, and unlawful under another. Indeed, there were more than a few advocacy groups that worked to promote the new controls over employer decisionmaking and yet never troubled themselves to work for repeal of the still-on-the-books anti-gay prohibitions. If the goal is to achieve social peace, however, rather than wage constant culture war on each other, you’d think the “leave people alone” message would hold more appeal than the “fall in line or you’ll hear from our lawyers” message.
Undermining Freedom of Association
Dissenting today in Christian Legal Society v. Martinez, Justice Samuel Alito put his finger on the majority’s underlying principle: there shall be “no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.” That pretty much says it all.
This case arose after the Hastings College of Law, a large public law school in San Francisco, denied the school’s tiny Christian Legal Society the same recognition and support it granted to some 60 other student organizations on the ground that CLS, contrary to the Hastings nondiscrimination policy, discriminates by requiring that its members and officers abide by certain key tenets of the Christian faith. In a word, in the name of anti-discrimination, Hastings, a government institution, discriminated against CLS, which was simply exercising its speech, religious, and associational rights. Cato filed an amicus brief in the case, written by the University of Chicago’s Richard A. Epstein, supporting the CLS students’ right to freedom of association.
But it was not to be. Justice Ruth Bader Ginsburg, writing for the Court’s three other liberals plus Justice Anthony Kennedy, held that the school’s “all comers” policy, which requires that student organizations accept anyone as members and even as officers, is “constitutionally reasonable,” taking into account all of the surrounding circumstances. That is a new standard for constitutionality when it comes to fundamental rights. And if students, whatever their interests or values, cannot form organizations limited to people who share those interests and values, what’s the point of having student organizations at all? In a word, like the mugger who says “Your money or your life,” today’s opinion enables Hastings to say, “If you want benefits otherwise available to all, you’ve got to give up your right to freedom of association.” No public institution should be able to put people to such a choice.
On the Right to Discriminate
In his post this morning, “Kagan on Military Recruitment,” Cato adjunct scholar Mark Moller touches on Cato’s 2005 amicus brief in Rumsfeld v. FAIR, which he co-authored when he was with us as editor-and-chief of the Cato Supreme Court Review – a duty he performed splendidly before moving off to the legal academy. In mentioning the brief, however, Mark says that he recalls that the position it took was controversial within Cato, that it might still be, and that Cato’s legal shop might take a different view were the case presented today.
I don’t recall that the position we took was controversial within Cato, but then it was five years ago, memories fade, and much has happened in the meantime, including the filing of a brief just three months ago that nicely complements the earlier position we took. In Rumsfeld v. Fair we argued that the government could not condition a private university’s eligibility for federal grants, as the Solomon Amendment did, on the university’s giving up one of its rights, namely, its right to freedom of association. The law school plaintiffs, citing the military’s “Don’t ask, don’t tell” policy, sought to exclude military recruiters from campus. Pursuant to their nondiscrimination policies, that is, the law schools sought to discriminate against those they thought to be wrongly discriminating. In our brief we took no position on the policy Congress had set for the military (that question was not before the Court), nor on the rights of public universities in this matter – nor did we address the question whether Congress, under its raise-and-support-armies power, could directly order schools to admit recruiters, as the Court ultimately held.
Well we now have the public school version of that issue before us, and the Court, in Christian Legal Society v. Martinez. And our brief in this case, written by Cato adjunct scholar Richard Epstein, argues that a public law school – Hastings, in this case – cannot condition the receipt of benefits it extends to all other student groups on CLS’s giving up its right to freedom of association. CLS, a private student group, excludes nonbelievers from its membership, which is its right. As a public institution, we argue, Hastings must treat all equally.
Thus, the principle in the two cases is the same. Private parties, pursuant to their right to freedom of association, may discriminate, whether we agree with their grounds for doing so or not. Public institutions, which belong to all of us, may not discriminate except on grounds narrowly tailored to their functions. Unfortunately, in numerous respects, that’s not our current law. For more, see here.
Was There a Libertarian Golden Age?
