Richard Kirsch

Roosevelt Institute Senior Fellow

Recent Posts by Richard Kirsch

  • The Simple Solution to Obamacare's Employer Mandate Problems

    Mar 3, 2014Richard Kirsch

    Requiring employers to offer insurance to all employees or pay an additional payroll tax would eliminate the problems with the employer mandate, and start a shift toward broad tax-based coverage.

    Requiring employers to offer insurance to all employees or pay an additional payroll tax would eliminate the problems with the employer mandate, and start a shift toward broad tax-based coverage.

    In the last month, two more misleading headlines – one on lost jobs and the other on premiums for small businesses – have further roiled the overheated debate about the impact of the Affordable Care Act (ACA) on business and jobs. The question of how to deal with our employer-based health system continues to provide fodder for attacks on Obamacare. And it has proven to be  – and promises to continue to be – the basis for the most potent attacks against Republican proposals to replace the ACA. But in terms of policy, there is a simple solution, which would rationalize the contradictions in the Affordable Care Act and ease the way for the long-term goal shared on the left and right of separating health coverage from employment.

    The general approach taken in the Affordable Care Act was to require most employers to provide coverage. The specific proposal in the final legislation, shaped by compromises with and pressure from both small and big business lobbying groups, required employers with more than the equivalent of 50 full-time workers to pay a portion of health coverage for employees who work 30 hours a week, or pay a fine. This is the employer mandate, which was delayed a year by the Obama administration and will be phased in starting in 2015.

    The employer mandate does accomplish much of the prime goal of reform. Most employers have incentives to continue to provide coverage, or expand coverage. New coverage options are available for most people who do not get coverage at work, which was virtually all of the 50 million people who were uninsured when the ACA became law in 2010. People are not locked into jobs just because of health coverage, which was the real finding of the Congressional Budget Office report projecting 2.3 million people would retire or reduce their hours of work. Ending job lock opens up those hours to people who want to work and is a huge boon to entrepreneurship.

    But the problems with the structure of the employer mandate are obvious. The law creates incentives for employers to keep workers’ hours under 30. It also establishes the potential for a business with a growing number of employees, when it exceeds the 50-employee threshold, to suddenly have to pay for health coverage.

    The existence of incentives to cut hours or limit employees does not at all mean that employers will adjust for them. The accusations that the ACA is creating a part-time economy are belied by the facts: part-time employment is going down as the economy accelerates. In addition, employers that are adding workers rapidly as their businesses grow are not going to stop expanding  – or establish dozens of very small corporations – to avoid paying for health coverage. Still, we are seeing examples of some employers, including public employers and universities, limiting workers’ hours to less than 30. Others, like Trader Joe’s, are establishing different employment tracks for part and full time employees, with health care as a key factor. As this is all new – with the mandate not yet in effect – it is impossible to measure the future impact, but the incentives are certain to shape some business decisions.

    There is a simple solution, one that was included in the version of the ACA enacted by the House in 2009. Employers that decide not to provide health coverage for their employees would be required to pay a percentage of payroll as a tax to cover health care, just like employers do now for FICA (Social Security and Medicare). Instantly, the cliff impact is gone, both in terms of hours and number of employees. Employers could either provide coverage to all employees, or pay for health coverage in the same manner as FICA, a regular cost of adding an employee, with a marginal increase in cost for each hour someone works. There is no advantage to hiring someone for less than 30 hours or keeping under 50 employees.

    Paying a percentage of payroll also has another huge advantage over both the ACA and the current system of employer-provided coverage. Right now, the cost of health insurance premiums does not vary with an employee’s income. This creates a much bigger disincentive to hiring lower-wage workers. For example, a $6,000-a-year policy is 20% of the wages of a $30,000 a year employee but only 5% of the pay of a $120,000 a year employee. Paying a percentage of payroll instead would make it much more affordable to hire low-and-middle income wage earners than it is now. And while it would make it more expensive to employ higher-wage workers, most employers with high-wage workforces already provide health coverage and would be likely to continue to do so, rather than pay the payroll tax. If they did choose to pay, the cost is more easily absorbed for high-wage employees. Besides, that is not where we have an employment problem in the U.S.

