LA FREEDOM

THE CASE FOR FREEDOM As HHS Secretary, Becerra would back unions rather than homecare providers

By MAXFORD NELSEN Reprinted from the NATIONAL REVIEW

March 3, 2021

During Xavier Becerra’s confirmation hearing before the Senate Finance Committee this week, Senator Bob Casey remarked that our view of Medicaid “tells us whom we value, whether it’s kids or seniors or people with disabilities.”

Becerra, President Joe Biden’s nominee to head the Department of Health and Human Services (HHS), assured Casey that he would “strengthen Medicaid” if confirmed. But as California attorney general, he worked to perpetuate the diversion of hundreds of millions of dollars in Medicaid payments from homecare aides to labor unions that backed his political campaigns.

Beginning with California in the early 1990s, a handful of states allowed unions such as SEIU and AFSCME to unionize workers who provide in-home care to Medicaid-eligible adults with functional disabilities.

These caregivers assist their clients — often relatives or close personal friends — with the basic activities of daily living, and laws such as California’s required them to pay union dues, which were automatically deducted from their Medicaid payments.

Since 2014, when the Supreme Court struck down mandatory dues schemes as unconstitutional in Harris v. Quinn, unions and allied state officials, such as Becerra, have worked to make it easy to sign caregivers up for union membership and as difficult as possible for them to leave a union once they’ve joined.

Both unions representing caregivers in California have even been sued in federal court for forging caregivers’ signatures on membership forms and thus triggering nearly irrevocable, state-administered dues deductions from their Medicaid payments.

Becerra, who represents the state in both cases, is surely aware of these allegations of criminal conduct by the unions but has taken no action to address them.

As a result, about 350,000 caregivers in eight states had nearly $150 million in union dues siphoned from their Medicaid payments in 2017 alone.

Stunningly, this happened in spite of longstanding federal law requiring that “no payment” for Medicaid services be made to “anyone other than . . . the person or institution providing such care or service.”

During the Obama administration, HHS chastised Washington State for withholding dues from caregivers’ Medicaid pay- ments but declined to enforce the law against the state. Instead, it created a loophole.

Despite admitting that federal law does not provide for “exceptions to the direct payment principle,” HHS adopted a regulation in 2014 allowing states to make deductions from Medicaid payments for “benefits customary for employees,” arguably including union dues.

During the Trump administration, HHS rescinded the regulation, acknowledging that it was “neither explicitly nor implicitly authorized by the statute” and that diverting “a portion of [practitioners’] Medicaid payment to a union” was illegal.

As Trump’s HHS worked to rescind the Obama-era regulation, Becerra coordinated with several other attorneys general, as well as lawyers for SEIU and AFSCME, on a lawsuit to save it.

The coalition executed a “common-interest agreement” to shield much of its coordination from disclosure under government-transparency laws, though highly redacted emails confirmed its existence.

Shortly after the Obama rule was repealed in May 2019, Becerra led California, Washington, Oregon, and Massachusetts in a federal lawsuit to reinstate it.

When SEIU and AFSCME sought to join the lawsuit as co-plaintiffs against HHS, Becerra informed the court that he had no objection.

But when ten caregivers who couldn’t get their states to stop the unwanted union-dues deductions sought to join the lawsuit on HHS’ side, he filed a 22-page brief seeking to keep them out.

Becerra’s collusion with SEIU became even more apparent in late 2019, when HHS proposed new regulations to reinforce the statutory requirement that providers “receive and retain the full amount” of their Medicaid payments.

During the comment period on the proposed rules, Becerra submitted an opposition letter to HHS, a lengthy passage of which was copied verbatim from the comment submitted by SEIU the same day.

