[EL] Serious Question About Knox v. SEIU

Fri Jun 22 12:30:51 PDT 2012

I've never been especially persuaded by Abood myself, but for now I want to take it seriously.  I'm simply trying to understand the limits of the Abood principle as glossed by Knox.  And Justice Marshall's one-justice concurrence in the judgment in PG&E seems to me to address a quite different question.  Justice Marshall's conclusion that PG&E does not give up its own negative speech rights simply because it is a regulated monopoly doesn't really draw a distinction with public-sector labor unions, nor does it say anything about whether PG&E's customers should have Abood-type rights to prevent PG&E from spending their money on ideological and political speech to which the customers object.  I don't imagine you would suggest that a city could require AFSCME to include in its dues bill a statement from National Right to Work explaining why unionism is horrible -- but that seems to me the precise analogy with PG&E.  The question I posed is whether customers of auto insurance companies who are required by state law to purchase auto insurance if they are to register a car, are, under the Abood/Knox principle, entitled to object to the ideological or political uses of the money they are required to pay -- just as workers who are required by state law to contribute an agency fee if they are to work in a unionized public workplace are, under the Abood/Knox principle, entitled to object to the ideological or political uses of the money they are required to pay.

One answer to this question might be that, in the special case of auto insurance companies whose business is mandated by the state, Bellotti and Citizens United don't apply, and states can simply ban political or ideological expression by these organizations.  If that were true, then there wouldn't be any Abood/Knox problem.  But that doesn't seem to me tenable.  So I'm still, honestly, wondering what the difference is between the two situations -- or if there just isn't one.

(Also, a minor point:  I certainly don't take the fact that Justice Marshall or anyone else was a liberal as a prima facie reason for me, as a fellow liberal, to agree with what he said about a particular case.  So I'm not sure what is the analytical as opposed to the rhetorical significance of the "even-the-liberal-New-Republic" move here.)

On Jun 22, 2012, at 2:59 PM, Volokh, Eugene wrote:

>                 I think Abood is wrong, chiefly because I think that the government is free to decide to pay each employees $X and then give $Y to the union (as, say, a “labor peace fee”), and that this is essentially what is happening with the dues deduction in Abood.
>  
>                 But as to the dues to unions vs. payment to businesses question, I should note that Justice Marshall discusses the latter point inPG&E v. Public Utilities Commission in upholding the rights even of regulated monopolies:
>  
> “The State seizes upon appellant's status as a regulated monopoly in order to argue that the inclusion of postage and other billing costs in the utility's rate base demonstrates that these items "belong" to the public, which has paid for them. However, a consumer who purchases food in a grocery store is "paying" for the store's rent, heat, electricity, wages, etc., but no one would seriously argue that the consumer thereby acquires a property interest in the store. That the utility passes on its overhead costs to ratepayers at a rate fixed by law rather than the market cannot affect the utility's ownership of its property, nor its right to use that property for expressive purposes, see Consolidated Edison Co. v. Public Service Comm'n of N. Y., 447 U. S. 530, 534, n. 1 (1980). The State could have concluded that the public interest would be best served by state ownership of utilities. Having chosen to keep utilities in private hands, however, the State may not arbitrarily appropriate property for the use of third parties by stating that the public has "paid" for the property by paying utility bills.”
>  
>                 And Justice Marshall joined the majority in Abood.  Perhaps he was mistaken in one or both cases – as I said, I think he and all the other Justices were in Abood – but it’s worth noting that this issue arose, and even a liberal Justice such as Justice Marshall treated purchases from businesses (even ones that one practically has to deal with) differently from compelled dues payments to unions.
>  
>                 Eugene
>  
>  
> From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Mathew Manweller
> Sent: Friday, June 22, 2012 11:46 AM
> To: sbagen at gmail.com; liptaka at nytimes.com; richardwinger at yahoo.com
> Cc: law-election at uci.edu
> Subject: Re: [EL] Serious Question About Knox v. SEIU
>  
> I think the boring answer to this question, but probably the most on point legally, is that the insurance company is spending their own money and the SEIU is spending another person's money. Now, we as customers may think of it as "our money" but once you give it to an insurance company--for whatever rate/cost, whatever they plan to do with it, etc, it is THEIR money. They don't need our permission on how to spend it. In the case of the SEIU, they are taking someone elses money out of their paycheck. 
> 
> 
> 
> 
> 
> 
> Central Washington University
> Associate Professor of Political Science 
> manwellerm at cwu.edu
> 509-963-2396
> 
> ?The first lesson of economics is scarcity. There is never enough of anything to fully satisfy all who want it. The first lesson of politics is to disregard the first lesson of economics.? ? Thomas Sowell
> 
> >>> "Liptak, Adam" <liptaka at nytimes.com> 06/22/12 7:02 AM >>>
> 
> 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
> 
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120622/4bdff0c9/attachment.html>