    This solution mimics the structure of union-employer benefit funds, which are typically found in industries where workers have fluctuating hours. Under these “Taft-Hartley” funds, employers and workers pay into the fund based on the number of hours an employee works. The loudest opponents from the left of the employer mandate in the ACA have been unions whose members get health coverage through such funds now. The unions have said that the ACA encourages employers to stop paying into the funds, now that government will provide subsidies for many workers. But if the current employer mandate were replaced by a payroll tax, the status quo that has worked well for these funds would be maintained.

    Historically, the biggest opponent of a payroll tax for coverage has been the small business lobby, which is why the ACA does not require small employers to provide coverage. That is why the House version of the ACA phased in the payroll contribution based on payroll size, with no contributions required for payrolls under $500,000, increasing gradually to an 8% contribution for payrolls over $750,000.  This eases the burden on small employers.

    Slowly, the employer-based health coverage system in the United States is dissolving. Over the past 30 years, the share of workers with ESI has shrunk from 70% to 57%. Recently we have seen employers who traditionally have wanted to take responsibility for structuring employee coverage begin to use private exchanges, in which their workers get a fixed amount of money to choose from a choice of health plans. These trends hasten the broadly shared goal of separating employment from health coverage.

    As the debate over the ACA turns from repeal to fixing the law, progressives should make the payroll contribution proposal a central focus, our response to problems with the employer mandate. If enacted, as more employers choose to pay into the fund rather than provide their own coverage, we would move closer to ideal of a broad-based tax for coverage, not tied to an individual employer. And while a payroll tax is not progressive – it is proportional – it is much more progressive than the very regressive system we have now of fixed premiums regardless of income. The result would be evolution toward a relatively broadly based tax for health coverage, a key to making health coverage a right. 

    Richard Kirsch is a Senior Fellow at the Roosevelt Institute, a Senior Adviser to USAction, and the author of Fighting for Our Health. He was National Campaign Manager of Health Care for America Now during the legislative battle to pass reform.

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  • In VW Vote, Republicans Fight the Really Radical Idea that Workers Should Have a Voice in Business

    Feb 18, 2014Richard Kirsch

    When a company is not fighting against a union, why do that union's efforts fail - and what does that say about the U.S. model for labor?

    When a company is not fighting against a union, why do that union's efforts fail - and what does that say about the U.S. model for labor?

    Current management theory recognizes that businesses do better when employees are involved in decision-making. But that trend ran smack into the paternalistic view that workers are replaceable parts in the narrow vote by workers at Volkswagen (VW) in Chattanooga, Tennessee to reject the United Auto Workers (UAW). Here was a case where right-wing politicians, who usually worship at the alter of business, decided that a business that actually valued its employees’ ideas was un-American.

    In many ways what is remarkable about the vote of workers at a VW plant in Tennessee to reject the UAW was how close it was. Despite an aggressive campaign against the union by the state’s Republican leadership, if just 43 workers out of 1,338 had switched their votes, the union would have been voted in. The 626 workers who voted yes stood up to a campaign of intimidation by elected officials and right wing organizations that threaten not just their jobs, but harm to communities in the rest of the State. When it is so much safer to say no, we should recognize the guts of the hundreds of workers who by voting yes, declared that they deserved respect at their workplace.

    The main motivation for even having the union vote in Tennessee was not what most people assume, which would be to increase wages and benefits. While wages at the VW plant are far from enough to put workers comfortably in the middle-class, they are in line with wages paid to newly hired employees at plants represented by the UAW. In today’s era of diminished expectations by workers (and heightened ones by shareholders), VW workers in Tennessee were not organizing for a raise. Instead, they were calling for the establishment of European style works councils, which give workers a role in key decision-making at the factory.

    Works councils are common throughout Western Europe, and are often legally required at businesses with as few as five employees. Typically elected by all the workers at a business, including union and non-union members, the works councils join management in a range of decisions, including: monitoring and enforcement of employment and occupational safety and health laws, setting work and production schedules, introducing new technology, and downsizing the plant. To facilitate their role, the members of the works council have the right to information about financial and business matters, employment levels and structural changes to the work environment.