If confirmed, Becerra will presumably abandon HHS’ fight against the litigation he initiated as California attorney general and simply turn a blind eye to the illegal diversions as the Obama administration did. Perhaps Becerra’s hand-in-glove coordination with powerful labor unions to preserve a lucrative, exploitative practice shouldn’t come as a surprise, given that he received nearly $200,000 in direct campaign contributions from SEIU and AFSCME affiliates during his relatively short tenure as attorney general. Still, if Sen. Casey is correct that one’s attitude toward Medicaid reveals whom he values,

Becerra’s actions make it quite clear that, as HHS secretary, he’d place the interests of labor unions, above the interests of homecare workers. And that alone makes him unfit to run the country’s largest bureaucracy.

Maxford Nelsen is labor policy direc tor for the Free dom Foundation.

BOARDMAN

Continued from page 1

dom Foundation created an outreach program to contact caregivers by email, direct mail and in face-to-face meetings with paid canvassers.

But in order to inform workers, the Freedom Foundation needed their contact information. I-1501 prevented them from getting it by creating an exception to normal public disclosure laws for unionized caregivers.

“Under the law, it’s possible to exempt certain government employees — like prison guards — from disclosure laws because making their contact information public could put them at risk,” said Aaron Withe, the Freedom Foundation’s national director. “But you can’t base that exemption on political ideology or financial gain, and that’s clearly what’s happened here.”

Union-sympathetic judges at the lower and Appeals Court level have consistently rejected the Freedom Foundation’s argument, concluding there is no reason to believe voters approved I-1501 for any reason other than its stated goal of crack down on ID theft.

But that’s just the point.

“The voters were duped,” Withe said. “They thought they were helping protect elderly and vulnerable Washingtonians from fraud. Instead, they ended up perpetuating a fraud under which unions have spent decades using people who just want to care for their low-income loved ones as their unwitting cash cow.”

Boardman is the second Freedom Foundation case appealed to the Supreme Court in the past month.

The petitioners are represented by former U.S. Solicitor General Paul Clement of Kirkland & Ellis LLP, Susan Stahlfeld of Miller Nash Graham & Dunn LLP and Freedom Foundation attorney Caleb Jon Vandenbos.

LITIGATING FREEDOM Brief says nonprofit groups can protect donors’ identity

In California, the state attorney general is trying to force all charitable organizations operating in the state to turn over the names and addresses of their top financial contributors.

In response, the Freedom Foundation filed a brief at the U.S. Supreme Court in support of our friends at Americans for Prosperity and the Thomas Moore Law Center — and all charitable organizations in California wanting to keep their donor information private.

In its brief, the Freedom Foundation argues that the threat facing donors whose identities are leaked to the public is more than just speculation. The campaign of harassment and intimidation faced by supporters and staff of the Freedom Foundation in recent years bears powerful evidence to this reality.

These attacks include baseless accusations of bias, attempts to ruin supporters’ businesses through personal attacks and public demonstrations, and even encouraging Freedom Foundation staff members’ neighbors to confront them at their own homes based upon nothing more than outright lies and deceptions.

Given the wider context of so-called “cancel culture,” in which individuals are publicly shamed and ostracized because of “perceived transgressions of speech and thought,” attacks on supporters and staff of the Freedom Foundation is all the more concerning and cannot be tolerated.

The Supreme Court has long recognized, beginning with a case concerning the attempted forced disclosure of NAACP members in the 1950s, that when organizations are subject to societal criticism, harassment and even possible violence, the First Amendment speech and association rights of donors trump any purported interest asserted by the government in obtaining the information.

In its brief, the Freedom Foundation further maintains that the leak of supposedly confidential information by the government is a regular occurrence, and there is a reasonable expectation that California will be unable to keep disclosed donor information private.

Finally, the Freedom Foundation argues the Supreme Court’s previous recognition of disclosure exceptions for organizations facing harmful or violent repercussions is just as important now as it was in the 1950s and ’60s — especially given the access to information enabled by modern technology and the Internet.

Though the context has changed, the very same liberties are at stake in Americans for Prosperity v. Becerra. California’s attempt to compel donor disclosure thus imperils both individual rights and the future of charitable organizations.

