That is, the executive order authorizing the State of Illinois to recognize a union for home-care providers was issued by the former Democratic Governor of Illinois, Rod Blagojevich, as payback to unions for their campaign contributions — for example, the SEIU contributed about $1.8 million to Blagojevich's two campaigns for governor in 2002 and 2006 —
http://online.wsj.com/news/articles/SB122973200003022963
http://www.illinoispolicy.org/policy-points/process-for-unionizing-non-state-workers-raises-red-flags/
It is comical how the Solicitor General of the United States, Donald Verrilli, dodges this painfully obvious question. Verrilli had repeatedly mentioned non-constitutional issues, like collective bargaining, in reference to the government having an interest in 'efficient and sound operations', but when Justice Scalia questioned these issues as not being the actual motive, and then Justice Alito questioned Verrilli on the campaign contributions that Blagojevich received from the union, suddenly Verrilli did not want to talk about the state's motives anymore.
After Alito mentioned that the union received $3.6 million dollars as a result of Blagojevich's executive order forcing more people to pay agency fees, Verrilli made the comment: 'I don't think it would be appropriate to look behind the legislature's action to consider and try to evaluate its motives.'
Of course, evaluating motives was exactly what Verrilli was trying to do with his earlier testimony — the whole point of what he was saying about what the State of Illinois had done regarding the union, was to make it look like the motive was sound, and only based on valid, practical considerations.
The U.S. Constitution certainly does not give the government permission to force people to support a private organization, so what else could Verrilli talk about?
And in this case, the motive is critical, because the actual motive, unlike the convoluted rationalizations Verilli was presenting to the court, gets to exactly what the bureaucrats were trying to accomplish — reward the union for its support, and help ensure future campaign contributions.
It is fascinating how ponderous the oral arguments on this case were, in that this key point only came up briefly and was quickly dismissed, even though it completely explains all the facts of this case.
As much as the term 'free rider' has been thrown around in regard to individuals who do not want to pay to support an organization like the SEIU, this case, and others like it, was never about free riders — Harris v. Quinn is about rent-seeking by the union and the corrupt politicians that collaborate with them at the public's expense.
The bulk of what has been said and written about this case is rationalization and propaganda to avoid this obvious fact.
Nothing about Harris v. Quinn was ever aimed at preventing people from joining a union, if they wished — and nothing about this ruling prevents individuals from doing so. The Harris v. Quinn ruling just makes it a little harder for the unions to get contributions, since now they cannot use the state to force home-care workers to pay agency fees.
Now unions have to do it the 'hard' way — the moral way — they have to convince people to pay.
The obvious question here is not: 'Why shouldn't those who may benefit be forced to pay for what the union is doing?', but rather, 'Why should anyone be forced to pay for what the union is doing?'
The critical statements from an excerpt of the oral argument transcript are highlighted in italics below —
http://www.oyez.org/cases/2010-2019/2013/2013_11_681
...
Donald B. Verrilli Jr: It hasn't, but the key point for us, the point of vital importance for the United States here, is that the Court continue to recognize the context, the First Amendment context of the government as manager of its own operations.
And whatever choice the United States has made, many States have made different choices in their role as manager of their own operations.
And under this Court's established case law, which Abood, I think, is a quite good example of, the principle that when the government is acting to further its operations as manager they get substantial latitude.
Now, there's a limit on that, of course.
They can't use that authority to -- they can't leverage that authority to affect the way citizens interact as citizens--
Justice Antonin Scalia: Of course, one can be skeptical about whether, when States do this they are doing it because it's more -- more efficient as an employer, because some States have tried to force private employers to have a closed shop, haven't they?
Donald B. Verrilli Jr: --Well, I think--
Justice Antonin Scalia: And there's no, you know, no State government interest in it.
There's just State interest in unions.
Donald B. Verrilli Jr: --Yes, but here we argue--
Justice Antonin Scalia: And unions getting a lot of money from people who don't belong in the unions.
So one can be skeptical about whether this is really what's going on, that the State really thinks it's going to be a lot easier if it has a closed shop.
Donald B. Verrilli Jr: --I guess what I would say about that, Justice Scalia, is that one could speculate about motives of States like Illinois, one could speculate about motives of the right to work States, but I would suggest that under our Federal system that States get to make those kinds of policy choices.
And Illinois has made a policy choice, as many private employers have, that using collective bargaining -- and it is, I want to stress here, very narrowly tailored collective bargaining.
By law, it can only be over wages, hours, and conditions of employment, by law.