    Clearly, works councils would be a lot more revolutionary in U.S. businesses than voting in a union, because works councils establish a right to what was called in the early days of union organizing “industrial democracy.” They give workers a real voice at work. Companies like VW have found, in line with modern management theory, that giving workers a voice is good for business.

    Organizing the southern auto plants established by foreign auto companies over the past two decades is a top priority of the United Auto Workers. The auto companies were attracted to the South by a combination of low wages, workers with manufacturing experience, both laws and a political climate that discourage unionization, access to growing markets, and huge state-government tax incentives.  In 2008, Tennessee awarded VW a package worth $577 million to build the plant in Chattanooga, the richest package ever awarded to a foreign auto manufacturer at the time.

    The UAW decided to try a new strategy in its organizing effort at VW in Chattanooga, based on establishing a works council. The councils operate at every VW plant in the world, except those in China and the U.S. However, under American labor law, VW cannot establish a works council on its own. When the National Labor Relations Act was enacted in 1935, it was common for employers to set up unions they controlled, as a way to block unions that would really represent the workers. To prevent company-controlled unions, the NLRA prohibited the kind of joint management-worker decision-making bodies envisioned by a works council. For the UAW, VW’s openness to a works council presented a new avenue for organizing.

    While much has been made in the press about VW signing a neutrality agreement with the UAW, that act does not mean that VW’s American managers welcomed the union. Under the neutrality accord, VW rejected common anti-union practices among U.S. employers, like refusing to allow the union to speak with workers on site, requiring workers to attend anti-union meetings and harassing union supporters. However, the UAW too made concessions, including agreeing not to meet with workers in their homes, which is one of the most powerful ways of building support and leadership for unions.

    The main visible opposition at the factory came from salaried workers and low-level supervisors, who are not part of management but also were not eligible to vote in the union election, another barrier in American labor law. Mike Elk, who covered the vote for In These Times, reports many of these employees adopted the traditional view of American managers, that the union has no interest in producing quality cars and would interfere with corporate decisions. In the hierarchical American work culture, it is not surprising that workers who have been given some authority might be resentful of ceding some of their new power to a council that included hourly workers.

    Still, the close vote made it absolutely clear that deciding factor was the strident opposition of Republican U.S. Senator Bob Corker, Republican Governor Bill Haslam and Republican legislative leaders, who said that a vote for the UAW would scare other auto manufacturers away from Tennessee and dry up any more state support for expanding production at the factory. They made these threats even though GM announced this summer that it will add 1,800 jobs to a UAW organized factory in Spring Hills, Tennessee.

    The vote in Chattanooga should be seen as another skirmish in the growing debate about the role of workers in driving the 21st century economy. Southern politicians’ strong anti-union stance has roots in racist opposition to unions, which gave African-Americans a voice at work and better wages. Their virulent anti-union stance today continues the suppression of wages that has impeded the southern economy from the days of slavery. But today, the southern low-wage strategy has become a national model, led by the behemoth of southern companies, today’s largest employer, Walmart.

    The vote at VW highlights how the U.S.’s antiquated labor laws block economic progress. If the law allowed the establishment of works councils without the requirement that a union win a majority vote, it would provide a new vehicle to improve the performance and competitiveness of U.S. firms. The continued strength of many European manufacturers, even facing global competition from firms in lower-wage countries, demonstrates that giving workers a voice strengthens business. That lesson, a foundational assumption in the high-tech sector, makes sense for American manufacturers too. If our goal is to build an economy of broadly shared prosperity, giving workers a real voice in business decisions is a far better way to compete than slashing wages.

    Richard Kirsch is a Senior Fellow at the Roosevelt Institute, a Senior Adviser to USAction, and the author of Fighting for Our Health. He was National Campaign Manager of Health Care for America Now during the legislative battle to pass reform.

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  • Obama and the GOP Present Two Very Different Paths to Opportunity for All

    Feb 3, 2014Richard Kirsch

    Both the 2014 State of the Union and the Republican response emphasized the need for an opportunity society, but only the president called for collective action.

    Both the 2014 State of the Union and the Republican response emphasized the need for an opportunity society, but only the president called for collective action.

    Midway through listening to Rep. Cathy McMorris Rodgers’ Republican response to the State of the Union address last week, a colleague of mine e-mailed, “they got & used the economic narrative talking points to write this.” My friend was referring to the progressive economic narrative (PEN), developed to provide progressives with a powerful, clear story about the economy and the role of people, government, and business.