The framers of the Constitution well understood the reasons why it is often necessary to remain anonymous in the arena of political participation. While differences of opinion are inevitable (and even beneficial) in a robust and thriving democracy, shutting down people we disagree with does not lead to the promotion of good public policies or a healthy marketplace of ideas.

Instead, it leads to oppression and intellectual stagnation. We cannot give up our most cherished principles and rights in an effort to avoid controversy. The future of free speech and free association depends on it.

By TIMOTHY R. SNOWBALL, Litigation Counsel

Supreme Counrt needs to clarify what it means by the term ‘free association’

In its landmark 2018 Janus v. AFSCME ruling, the United States Supreme Court affirmed that public employees have a First Amendment right to refuse to subsidize the speech of unions through dues payments or any other fees — unless they knowingly consent to waive that right.

Janus was a huge step forward for workers’ rights.

But the case left one big question on the table: If unions can no longer force workers to give them money against their will, can they still be forced to let unions speak for them?

The question turns on the legality of so-called “exclusive representation” clauses.

The term refers to the claimed right of public unions, backed up by various state laws, to “represent” the entirety of a given workforce — even if a majority of its workers do not consent to the representation.

Once a certain threshold is met (usually 30 percent voting in support), the union simply purports to speak for all employees in contract negotiations, lobbying and even political speech on controversial issues.

The result is a system that turns the First Amendment’s guarantee of free association on its head.

But a petition for review recently filed with the court, in which Freedom Foundation filed a brief in support, is a perfect opportunity to settle the constitutionality of exclusive representation laws once and for all.

In its brief, the Freedom Foundation argues that California is a textbook example of exclusive representation gone wrong. On the very day Janus was decided, California lawmakers enacted a statute designed to prevent workers from exercising their First Amendment rights affirmed in Janus.

This law, SB 866, erects several barriers between workers and their employers.

First, the law both prevents employers from seeing the waiver required by Janus (they have to take the unions’ word for it) and prevents employees from communicating their own preferences to their employers.

Second, SB 866 provides unions with a captive audience of new workers on whom it can exert pressure to join. These meetings are required to be kept a secret, and no one but the union or vendors are allowed to attend.

Lastly, SB 866 requires employers to divulge a whole host of each employee’s sensitive personal information to the unions to use in their pressure campaigns.

All these abuses are supposedly justified by exclusive representation.

“(T)he First Amendment protects freedom of association because it makes the right to express one’s views meaningful.” But more than the freedom of association is at stake given the continued reliance of unions on exclusive representation to expand their ranks and maintain their power.

Under laws like California’s SB 866, an employee’s right to the presumption that he or she has not waived their First Amendment rights is burdened, they are forced to endure undue union pressure and their personal information is even forfeit.

The Thompson petition should be granted by the Supreme Court to end the abuse of California public workers’ rights — and the rights of public workers across the country.

By TIMOTHY R. SNOWBALL, Litigation Counsel

What They

What They &

What she said: “Right-towork is nothing but businesses wanting slave labor. This never benefits workers or where they live. This is another Republican attack on workers.”

PEGGY What she SIMINGTON meant: “The probwith that logic is that nothing in Swisshome, Ore. Facebook post Feb. 25, 2021 right-to-work laws forces workers to do anything. If they’re happy in their union, they can stay and continue to support it. But if they’re not, they can leave and take their dues with them. The definition of slavery is forcing people to do something — which is what the unions want — instead of giving them the ability to do what they believe is best for themselves.”

n n n

What she said: “A right to work ... weakens a union’s structure (and) forces unions to have to cover those who are not paying dues.”

What she meant: “I take money from the unions, so I have to peddle lies like this. In fact, unions have to cover nonmembers only because their CBAs RAUMESH AKBARI Tennessee State Senator Tullahoma News always include ‘union security clauses’ — March 8 , 2021 which they demand so they can cry about how unfair it is. It isn’t the unrepresented workers who want it that way. It’s the unions.”

n n n What he said: “Workers in Montana are already free to choose if they wish to join a union or not.”