Justice Samuel Alito: Do you think that the specific factual background of what occurred here provides a basis for skepticism about Illinois's reason for adopting this?
Donald B. Verrilli Jr: I don't think so.
When the legislation was enacted, it was enacted with a very large bipartisan margin, and I just don't think it would be appropriate in the context of the government as manager of its own operations to look behind and try to consider motive.
This is a choice that many--
Justice Samuel Alito: I thought the situation was that Government Blagojevich got a huge campaign contribution from the union and virtually as soon as he got into office he took out his pen and signed an executive order that had the effect of putting, what was it, $3.6 million into the union coffers?
Donald B. Verrilli Jr: --Whatever happened--
Justice Samuel Alito: That's the sequence; isn't that correct?
Donald B. Verrilli Jr: --Well, I think the issue before the Court is the constitutionality of the statute that was enacted subsequent to that by a large bipartisan majority, and I don't think it would be appropriate to look behind the legislature's action to consider and try to evaluate its motives.
And I think under our Federal system States get to make choices.
It's true not every State does it this way, but many do.
They do so for reasons of efficient management of their internal operations and that's the principle that we think is of critical importance here.
Justice Antonin Scalia: They may do so because of that reason.
You don't know what their reason is any more than I do.
All you can say is that that might be their reason.
Donald B. Verrilli Jr: And they ought to have the discretion to make that choice under this Court's case law.
That's our position with respect to that.
If I could make a point that I think is an important point about the free rider rationale under Abood.
There's been some suggestion that the point of the free rider rationale is to -- is to force the dissenters, the nonunion members to pay up.
I don't think that's the right way to understand the free rider point.
That once the State has imposed a duty of fair representation, then everybody's got an incentive to free ride, whether you're a union supporter or not, because by operation of law, you're going to get the benefit.
It's just a classic logic of collective action problem.
...
Donald B. Verrilli Jr: It hasn't, but the key point for us, the point of vital importance for the United States here, is that the Court continue to recognize the context, the First Amendment context of the government as manager of its own operations.
And whatever choice the United States has made, many States have made different choices in their role as manager of their own operations.
And under this Court's established case law, which Abood, I think, is a quite good example of, the principle that when the government is acting to further its operations as manager they get substantial latitude.
Now, there's a limit on that, of course.
They can't use that authority to -- they can't leverage that authority to affect the way citizens interact as citizens--
Justice Antonin Scalia: Of course, one can be skeptical about whether, when States do this they are doing it because it's more -- more efficient as an employer, because some States have tried to force private employers to have a closed shop, haven't they?
Donald B. Verrilli Jr: --Well, I think--
Justice Antonin Scalia: And there's no, you know, no State government interest in it.
There's just State interest in unions.
Donald B. Verrilli Jr: --Yes, but here we argue--
Justice Antonin Scalia: And unions getting a lot of money from people who don't belong in the unions.
So one can be skeptical about whether this is really what's going on, that the State really thinks it's going to be a lot easier if it has a closed shop.
Donald B. Verrilli Jr: --I guess what I would say about that, Justice Scalia, is that one could speculate about motives of States like Illinois, one could speculate about motives of the right to work States, but I would suggest that under our Federal system that States get to make those kinds of policy choices.
And Illinois has made a policy choice, as many private employers have, that using collective bargaining -- and it is, I want to stress here, very narrowly tailored collective bargaining.
By law, it can only be over wages, hours, and conditions of employment, by law.
Justice Samuel Alito: Do you think that the specific factual background of what occurred here provides a basis for skepticism about Illinois's reason for adopting this?
Donald B. Verrilli Jr: I don't think so.
When the legislation was enacted, it was enacted with a very large bipartisan margin, and I just don't think it would be appropriate in the context of the government as manager of its own operations to look behind and try to consider motive.
This is a choice that many--
Justice Samuel Alito: I thought the situation was that Government Blagojevich got a huge campaign contribution from the union and virtually as soon as he got into office he took out his pen and signed an executive order that had the effect of putting, what was it, $3.6 million into the union coffers?
Donald B. Verrilli Jr: --Whatever happened--
Justice Samuel Alito: That's the sequence; isn't that correct?
Donald B. Verrilli Jr: --Well, I think the issue before the Court is the constitutionality of the statute that was enacted subsequent to that by a large bipartisan majority, and I don't think it would be appropriate to look behind the legislature's action to consider and try to evaluate its motives.
And I think under our Federal system States get to make choices.
It's true not every State does it this way, but many do.
They do so for reasons of efficient management of their internal operations and that's the principle that we think is of critical importance here.
Justice Antonin Scalia: They may do so because of that reason.