    In fact, there are powerful similarities in the story of the American Dream that both Obama and Republicans express, particularly as Republicans increasingly see that they must speak to Americans who are being pushed out of the middle class and struggling to stay out of poverty. That convergence is not by itself bad. It is an opportunity to draw attention to the huge chasm that exists between the two narratives, a Republican story based solely on the individual and a Democratic one that sees the individual in relation to collective action.

    Perhaps this is the line by McMorris Rodgers that triggered my colleague’s ire: “Last month, more Americans stopped looking for a job than found one. Too many people are falling further and further behind.” After all, one line from PEN is “Too many Americans can’t find a job and too many jobs pay wages that don’t support a family.”

    It is not a surprise that Republicans have been embracing part of the progressive story – that the middle class is getting crushed – because that is how most Americans are feeling, and pollsters for both parties are emphasizing that politicians must speak to where people are now to have any credibility.

    The similarities go beyond just relating to economic insecurity. Both Obama and McMorris Rodgers have the same vision of the American Dream, an opportunity society in which people are, as McMorris Rodgers said, “not defined by our limits, but by our potential.” Or, as the president put it, “our success should depend on… the strength of our work ethic and the scope of our dreams.”

    The heroes in both stories are hardworking Americans. Obama: “the notion that if you work hard and take responsibility you get ahead.” McMorris Rodgers: “They taught me to work hard, help others, and always, always, dream for more.”

    A job is how our hero achieves his or her dream. McMorris Rodgers says, “a job is so much more than a paycheck – it gives us purpose, dignity…” The president asks that “we do more to make sure our economy honors the dignity of work…”

    The underlying value in both stories is opportunity. McMorris Rodgers anticipates that Obama will focus his speech on inequality and tries to cut him off at the rhetorical pass: “The president talks a lot about income inequality. But the real gap we face today is one of opportunity inequality.”

    But Obama was not, in fact, giving a speech about inequality. He too was focused on opportunity, as Benjamin Landy bemoaned. “Instead of inequality, the President talked about ‘opportunity,’ a poll-tested alternative Obama deployed 14 times during the 65 minute speech. ‘Inequality’ was mentioned three times.”

    Saying that “opportunity for all” is “what unites the people of this nation,” Obama declared, “Opportunity is who we are. And the defining project of our generation is to restore that promise.”

    It is on the question of how we achieve the quest for opportunity for all that the president and McMorris Rodgers profoundly differ, where opposite visions of how we achieve the American Dream are projected. And remember that McMorris Rodgers’s speech is entirely a representation of Republican messaging

    According to McMorris Rodgers, you get there by yourself, with the help of your family. Her talk, as those of you who had the patience to listen through it will remember, was all about herself and her family: the work and savings ethics taught by her parents in a rural small town in Eastern Washington, her raising of her son born with Down syndrome.

    And that, in her political narrative, is how we address the challenge facing the country, “one manufacturing job, nursing degree, and small business at a time.” Her talk barely bothers with policy directives, but those few that appear are based on the individual.

    The most robust policy paragraph in her talk is, “We have plans to improve our education and training systems so you have the choice to determine where your kids go to college is affordable...and skills training is modernized.” When it comes to health care, “Republicans believe health care choices should be yours, not government. [emphasis added]”

    As far as how to get Americans those jobs, Republicans have “plans that focus on jobs first, without more spending, government bailouts, and red tape.… We have solutions to help you take home more of your pay – through lower taxes, cheaper energy costs, and affordable health care.”

    The villain is unmistakable in her story: “Government that decides for you.”

    But while the president’s heroes are individual hard-working Americans, he makes it clear that we build the pathway to opportunity for all through collective action. The word “community” appears 13 times in Obama’s speech; not once in McMorris Rodgers. The president uses “us” referring to the nation, 17 times; McMorris Rodgers, four times.

    The substance of Obama’s policy solutions are replete with concerted actions, and the entire premise that we do something together, through our government, is the exact opposite of the Republican story of getting the government out of the way.