Recently I wrote an article arguing that there never was a golden age of liberty and that in particular libertarians should not hail 19th-century America as a small-government paradise, at least not without grappling with the massive problem of slavery. Jacob Hornberger, author of an article that I criticized, responded in Reason, and I then responded here. Meanwhile, an interesting discussion took place on a email list of libertarian scholars, and I’m pleased to have gotten the permission of several participants to include some of that discussion here:
Even Unpopular Causes Get Full First Amendment Protection
Under Washington’s constitution, a popular vote must be ordered on any bill passed by the legislature if a specified percentage of state voters sign a petition for a referendum. Washington’s Public Records Act makes public records, including such referendum petitions, available for public inspection. In 2009, opponents of same-sex marriage used the referendum procedure to attempt to reverse a state law which expands the rights of state-registered domestic partners. Proponents of the law sought access to the petition and two of the petition signers sought a preliminary injunction to prevent disclosure of their personal information, arguing that the PRA violates their right to speak anonymously.
The Ninth Circuit Court of Appeals held that the right to access trumps the right to anonymity. The Supreme Court granted certiorari to determine whether the First Amendment right to privacy in political speech, association, and belief requires strict scrutiny when a state compels the public release of identifying information about petition signers, and whether compelled disclosure of such information is narrowly tailored to a compelling government interest.
Cato filed a brief supporting the petition signers, in which we argue that the Court should establish a bright-line rule prohibiting laws that mandate the full disclosure of petition signers’ identities and contact information. Public disclosure carries significant burdens and unconstitutionally chills the exercise of First Amendment rights when no compelling government interest is at stake.
If the Court finds that the state has a compelling interest in public disclosure, disclosure exemptions are constitutionally required. Failure to require exemptions would permit the government to suppress the expression of offensive or unpopular ideas and would discourage individuals from associating in the first place.
Finally, our brief argues that even exemptions are not a substitute for strict scrutiny and provide inadequate protection where disclosure is not justified by compelling state interests. Exemption rules still chill speech, by their nature as an ad hoc process without fixed standards; the government is ill-suited to identify which groups should be exempt from disclosure, as is evidenced by their poor track record of erroneously suppressing controversial or unpopular speech.
The case, Doe v. Reed, will be argued in April.
Socialists Shouldn’t Have to Admit Libertarians Into Their Club
Hastings College of the Law, a public law school in California, has a policy prohibiting discrimination on the basis of “race, color, religion, national origin, ancestry, disabilities, age, sex or sexual orientation.” In 2004, the Christian Legal Society, a religious student organization at the school, applied to become a “recognized student organization” — a designation that would have allowed CLS to receive a variety of benefits afforded to about 60 other Hastings groups. While all are welcome to attend CLS meetings, CLS’s charter requires that its officers and voting members abide by key tenets of the Christian faith and comport themselves in ways consistent with its fundamental mission, which includes a prohibition on “unrepentant” sexual conduct outside of marriage between one man and one woman.
Hastings denied CLS registration on the asserted ground that this charter conflicts with the school’s nondiscrimination policy. CLS sued Hastings, asking for no different treatment than is given to any registered student group. The district court granted Hastings summary judgment and the Ninth Circuit affirmed. The Supreme Court granted certiorari to determine whether Hastings’s refusal to grant CLS access to student organization benefits amounted to viewpoint discrimination, which is impermissible under the First Amendment.
Yesterday Cato filed an amicus brief supporting CLS — authored by preeminent legal scholar Richard Epstein – in which we argue that CLS’s right to intimate and expressive association trump any purported state interest in enforcing a school nondiscrimination policy. While Hastings may impose reasonable restrictions on access to limited public forums, it should not be allowed to admit speakers with one point of view while excluding speakers who hold different views. Our brief also discredits Hastings’s assertion that its ability to exclude the public at large from school premises renders their content-based speech restrictions constitutional.
We urge the Court to safeguard public university students’ right to form groups – which by definition exclude people – free from government interference or censorship. (Of course, our first choice would be for the government to get out of the university business and our second choice would be to stop forcing taxpayers to pay for student clubs, but given those two realities — as in the case at hand – freedom of association is the way to go.)
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