What he meant: “On paper, maybe. But in reality, unions continue to ignore the law — with a major assist from judges who owe their AL AKBLAD election to or- AFL-CIO Montana ganized labor. Missoula Current Unions grudg- Feb. 17, 2021 ingly admit workers have a right to opt out of union membership if they want, but they’re determined to make the process as difficult as possIble. Workers can choose for themselves, all right, as long as they’re willing to endure union intimidation, harrassment and lawsuits.”

THE CASE FOR FREEDOM

By JASON DUDASH Reprinted from REDSTATE.com

Feb. 10, 2021

T

case, a former student was even shot and took his money without his consent to death. After that experience, Laird even giving him notice of what was decided a police presence on campus happening or the opportunity to contest hese days it seems the news is inundated with increasingly dire projections about how much longer our daily lives will be disrupted as public health officials struggle to get a handle on the global COVID-19 pandemic. When the United States Supreme Court affirmed in the summer of 2018 that public-sector employees can’t be forced, as a condition of employment, to fund a union, United Teachers of Los Angeles (UTLA) and other unions hatched a plan to avoid compliance. Labor leaders would justify continuing to deduct dues from employees who wanted out by citing contracts they signed before the court case, Janus v. AFSCME, was even decided. Under those agreements, it could be argued that members were only allowed to leave the union (and cease paying dues) during a narrow annual “window period.” No matter that those agreements never so much as mentioned the First Amendment or the fact that members were waiving their constitutional rights. “They signed the paper,” the unions asserted. “Case closed.” Not so fast. What if a member modified his or membership agreement and crossed out the portion that attempted to restrict their options? Surely UTLA, overly concerned with the enforcement of fair contracts, would allow that person to leave, right? Wrong. Glenn Laird has been a teacher in California for 38 years. For the past 27, he’s operated Eagle Rock High School’s Graphics Lab, which focuses on teaching students graphic design, visual advertising and digital marketing. Over the course of his career, Laird has taught approximately 16,000 to 17,000 helped ensure the safety of both students and teachers. Consequently, he sent a letter to UTLA requesting it terminate his membership and stop taking his money. But the union responded that, per his membership agreement, he was locked in until the next “window period,” seven months away. There was just one problem: When Laird signed his most recent membership card, he took a marker and crossed out the window period language before returning it to the union. Once it was accepted, that agreement became the operative contract governing his membership. For all intents and purposes, Laird should have been allowed to leave the union at any time. But not according to UTLA, which refused to honor the terms of its agreement with Laird and continued to take his money against his will for another eight months (even after the supposed “window period” should have occurred). So much for honoring contracts. This week, Glenn Laird decided to fight back. With the help of Freedom Foundation, a national workers’ rights organization, Laird has brought a federal civil rights lawsuit against UTLA to protect his First Amendment and other constitutional rights. And to get his money back. Specifically, Laird alleges that by taking his money without his affirmative consent as explained in Janus, UTLA and Los Angeles Unified School District are violating his First Amendment right to refuse to hand his money over to fund speech he disagrees with. In addition, Laird alleges the union also deprived him of his rights to procedur- al due process, because it it. Finally, Laird alleges that by being forced to communicate his “opt-out” to UTLA, a group with a direct financial interest in not letting members leave, instead of his actual employer, his right to due process was also violated. Glenn Laird’s case shows that UTLA’s and other unions’ strategic reaction to Janus was never about enforcing valid contracts. Instead, it was about doing everything it could to keep members locked in against their will and keep the dues money flowing. According to UTLA, the First Amendment and other constitutional guarantees are no more than inkblots that can be ignored when inconvenient. W hen the United States Supreme Court affirmed in the summer of 2018 that public-sector employees can’t be forced, as a condition of employment, to fund a union, United Teachers of Los Angeles (UTLA) and other unions hatched a plan to avoid compliance. Labor leaders would justify continuing to deduct dues from employees who wanted out by citing contracts they signed before the court case, Janus v. AFSCME, was even decided. Under those agreements, it could be argued that members were only allowed to leave the union (and cease paying dues) during a narrow annual “window period.” No matter that those agreements never so much as mentioned the First Amendment or the fact that members were waiving their constitutional rights. “They signed the paper,” the unions asserted. “Case closed.” Not so fast. What if a member modified his or membership agreement and crossed out the portion that attempted to restrict their options? Surely UTLA, overly concerned with the enforcement of fair contracts, would allow that person to leave, right? Wrong. Glenn Laird has been a teacher in California for 38 years. For the past 27, he’s operated Eagle Rock High School’s Graphics Lab, which focuses on teaching students graphic design, visual advertising and digital marketing. Over the course of his career, Laird has taught approximately 16,000 to 17,000 students. Laird has also been a proud, dues-paying member of UTLA since he first began teaching. He even spent time as UTLA’s assigned co-representative on campus, helping members understand and enforce their contractual rights under applicable collective bargaining agreements. Until two years ago, Laird participated and supported UTLA’s efforts to ensure teachers in the district Consequently, he sent a letter to UTLA requesting it terminate his membership and stop taking his money. But the union responded that, per his membership agreement, he was locked in until the next “window period,” seven months away. There was just one problem: When Laird signed his most recent membership card, he took a marker and crossed out the window-period language before returning it to the union. Once it was accepted, that agreement became the operative contract governing his membership. For all intents and purposes, Laird should have been allowed to leave the union at any time. But not according to UTLA, which refused to honor the terms of its agreement with Laird and continued to take his money against his will for another eight months (even after the supposed “window period” should have occurred). So much for honoring contracts. During March, Glenn Laird decided to fight back. With the help of the Freedom Foundation, a national workers’ rights organization, Laird has brought a federal civil rights lawsuit against UTLA to protect his First Amendment and other constitutional rights. And to get his money back. By taking his money without his affirmative consent as directed in Janus, UTLA and Los Angeles Unified School District violated Laird’s First Amendment right not to fund speech with which he disagrees, and refusing him the opportunity to contest it. Finally, Laird alleges that by being forced to communicate his “opt-out” to UTLA, a group with a direct financial interest Enough Enough Veteran California teacher, teacher, UTLA member opts out, files lawsuit after union voices support for defunding law enforcement By TIMOTHY R. SNOWBALL, Litigation Counsel is thousand students.received fair pay increases. in not letting members leave,