    The stories he tells unite the individual and the community. For example, a student who, “thanks to the support of great teachers and an innovative tutoring program, he led a march of his classmates – through a crowd of cheering parents and neighbors – from their high school to the post office, where they mailed off their college applications.”

    Summing it all up – the heroes, the quest, the role of individual and the community, Obama says, “It’s the spirit of citizenship, the recognition that through hard work and responsibility, we can pursue our individual dreams, but still come together as one American family to make sure the next generation can pursue its dreams as well.”

    The narratives in President Obama and McMorris Rodgers’ responses are more than just a minor part of the evening’s political theater. They speak to the fundamental ideological divide in the nation and frame the political choices before the country now and over the coming decade. In the starkest terms, it is a contrast between “you are on your own” and “we are all in this together.” We want to tell our story in those terms, for when we do, progressives absolutely win that debate.  

    Richard Kirsch is a Senior Fellow at the Roosevelt Institute, a Senior Adviser to USAction, and the author of Fighting for Our Health. He was National Campaign Manager of Health Care for America Now during the legislative battle to pass reform.


    Images via Thinkstock

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  • Republican Alternative to Obamacare: Pay More, Get Less, Put the Insurance Companies Back in Charge

    Jan 28, 2014Richard Kirsch

    Now that Republicans have put out an alternative to the Affordable Care Act, Democrats should emphasize what a repeal would really mean for Americans' health.

    Now that Republicans have put out an alternative to the Affordable Care Act, Democrats should emphasize what a repeal would really mean for Americans' health.

    Boy, can Democrats have fun with the new Republican alternative to Obamacare. It puts the health insurance companies back in charge and raises costs for almost all Americans. In particular, it substantially raises costs and threatens to cut coverage for the half of all Americans who get health insurance at work. Seniors, the group that Republicans have scared witless about Obamacare, would lose the real benefits they receive under Obamacare. The proposal from three Republican senators is a golden opportunity for Democrats to contrast the specific benefits of the Affordable Care Act (ACA) with what a repeal and replace agenda would really mean for Americans’ lives and health.

    When it comes to the politics of health care reform, my first adage is “the solution is the problem.” That is because once you get past vague generalities, like lowering cost and making coverage available, to proposing specifics, people will look to see how the proposals impact them personally. This is why health reform is such a political nightmare. Unlike most public policy issues, the impact is very understandable and real.

    With the ACA as the law of the land, in analyzing the Republican proposal we must compare its impact to the law it would repeal. The pre-ACA model of health insurance is irrelevant. Here is how the Republican plan would impact people, compared with the ACA:

    People who get health insurance at workbottom line: pay more for worse coverage.

    Almost half of all Americans (48 percent), or 148 million people, obtain health insurance at work. The Republican plan would tax 35 percent of the average cost of health insurance benefits at work. This is a big tax increase on working people and is extraordinarily unpopular, as the Obama campaign used to devastating impact on John McCain. And while people would pay more, they would get less coverage, as the GOP plan would allow insurance companies to once again limit the amount of benefits they will pay out in one year and return to the day when employers could offer bare-bones plans.

    While taxing health benefits would apply to all employer-provided coverage, the Republicans would give the 30 percent of people who work for businesses who employ fewer than 100 workers a tax credit. That might balance out the increased taxes for some people. However, doing so would create a huge set of economic distortions, as employers might seek to keep firm size under the 100-employee threshold.

    Individuals who buy coverage on their own or who are uninsured – bottom line: insurance companies could again deny coverage for pre-existing conditions and offer bare-bones coverage, while the cost of decent coverage would go up for most people.

    This is the group that the ACA is most aimed at helping, including the 5 percent of Americans who buy private health insurance and the 15 percent who are uninsured, totaling 64 million people. The ACA offers income-based subsidies to these people when they earn between 100 percent and 400 percent of the federal poverty level (FPL) and enrolls people under 133 percent of FPL in Medicaid, when states agree.

    The Republican plan is toughest, in comparison with the ACA, on the lowest income people and on the higher-income middle-class, compared with Obamacare. But many families in between will do worse too.

