O’Malley’s Unconstitutional Gift to Unions

Marc Kilmer Jul 9, 2014

Last week, the Supreme Court handed down a decision that will affect Maryland’s workers. No, it wasn’t about whether your employer should cover contraception. It was about whether the state can force you to pay money to a union if you are getting paid using state funds. And while the Supreme Court case was about an Illinois law, it will almost certainly apply to Maryland’s, too. The end result is that Governor Martin O’Malley’s attempt to curry favor with labor unions didn’t withstand constitutional scrutiny.

The story starts in 2007, when Governor O’Malley issued an executive order allowing unions to organize independent home health care workers (a move subsequently ratified with legislation in 2011). To help people with disabilities live in the community instead of institutions, state and federal government programs pay workers to provide services for that person. The person needing services can contract with a company to provide the service, or he or she can hire someone directly. Those hired directly are called independent home care providers, and are paid by the state. They are at the workers at issue in this case.

As the fiscal note for the 2011 legislation ratifying the governor’s executive order states, “these individuals are not State employees.” However, the governor’s order mandated that they be treated as state employees for the purpose of collective bargaining. That allowed the American Federation of State, County, and Municipal Employees (AFSCME) to be certified as the exclusive representative of these workers.

It also allowed AFSCME to collect union dues from these workers. And the dues weren’t just from the workers who wanted to join the union. Every independent home health care provider was deemed a member of the “bargaining unit.” Every one of them could be forced to pay dues.

Governor O’Malley and others have argued that this executive order was necessary to increase the pay of these workers. In reality, they didn’t need to unionize to do this. If the governor and legislators really thought these workers needed higher pay, then they could have accomplished this through the budget process. Since the state pays the workers, the state can set the pay rate. All this executive order achieved was diverting some of this pay from the pockets of these independent workers into the coffers of AFSCME.

Governor O’Malley and AFSCME certainly love the idea of forcing people who weren’t state employees to pay money to AFSCME. However, the Supreme Court does not. In Harris v. Quinn, they invalidated a similar Illinois law on First Amendment grounds, holding that it was “an unprecedented violation of the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

In response to the Harris decision, Governor O’Malley said he would review Maryland’s law and see what changes need to be made. Expressing his disappointment, he also vowed that “we will try to keep it as much intact as is possible.” Since the Illinois law was very similar to Maryland’s law, it is difficult to see how it can be kept intact in any way. A better way to deal with this decision is to abandon the unconstitutional law. The only people who would be hurt by Gov. O’Malley promptly complying with this decision are the union bosses at AFSCME.