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Will: Caregivers and the First Amendment

First Published Jan 20 2014 09:06 am • Last Updated Jan 20 2014 09:06 am

WASHINGTON — The Democratic party is the party of government because it embraces a proposition it has done much to refute — that government is a nimble, skillful social engineer — and because government employees are a significant component of the party’s base and of its financial support through government employees unions. Franklin Roosevelt, architect of the modern party, believed unionization would be inappropriate in the public sector. Today’s party, however, aggressively uses government coercion to create supposed "government employees" from whom unions can extract money, some of it for the party.

Tuesday, the Supreme Court will hear arguments about whether the Illinois government’s policy of herding home-care workers into unions violates the workers’ First Amendment rights. It does.

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Because organized labor’s presence in the private sector has shriveled from about 35 percent of the workforce in the 1950s to 6.6 percent today, public-sector employees are labor’s oxygen. In Democratic-controlled Illinois, the relationship between the party and organized labor is, to say no more, mutually congenial. So, the government declared that providers of home care — including family members — for the elderly and others are government employees because their compensation comes from Medicaid, and because they participate in a state government program and are subject to state regulation.

In 2003, Democratic Gov. Rod Blagojevich, of fragrant memory, so decreed that thousands of home-care givers were public employees, and ordered recognition of whatever union thousands of caregivers would choose, which was the Service Employees International Union (SEIU). In 2009, the current Democratic governor, Pat Quinn, designated even more home caregivers as public employees, making them targets for "card check" unionization drives. In this process for Illinois government employees, when a majority signs the cards, a unionization election has occurred.

The state government gave SEIU and a rival union the names and addresses of all the freshly minted government employees. Pam Harris, who is suing to get Illinois’ system declared unconstitutional, gets a modest stipend from Medicaid to support her care for her profoundly disabled son. She remembers a young SEIU employee coming to her door to say just sign the card "so my boss knows I spoke to you." A majority of caregivers in one Illinois program chose the SEIU.

Illinois’ scheme is a trifecta of constitutional violations. It violates the right of free association of those who are coerced into a fees-paying relationship with unions — a right that, the Supreme Court has held, "plainly presupposes a freedom not to associate." Not to associate, for example, with groups whose expressive activities are offensive to those who are coerced into joining the groups. Second, those coerced into unions are compelled to subsidize with their dues union speech with which they may strenuously disagree. Third, after being transformed by government fiat into government employees, they are denied the First Amendment right to petition the government for redress of grievances in their own voices, having been forced to allow a union to petition for them.

An amicus brief supporting Harris notes that "the state of Illinois has no cognizable interest in maintaining ‘labor peace’ among household workers or family members merely because they provide services to individuals who participate in a state program or because they are subject to state regulation." "Labor peace" is the reason unionization is supposedly a legitimate state interest — sufficiently compelling, in certain circumstances, to allow states to compromise First Amendment protections.

"Labor peace" was an important interest when it entered labor law in 1917 in connection with a national railroad strike that might have seriously disrupted interstate commerce in wartime. But how could persons providing home care — including parents such as Pam Harris — threaten labor peace? Caregivers do not work together in a factory or office. And they certainly do not threaten the flow of interstate commerce.

They actually are employees not of the government but of the care recipients, who hire the caregivers and determine working hours and conditions. So what is the point of a union in these circumstances? Enriching the union is the point.

Illinois’ system resembles that in some other states. Until Republicans repealed Michigan’s arrangements, the SEIU extracted more than $34 million from tens of thousands of caregivers. Patently, the purpose of such systems is to enable unions to siphon away, in dues, a portion of caregivers’ pay, some of which becomes campaign contributions for the political party that created the system. The court is unlikely to think the First Amendment should be diluted to accommodate this.


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George Will’s email address is georgewill@washpost.com.



Copyright 2014 The Salt Lake Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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