    The Republican plan would wipe out the expansion of Medicaid to people earning less than 133 percent of FPL, a provision the Supreme Court has made optional. It would cut back on Medicaid, ending the federal government’s offer to pay 90 percent of the cost of expanded coverage and replacing that with the federal government paying what it has paid historically, which is between half and three-quarters of the cost of Medicaid, with poorer states getting a bigger share. Crucially, the funding would only be for pregnant women, children and parents with dependent children who earn under the poverty level, as opposed to the ACAs funding of all adults up to 133% of FPL. That means many fewer people covered and states getting less Medicaid money. Republican governors may not complain, but you can bet hospitals will. Adults without dependent children would not be covered by federal Medicaid, which means millions will stay uninsured or lose coverage they now have, unless states pay for coverage without federal support.

    For individuals not covered by Medicaid or employees of firms with fewer than 100 workers, the Republican plan would replace the ACA’s sliding-scale subsidies, which now go to 400 percent of FPL, with a subsidy that is the same for everyone of the same age who is under 200 percent of FPL and lowersubsidies for people from 200 percent to 300 percent. In addition, the subsidies would be higher for older people than younger. The Republican plan also would take away the requirements that insurance plans offer decent benefits and free preventive care and charge women the same prices as men for coverage, along with every other consumer protection, with the exception of keeping in place no lifetime caps for covered benefits.

    Comparing the value of the Republican plan subsidies vs. the ACA subsidies for the people who would still qualify depends on income, age, and family size. Generally, it appears that the Republican subsidies are much less than the ACA for people under 150 percent of the FPL ($35,000 for a family of four) and much less than the ACA for younger people, but more for older people. However, insurance rates for younger people would go down some at the expense of older people, who insurance companies could charge a lot more than under ACA. And families with incomes above $70,000 for a family of four would lose subsidies entirely.

    Seniors and the disabled on Medicare – bottom line: seniors would pay more for prescription drugs and preventive care.

    By repealing the ACA, the Republican plan would take away its two concrete benefits for seniors. One is that preventive care services are now free under Medicare (as they are under all insurance). The other is that the ACA is lowering drug prices for seniors by slowly closing the “donut hole,” under which seniors must pay the full cost of prescription drugs even though they are paying premiums for drug coverage. In other words, the Republican plan is simply bad news for seniors, the constituency that they have scared the most about Obamacare groundlessly.


    It is not surprising that Republicans have been reluctant to come up with a replacement for Obamacare. It’s much easier to throw darts – or bombs – at the ACA than to come up with a replacement that meets Republican ideological tenants of less regulation and less government. Any plan that meets the ideological test will be much worse for people in ways they can understand. It is our job to explain it to the public clearly: pay more, get less, put the insurance companies back in charge. This debate is not simply the political game Republicans want to make it. It is about our health and our lives. 

    Richard Kirsch is a Senior Fellow at the Roosevelt Institute, a Senior Adviser to USAction, and the author of Fighting for Our Health. He was National Campaign Manager of Health Care for America Now during the legislative battle to pass reform.

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  • The Right Takes Aim at Public Sector Unions in a New Supreme Court Case

    Jan 23, 2014Richard Kirsch

    A dispute over whether home care workers in Illinois can be required to pay union dues is part of a much larger strategy to undermine the progressive power base.

    A dispute over whether home care workers in Illinois can be required to pay union dues is part of a much larger strategy to undermine the progressive power base.

    You have to hand it to the right wing: it understands the importance of institutional power more than much of the liberal establishment. It took down ACORN, the organization that registered the most low-income voters of color in the nation, and Democrats in Congress and many big liberal foundations went along with it. Its relentless, decades-long campaign against the labor law that protects private sector organizing has slashed the share of unionized private sector workers to less than 7 percent, while a succession of Democrats in the White House and Congress have stood by.

    Since 2010, the right has been focusing its attacks on public sector workers, one-fourth of whom are represented by unions with collective-bargaining rights. It has aimed to weaken bargaining rights in Midwestern states with long histories of union representation and has had (too) much success. This week, it brought that fight to the Supreme Court, in a case that could destroy the financial base of the biggest remaining source of support for government and vital domestic services.