Laird has also been a proud, dues This included participation instead of his actual employer, paying member of UTLA since he first in rallies, meetings and his right to due process was began teaching. He even spent time as picket lines. also violated. UTLA’s assigned co-representative on But when UTLA joined in Glenn Laird’s case campus, helping members understand and enforce their contractual rights vithe “Defund the Police” movement last spring and began callshows that UTLA’s and other unions’ strategic under applicable collective bargaining ing for the removal of police from reaction to Janus was never agreements. Until two years ago, Laird participated and supported UTLA’s efforts to ensure teachers in the district received fair pay increases. This included participation in rallies, meetings and picket lines. olated his free speech rights campus, Laird decided enough was enough. As a longtime teacher, he had witnessed numerous incidents of campus violence. In one case, a former student was even shot to death. After that experience, about enforcing valid contracts. Instead, it was about doing everything it could to keep members locked in against their will and keep the dues money flowing. According to UTLA, the First Amendment and other

But when UTLA joined in the “De-Laird decided a police constitutional guarantees fund the Police” movement last presence on campus are no more than inkspring and began calling for helped ensure the blots that can be the removal of police from safety of both stu- ignored when campus, Laird decided dents and teach- inconveenough was enough. ers. nient.

As a longtime teacher, he had witnessed numerous incidents of campus violence. In one