U.S. Supreme Court

Chemerinsky: High Court's Union Dues Case May Change the Political Landscape

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Erwin Chemerinsky

Amid the blockbuster decisions of the last two weeks of the U.S. Supreme Court’s term, a decision that received little media attention is likely to have a major political impact. In Knox v. Service Employees Union International, Local 1000, decided June 21, the Supreme Court clearly indicated a dramatic change in the ability of public employee unions to participate in the political system.

Under California law, and those in many other states, public-sector employees in a bargaining unit may decide by majority vote to create an “agency shop” arrangement under which all the employees are represented by a union selected by the majority. Although employees are not required to join the union, they must nevertheless pay the union an annual fee to cover the cost of union activities related to collective bargaining.

The Supreme Court, beginning with Abood v. Detroit Board of Education, decided in 1977, has said that non-members cannot be forced to pay for the political activities of the union, but they have to pay for the union’s collective bargaining activities because they benefit from them. In 1986’s Chicago Teachers Union v. Hudson, the Supreme Court said that unions must go through an annual accounting procedure, calculating the percentage of dues that went to collective bargaining as opposed to political activities.

The usual approach is that employees who do not want to join the union and support its political activities must opt out. The Supreme Court ruled five years ago that if a state chooses it can require that union members who want to participate in political activities must opt in, though that is not the law in California and several other states.

In 2005, California Gov. Arnold Schwarzenegger supported two ballot initiatives that would have decreased the influence of public employees unions in the state. In fact, one of the initiatives would have required that non-members affirmatively approve the use of their dues for political activities. The SEIU–which represents many public employees–imposed a special assessment on its members to fight these initiatives. The campaign was successful and the initiatives were defeated. Some members, though, objected that they did not have the ability to opt out of this assessment and they brought suit.

In Knox v. SEIU, the court held the First Amendment rights of non-union members had been violated. The court could have decided the case on narrow grounds, simply holding that there should have been a calculation as to the percentage of the special assessment used for political purposes and that non-members should have been able to opt out of this. That was actually the position advocated by the plaintiffs, the non-union members who brought suit.

But Justice Samuel A. Alito Jr., in an opinion joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas, instead questioned the court’s decisions of the last 35 years, which have allowed unions to require that non-members opt out of providing funds for political activities. He wrote: “Similarly, requiring objecting nonmembers to opt out of paying the nonchargeable portion of union dues—as opposed to exempting them from making such payments unless they opt in—represents a remarkable boon for unions. Courts ‘do not presume acquiescence in the loss of fundamental rights.’”

In light of this objection to the traditional opt-out procedure, the court held that for special assessments non-union members can be charged for political activities only if they affirmatively choose to provide funds. The court stated: “[t]herefore, when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent.”

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, concurred in the judgment. Although they concluded that non-members should have been able to opt out of the special assessment, they strongly disagreed with the majority’s requirement that members opt in. Justice Sotomayor stressed that none of the parties had urged that approach, that possibility had not been briefed or argued before the court, and it represented a major departure from precedent.

Justice Stephen G. Breyer dissented, joined by Justice Elena Kagan, and would have allowed adjustment in the non-member’s payments the following year to be sure that they were not paying for political activities. Like Justice Sotomayor, Justice Breyer saw the majority as indicating a major change in the law. Justice Breyer explained: “The decision is particularly unfortunate given the fact that each reason the court offers in support of its ‘opt-in’ conclusion seems in logic to apply, not just to special assessments, but to ordinary yearly fee charges as well.”

The holding in Knox is narrow, but the majority’s reasoning is broad. The holding is limited to special assessments by unions, but the majority opinion could not be clearer in indicating the view that non-members should be required to opt in before their funds can be used for political activities. The result, assuming this becomes the law, will be a substantial impediment to political action by public employee unions.

There is a profound irony to the Supreme Court’s decision. In 2010, in Citizens United v. Federal Election Commission, the Supreme Court expressly rejected the concern that corporations should not be able to spend the money of their shareholders on political expenditures. In prior decisions, the Supreme Court specifically said that the government could restrict independent political expenditures by corporations so as to protect shareholders from having their money spent for political candidates they oppose. But Citizens United brushed this concern aside, overruled these decisions, and held that corporations can spend unlimited sums to have candidates elected or defeated.

In light of Knox, one solution for state legislatures will be to require opt-in for both corporations and unions. A state can adopt a law which says that neither a corporation nor a union can spend money on political activities without the consent of the individuals. If the Supreme Court is going to require opt-in for unions, it seems only fair and appropriate that the same be required for corporate political spending.

Both Knox and Citizens United came to the court posing very narrow questions. In both instances, the five conservative justices on their own substantially broadened the issues and significantly changed the law. Together, they are very much changing the political process in the United States, greatly increasing the influence of corporations and diminishing the influence of unions.

Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.

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