    The case is Harris v. Quinn, in which a group of home care workers in Illinois is challenging the state's requirement that the workers pay union dues. The workers are employed by individual patients but are funded by Medicaid. Having unions, in this case SEIU, represent home care workers is part of an admirable strategy of extending collective bargaining to workers who are publicly funded even if they do not work directly for the government. Since federal law does not provide collective bargaining rights to either public employees or domestic home care workers, using state law to organize these workers, who typically get low pay with no benefits, is vitally important to their own well-being and to building a middle-class driven economy.

    However, the debate among the Supreme Court justices yesterday did not focus on the narrow question of whether Illinois Governor Rob Blagojevich had the power to categorize the home care workers as public employees. Instead, the justices debated whether, because issues of wages and benefits for public employees are inevitably and intrinsically matters of public policy, compelling workers to pay union dues would be an infringement on free speech and association.

    The Illinois workers are represented by the National Right to Work Foundation, whose attorney, William Messenger, was eager to expand the case, which suggests it was developed as a political weapon, not a true complaint by a handful of workers about paying dues. Messenger argued, as Lyle Denniston explains at SCOTUSblog, that “anything a public employee union does is an attempt to shape matters of ‘public concern,’ and it should not be able to compel support — even for part of the monthly dues — from workers who oppose the union’s public policy ambitions.”

    Just so nobody missed the ideological stakes at the heart of this legal argument, Justice Anthony Kennedy argued that workers who favor shrinking the size of government would have their First Amendment rights trampled if the union argued to expand the workforce. The same logic would apply to the union defending the current size of the workforce or how much workers get paid.

    Logically, it is impossible for a public sector union to represent its members’ interest in keeping their jobs or in how much they get paid without affecting public policy. This point was made by SEIU’s attorney Paul Smith, who said, “Any outcome of a negotiation of a collective bargaining agreement involving public employees will involve the expenditure of public money in a variety of ways.”

    Of course, public employee unions' interest in defending their members is why those unions support increased taxes and funding of government programs. The union positions are not always progressive. Unions sometimes support regressive tax increases. Sometimes AFSCME, which represents corrections officers, lobbies for stricter sentencing or against closing of prisons. But on the whole, in advocating for their members, public employee unions support maintaining and expanding public services, oppose privatization, and are a major source of organizing, funding, and lobbying for those policies and an absolutely vital part of the progressive infrastructure. Hence they are a big target for the right.

    When these issues have been debated in the past, the Supreme Court has recognized the legitimacy of required union dues for public employees while insisting that political contributions be voluntary. As Adam Liptak explains in the New York Times, “In 1977, in Abood v. Detroit Board of Education, the Supreme Court said that teachers who declined to join a union could nevertheless be required to help pay for the union’s collective bargaining efforts to prevent freeloading and ensure ‘labor peace.’ But workers may not be forced to help pay for a union’s purely political activities, the court said.”

    That argument may explain why Solicitor General Donald B. Verrilli Jr. agreed that advocating for increased Medicaid reimbursement would not be by itself a permissible union activity, but argued that the state’s interest in designating a union to maintain labor peace was the determining factor in supporting the mandatory dues. Verilli’s argument may be a good one before this Court, but it defies logic and avoids the real issue of the interwoven nature of public policy and public worker bargaining. The Court should recognize that the effective right of association in public employee unions depends on the unions engaging in public policy to improve their members’ working conditions.

    The Supreme Court reporters whom I read all agreed that the Court is unlikely to overturn Abood and outlaw mandatory dues by public employees, with one pointing out that the Court affirmed that position in 2007 in an opinion written by Justice Scalia. There is some reason to think that Chief Justice Roberts could avoid the issue by narrowing the ruling to the question of whether Illinois can designate the home care workers as public employees.

    However, a decision to overturn mandatory dues collection by public employees would be a body blow to Americans who believe in establishing collective responsibility for common goods by raising taxes and spending public dollars on government. 

    Public employee unions, and unions that are working to develop new ways to represent workers in the private sector who are paid with public dollars, are a leading force for creating opportunity and security in an America that works for all of us. They will continue to be a target of the right. Progressives at every level must support them and work to expand, not restrict, their reach.

    Richard Kirsch is a Senior Fellow at the Roosevelt Institute, a Senior Adviser to USAction, and the author of Fighting for Our Health. He was National Campaign Manager of Health Care for America Now during the legislative battle to pass reform.


    Image via Thinkstock

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