[EL] Serious Question About Knox v. SEIU

Fri Jun 22 14:26:42 PDT 2012

A few quick points:

1. I'm not sure I'm persuaded by economic theory, but classical microeconomic theory suggests that the sale price of a good or service being offered by a non-monopolist is equal to the marginal cost of providing the good or service. Lobbying and political speech costs are not marginal costs; in a real sense, then, the consumer is not paying for the lobbying or speech of a non-monopolist seller. The same is not true for unions in closed shop cases; the union is a monopoly with regard to the particular employer, and in some cases with regard to an industry, for provision of collective bargaining services.

2. The "consumer" of collective bargaining services does not have a free choice of whom to buy the services from. A vote of other employees binds the dissenting employee as a matter of law to buy those services from the union. If a consumer of other kinds of goods or services  does not like one provider, perhaps because of its lobbying or political speech, they can go elsewhere and are not bound by a vote of other consumers to continue to buy from the seller whom they consider to be objectionable. Consider recent political boycotts.

3. It is true that in some instances none of the feasible choices may be ones the consumer likes. Perhaps all auto insurance companies do the same kind of lobbying and engage in the same kind of political speech that a particular consumer finds objectionable. It is not feasible for one consumer to set up an insurance company to meet his or her insurance needs. But there typically would be quite a few people who would have similar objections. There is likely then to be an insurance company that will decide to cater to them, or some of them can join forces to create a provider of insurance services. AARP is a quite liberal organization that provides discounted insurance programs and other discounts. It held something of a monopoly on its space until a conservative counterpart was formed (AMAC?). Note that there did not have to be a majority in favor of an alternative for the alternative to be made available.

4. In some states at least, it is possible for people to comply with mandatory auto liability insurance laws by posting a cash bond equal to the minimum required liability policy limits. Obviously that is not a practical option for many people, but there is not strictly speaking a requirement to buy insurance.

5. Knox involved particularly egregious facts. The SEIU should have known that if you act like a hog you are likely to be slaughtered. The special assessment was entirely for political purposes in response to new challenges faced by the union, yet the union required all non-members to pay part of it and did not give non-members a new chance to opt out from the use of their funds for these new political purposes.

More, perhaps, later.

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Doug Hess
Sent: Friday, June 22, 2012 12:48 PM
To: law-election at department-lists.uci.edu
Subject: [EL] Serious Question About Knox v. SEIU

Isn't the problem with these analogies that a union member's relationship with their union is not comparable to a consumer's relationship to a supplier on the auto insurance market? For instance, you have some voice/vote in your union, can be active in the union's political affairs, etc. As such, it is more like a political community than the market relationship of insurance. (The fact that a single union member has little power on their own isn't all that relevant; a single voter doesn't have much power on their own either.)

The idea that you "vote with your dollar" is not relevant in these cases (i.e., the political activities of the corporation are likely fairly opaque; when many sellers share political interests there is little choice [as Prof. Bagenstos pointed out], etc.).

Douglas R. Hess, PhD
Washington, DC
202-955-5869
douglasrhess at gmail.com<mailto:douglasrhess at gmail.com>

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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<mailto:sambagen at umich.edu%3cmailto: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
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