You don't know what their reason is any more than I do.
All you can say is that that might be their reason.
Donald B. Verrilli Jr: And they ought to have the discretion to make that choice under this Court's case law.
That's our position with respect to that.
If I could make a point that I think is an important point about the free rider rationale under Abood.
There's been some suggestion that the point of the free rider rationale is to -- is to force the dissenters, the nonunion members to pay up.
I don't think that's the right way to understand the free rider point.
That once the State has imposed a duty of fair representation, then everybody's got an incentive to free ride, whether you're a union supporter or not, because by operation of law, you're going to get the benefit.
It's just a classic logic of collective action problem.
...
This case, and especially the oral arguments and statements, act as a litmus test of one's intellectual honesty.
Contemplate the implications of this bizarre statement from Verilli: 'They ought to have the discretion to make that choice under the Court's case law.'
Verilli did not make that comment in reference to a group of bureaucrats choosing what color to paint an office building, or where to locate a military base — or any other operational decision that does not by necessity violate individual rights — his claim is that bureaucrats should be free to force individuals to pay fees to an organization they don't want to support — an organization which is a massive contributor to political candidates — under the absurd pretext that the coercion is required to protect the people being forced to pay the fees.
How on earth is it justified that the state has the free choice to use the lives of its citizens in this way.
Verilli has turned the proper definition of government on its head. As stated in the Declaration of Independence, just government power requires the consent of the governed —
https://en.wikipedia.org/wiki/United_States_Declaration_of_Independence
https://www.archives.gov/founding-docs
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
What can you say about the character of an individual who casually advocates before the highest court, for initiating force against individuals in this way?
What can you say about the character of an individual who advocates for government bureaucrats to have the choice to force someone to pay fees to an organization, knowing that organization pays support to the bureaucrats making that decision?
And how did unions get this reputation for being critical to 'efficient management', using Verilli's phrase, when unions have been notorious for inefficiency for decades?
Even the most famous Democrat, Franklin D. Roosevelt, wrote that collective bargaining is not appropriate for government employees. http://www.presidency.ucsb.edu/ws/?pid=15445
The reason should be obvious, since it is an obvious conflict of interest, given that the purpose of unions has always been to extract as much of the profit from an employer as they can, but in this case, the employer is elected by workers, and the cost of any contract is borne by the taxpayer.
So it is not even appropriate for employees on the state payroll to participate in collective bargaining, never mind individuals who are caring for family members in their own homes.
Here is a portion of Roosevelt's letter on this, written in 1937 —
http://www.presidency.ucsb.edu/ws/?pid=15445
112 - Letter on the Resolution of Federation of Federal Employees Against Strikes in Federal Service
August 16, 1937
My dear Mr. Steward:
As I am unable to accept your kind invitation to be present on the occasion of the Twentieth Jubilee Convention of the National Federation of Federal Employees, I am taking this method of sending greetings and a message.
...
All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management. The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people, who speak by means of laws enacted by their representatives in Congress. Accordingly, administrative officials and employees alike are governed and guided, and in many instances restricted, by laws which establish policies, procedures, or rules in personnel matters.
Particularly, I want to emphasize my conviction that militant tactics have no place in the functions of any organization of Government employees. Upon employees in the Federal service rests the obligation to serve the whole people, whose interests and welfare require orderliness and continuity in the conduct of Government activities. This obligation is paramount. Since their own services have to do with the functioning of the Government, a strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government until their demands are satisfied. Such action, looking toward the paralysis of Government by those who have sworn to support it, is unthinkable and intolerable. It is, therefore, with a feeling of gratification that I have noted in the constitution of the National Federation of Federal Employees the provision that "under no circumstances shall this Federation engage in or support strikes against the United States Government.
...
...
All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management. The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people, who speak by means of laws enacted by their representatives in Congress. Accordingly, administrative officials and employees alike are governed and guided, and in many instances restricted, by laws which establish policies, procedures, or rules in personnel matters.
Particularly, I want to emphasize my conviction that militant tactics have no place in the functions of any organization of Government employees. Upon employees in the Federal service rests the obligation to serve the whole people, whose interests and welfare require orderliness and continuity in the conduct of Government activities. This obligation is paramount. Since their own services have to do with the functioning of the Government, a strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government until their demands are satisfied. Such action, looking toward the paralysis of Government by those who have sworn to support it, is unthinkable and intolerable. It is, therefore, with a feeling of gratification that I have noted in the constitution of the National Federation of Federal Employees the provision that "under no circumstances shall this Federation engage in or support strikes against the United States Government.
...
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