[EL] Serious Question About Knox v. SEIU
Estelle Rogers
erogers at projectvote.org
Fri Jun 22 09:00:28 PDT 2012
Also by Benjamin Sachs:
Friday, June 22, 2012
Supreme Court Ruling Hampers Unions’ Political Speech
Guest post by Professor Benjamin Sachs
Until yesterday, it was voters and legislators who got to decide
whether they wanted to live in a right-to-work state. With Knox v.
SEIU, the Supreme Court began to assume that decision-making
responsibility for the rest of us. At least when it comes to the
public sector, Knox takes a giant step in the direction of holding
that any rule requiring employees to pay their fair share of the
collective bargaining bill is unconstitutional. That’s a dramatic
departure from prior precedent. It’s a striking example of judicial
activism. And it’s potentially an existential threat to public sector
unions.
The trouble comes primarily from two components of the Court’s
opinion. The first is the Court’s newfound skepticism about the
sufficiency of free-rider arguments for First Amendment challenges in
the public employment context. The second is the Court’s new
insistence – at least in certain circumstances – on “opt-in”
arrangements in the union dues setting. If there’s any good news
about Knox, it’s that most of the worst parts of the opinion are
dicta. That means the case does not give lower courts the latitude to
impose a right-to-work regime – one in which any and all mandatory
dues payments are illegal – on the nation’s public sector workforce.
But before we get into the opinion in earnest, some brief background
is in order.
A good number of states have decided that collective bargaining can be
in the interests of the public. In these states, where public
employees vote to form a union, the employer has an obligation to
bargain with the union. But the union also has an obligation –
namely, to represent all the workers in the bargaining unit whether or
not those workers choose to become union members. To make sure that
each worker pays her fair share of the costs of representation, and to
ensure that nobody gets to free ride on the dues paid by others, state
governments allow employers to require everybody in the unit pay dues.
Over the years, the Supreme Court has crafted a doctrine to structure
and police these mandatory dues arrangements. The basic rule has been
this: in order to avoid the free-rider problem, public employers can
require that employees pay their fair share of the union’s collective
bargaining and contract administration expenses, but, to avoid a
compelled political speech and association problem, employees have
been given a right to opt out of funding the union’s political program.
That’s the background against which Knox is decided. And although the
Knox holding addresses a particular accounting procedure that SEIU
used in California in 2005, the opinion goes far beyond dealing with
the SEIU assessment. Reaching beyond what was even briefed or argued
in the case, the five-justice majority casts serious doubt on whether
a state’s interest in overcoming free riding can any longer justify
mandatory dues payments in the public sector – even when it comes to
dues payments for collective bargaining and contract administration.
As the Court put it, “free-rider arguments . . . are generally
insufficient to overcome First Amendment objections.”
The Knox Court also questions whether, when it comes to the union’s
political spending, it is constitutionally sufficient to allow
objectors to opt out of paying dues or, instead, whether the union
must secure employees’ affirmative opt-in before spending dues on
politics. The Court holds that, with respect to the particular SEIU
assessment in this case, an opt-in is constitutionally required. This
is, in itself, a marked departure from the Court’s longstanding rule
that opt-outs are constitutionally sufficient. But here, too, the
Court’s language goes beyond what was necessary to rule on the SEIU
matter. As the concurring and dissenting opinions point out, the
Court’s reasoning on the constitutional permissibility of opt-out
agreements would seem to extend to all mandatory dues arrangements.
To be clear, if opt-in arrangements are the only constitutional ones,
that means that all forms of mandatory dues arrangements are
unconstitutional. So, jettisoning the free-rider rationale or
striking down opt-out agreements will have the same effect – it’ll be
right-to-work in the public sector.
These pieces of the Knox decision are troubling, but the Court’s
increasing constitutional skepticism about mandatory union dues raises
another set of concerns that demands attention. In particular, the
Court’s concern for avoiding compelled funding of union political
speech stands in stark contrast to the lack of concern for compelled
funding of corporate political speech.
The contrast is clearest in the public sector. Here’s how it works:
The vast majority of people who work for the government – state, local
and federal employees – are required to make contributions to a
pension plan. Public pensions, moreover, are defined benefit plans,
which means that employees don’t have any say in how their mandatory
contributions are invested. Not surprisingly, pension plans invest
employee contributions heavily in corporate securities: in 2008, for
example, public pensions held about $1.15 trillion in corporate stock.
In Citizens United, of course, the Supreme Court held that
corporations have a First Amendment right to fund electoral
expenditures with general corporate treasuries, and corporations are
taking ample advantage of the opportunity. So, if you’re a public
employee in California or New York or Arkansas (or nearly any other
state), it is now a condition of your employment that you make pension
contributions that can be used to finance corporate political
advertisements. If the Court means what it says about compelled union
political speech and association, it has to see that this compelled
corporate political speech and association is similarly
unconstitutional.
