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Supreme Court Ends ‘Dues Skim’ Nationwide

(Editor’s note: A version of the following commentary originally appeared in The American Spectator on July 1, 2014.)

On June 30, the Supreme Court ruled that thousands of home-based caregivers in Illinois — and perhaps hundreds of thousands in eight other states — are not required to pay union dues as a condition of employment.

How did we get here? Hundreds of thousands of disabled individuals in this country require the assistance of a caregiver. In order to avoid institutionalizing these patients, a federal Medicaid program provides assistance for in-home care. Many patients are cared for by a friend or family member.

Most people wouldn’t equate such a selfless act to labor unions, but the Service Employees International Union saw the flow of Medicaid dollars as an opportunity to reverse organized labor’s decades-long membership slump. SEIU began organizing caregivers in Los Angeles in the 1990s, and then moved to Washington, Oregon, Illinois, and several other states.

The arrangement was quite simple: SEIU would convince a state agency to declare that caregivers were public employees of the agency, when in reality the caregivers are privately employed by the care recipients and paid through the Medicaid program. The union would then run a union election to designate itself the representative of the “public employees,” ostensibly to bargain for higher wages and better working conditions. The state then diverted a portion of the Medicaid payments to SEIU in the form of union dues, regardless of whether the caregivers wanted to belong to a union.

The practice of unionizing private caregivers greatly enriched SEIU. We exposed a similar scheme in Michigan in 2009. Michigan Gov. Rick Snyder and the Michigan Legislature dismantled the program, but not before SEIU skimmed $34 million away from disabled adults.

The Harris case eventually reached the Supreme Court. In the 5-4 majority decision, Justice Samuel Alito wrote that home-based caregivers in the Medicaid program are not public employees, despite Illinois’s insistence otherwise. The recipients of the care, noted the court, have prime authority in hiring, firing, and supervising their caregiver, while the state merely administers the program and provides minimal regulatory oversight.

The court also noted that a ruling for SEIU would lead to absurd results, potentially unionizing as public employees a host of private workers who receive payments from a government agency. Doctors, hospitals workers, childcare providers, and foster parents could all be facing the same tactic. As the Mackinac Center noted, there could be no end to this type of public-sector unionization if it were allowed to be played out to its full extent. Could grocers be unionized because some customers use food stamps? Or perhaps landlords if some tenants receive housing subsidies? We noted such a landscape in one of two amicus briefs we filed in this case, and it appears the majority took note. Justice Alito wrote: “Extending those boundaries to encompass partial-public employees, quasi-public employees, or simply private employees would invite problems.”

Organized labor (and its primary political beneficiary) will criticize the ruling, but secretly labor leaders must have breathed a sigh of relief on Monday. Why? During the Harris v. Quinn litigation a much larger issue emerged: whether any public employee should be required to financially support a union he does not wish to join as a condition of employment. In 1977 the court had ruled in Abood v. Detroit Board of Education that public school employees could be required to pay union dues, even if they objected to the union’s ideological expenditures.

In the Harris majority, the Court again indicated that Abood stood on a “questionable” constitutional foundation, but declined to reverse the precedent, as the Illinois caregivers are not truly public employees.

So what’s next? The Supreme Court’s ruling ends the union practice of charging in-home caregivers mandatory dues. This ruling will apply nationwide, but especially in the nine states that have unionized hundreds of thousands of such workers.

But just as significant, the Harris ruling is another step in the direction of giving all public employees a choice in whether to support a labor union.

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Michael J. Reitz is executive vice president at the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or in part is hereby granted, provided that the Center and the author are properly cited.

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.

News Story

State Budget Savings Idea: Eliminate Revenue Sharing

Arguably no one in Michigan has made more recommendations to reform the state budget — literally hundreds of them worth billions of dollars — than Mackinac Center policy analysts. As the fiscal 2015 state budget has just climbed above $53.2 billion — a nearly 27 percent nominal increase since fiscal 2007 — it seems both prudent and timely to remind Lansing of some opportunities to trim state spending.

In 2003, Center experts recommended cutting in half statutory revenue sharing to local units of government with the ultimate goal of eliminating it entirely. Halving statutory revenue sharing in 2003 would have generated savings exceeding $422 million.

The good news is that the legislators ultimately cut revenue sharing, though more by circumstance than by choice. They should do so by choice. That money could be better spent elsewhere: shoring up state pensions, cutting personal income taxes or fixing roads, just to name three.

State officials have hiked revenue sharing for fiscal 2015 by $88.6 million (higher if you include “one-time” monies) to $419.2 million in ongoing appropriations. This total includes money from three revenue sharing line items, less $35.1 million destined for 20 counties as part of a Granholm-era tax shift, plus monies slotted for distressed communities (including the salaries of emergency managers appointed by the state to work in these local units).

More than $40 million of the total is considered “county incentive program” dollars. Incentive program money has been included to some degree in each budget of Gov. Rick Snyder’s administration. The governor’s original idea was to incent local units of government to make sound policy changes, such as being more transparent, attempting services consolidation and changing employee compensation. A number of state lawmakers and local officials have long wanted those demands changed or eliminated.

Reform of state revenue sharing may be a good idea, but not in the ways being advocated for in Lansing. For instance, apparently no one is advocating changing the formula to end the absolute windfall of revenue sharing monies received by the city of Detroit, which lawmakers just bailed out with another $195 million in state appropriations.

The fiscal 2015 state budget actually allots 56 percent of all statutory revenue sharing dollars ($140 million) to the Motor City, despite the fact just 7 percent of the state’s population lives there. If lawmakers insist on keeping revenue sharing, all of its dollars should be distributed on a per-capita basis only.

But why keep it at all? Michigan’s statutory revenue sharing program is fundamentally unfair at its core. It takes taxpayer dollars from localities that are not part of the sharing program (that is, they do not receive revenue sharing dollars) and gives it to those that are. Worse, the current formula actually favors fiscally irresponsible cities such as Detroit, Pontiac and Flint with the biggest pots of sharing dollars. In addition, if used to finance an income tax cut one could argue that people know best how to use their precious resources than any level of government.

A better idea would be to stop statutory funding altogether and let communities sink or swim on their own fiscal merit. Eliminating state statutory revenue sharing wouldn’t just end the unfair nature of the program. That $419 million-plus could be redirected annually toward shoring up the Michigan’s school employee pension system, which is underfunded by $25.8 billion; or cutting the personal income tax to nearly 4.05 from 4.25 (The Michigan Senate Fiscal Agency estimates that a full-year 0.1 percentage point cut in the personal income tax is equal to about $217 million in revenue), or to help fix the roads.

Revenue sharing dollars could even be used to fix roads and bridges in the very cities, counties, villages and townships from which the state sharing dollars were eliminated. In other words, these communities would still get their money it would just be earmarked to improving local infrastructure. Another option would be to simply run the savings through the state formula for road funding, which would see the money divided between 617 municipalities.

State lawmakers seem ill at ease with reducing state spending, but they should not. There are plenty of reasons and ideas for doing so.

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Michael D. LaFaive is director of the Morey Fiscal Policy Initiative at the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint this in whole or in part is hereby granted, provided that the author and the Center are properly cited.

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.