[EL] Serious Question About Knox v. SEIU

Fri Jun 22 12:41:34 PDT 2012

Is it possible that another factor is the monopoly position of the union?
If so, might that mean if employees had a choice of union representation
(as I understand is the case in some European nations) that there would be
less of an issue?  So, for instance, if the state required all motorists to
purchase insurance from a single, specified insurance provider it would
then be more analogous a public sector union.

Just a thought, and perhaps not one worth pursuing.

------
Jonathan H. Adler
Johan Verheij Memorial Professor of Law
Director, Center for Business Law & Regulation
Case Western Reserve University School of Law
11075 East Boulevard
Cleveland, OH 44106
ph) 216-368-2535
fax) 216-368-2086
cell) 202-255-3012
jha5 at case.edu
http://www.jhadler.net
SSRN: http://ssrn.com/author=183995

*From:* law-election-bounces at department-lists.uci.edu [mailto:
law-election-bounces at department-lists.uci.edu] *On Behalf Of *Samuel
Bagenstos
*Sent:* Friday, June 22, 2012 3:31 PM
*To:* Volokh, Eugene
*Cc:* law-election at uci.edu
*Subject:* Re: [EL] Serious Question About Knox v. SEIU

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 in*PG&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)<http://scholar.google.com/scholar_case?case=1554910653142299503&q=pacific+gas+electric+first+amendment&hl=en&as_sdt=2,5>.
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

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