The problem, though, isn’t restricted to the public sector. The
Supreme Court, in a case called CWA v. Beck, held that the same rules
about mandatory union dues that it crafted for public employee apply
to private employees. So, private sector unions are prohibited from
spending even one dime of general treasury money on politics when
individual employees object to such use. In contrast to this union
rule, however, corporate law permits corporations to spend their
assets on politics even in the face of individual shareholder
objections. To put it simply, the law gives employees the right to
opt out of funding union political speech, but shareholders get no
right to opt out of funding corporate political speech.
This kind of differential treatment of political speakers is
inconsistent with the American ideal of treating political speakers
equally. Indeed, imposing stricter rules on unions than corporations
may well be a constitutional problem, even in the private sector,
unless there’s a valid reason for treating unions and corporations
differently in this context. And although space doesn’t permit me to
make the case here, I have argued elsewhere that unions and
corporations are analogous in the ways that matter most for this
analysis.
In short, taking seriously the arguments in Knox and the Court’s other
cases about compelled political speech and association means extending
these principles beyond the union context and to the corporate one.
This kind of extension of Knox would not only be faithful to the
Constitution, it would help restore some balance to a currently
unbalanced compelled speech and association doctrine.
-----
Benjamin Sachs is a professor at Harvard Law School where he teaches
labor law. He is author, most recently, of Unions, Corporations, and
Political Opt-Out Rights after Citizens United (Columbia Law Review
2012).
Estelle H. Rogers, Esq.
Legislative Director
Project Vote
202-546-4173, ext. 310
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On Jun 22, 2012, at 9:59 AM, Liptak, Adam wrote:
This interesting article by Benjamin Sachs in the Columbia Law Review
explores these questions:
http://columbialawreview.org/assets/pdfs/112/4/Sachs.pdf
________________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu
] On Behalf Of Samuel Bagenstos [sbagen at gmail.com]
Sent: Friday, June 22, 2012 9:57 AM
To: richardwinger at yahoo.com
Cc: law-election at uci.edu
Subject: Re: [EL] Serious Question About Knox v. SEIU
Maybe. But (a) maybe every insurance company in my state is engaged
in some ideological/political expenditures (if not all on the same
side or the same issue), and I'd just prefer that my money go to
paying claims and associated administrative expenses rather than
subsidizing political speech on issues that I have not made my own;
and (b) I don't necessarily have to work in the public sector, not all
public sector jobs are unionized, and not all unionized public sector
jobs are represented by the same union. If I don't like AFT, I can
work as a teacher in a private school (where, if I have a union, it
won't be a public sector one), or a charter school (where if I try to
unionize they'll fire me for sure!), or I can work in a next-door
district represented by NEA.
Samuel R. Bagenstos
Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109
sambagen at umich.edu<mailto:sambagen at umich.edu>
http://web.law.umich.edu/_FacultyBioPage/facultybiopagenew.asp?ID=411
http://disabilitylaw.blogspot.com/
Twitter: @sbagen
On Jun 22, 2012, at 9:48 AM, Richard Winger wrote:
I think the problem with this very thoughtful analogy is that you have
a choice of auto insurance companies, and a choice of health insurance
companies. But if you are a worker in a union shop, you don't have a
choice of labor unions; there is only one.
Richard Winger
415-922-9779
PO Box 470296, San Francisco Ca 94147
--- On Fri, 6/22/12, Samuel Bagenstos <sbagen at gmail.com<mailto:sbagen at gmail.com
>> wrote:
From: Samuel Bagenstos <sbagen at gmail.com<mailto:sbagen at gmail.com>>
Subject: [EL] Serious Question About Knox v. SEIU
To: law-election at uci.edu<mailto:law-election at uci.edu>
Date: Friday, June 22, 2012, 6:44 AM
Yesterday's decision in Knox v. SEIU, and particularly the broad dicta
in the majority opinion, lead me to ask the following question: If I
live in a state where (a) state law requires me to buy liability
insurance as a condition of registering a car, and (b) some or all of
the auto insurance companies in my state spend money to advocate for
or against ballot propositions regarding insurance regulation, am I
constitutionally entitled to a rebate of the portion of my premium
that went to such expenditures? Is the insurance company required to
make a Hudson-style disclosure of its political and ideological
expenditures so I can opt out?
There could be an easy or obvious answer to this question, but I am
interested in others' thoughts.
Samuel R. Bagenstos
Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109
sambagen at umich.edu<x-msg://759/mc/compose?to=sambagen@umich.edu>
http://web.law.umich.edu/_FacultyBioPage/facultybiopagenew.asp?ID=411
http://disabilitylaw.blogspot.com/
Twitter: @sbagen
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