For people who truly are interested in a just and fair society, there’s one easy way to sort through some seemingly complex issues: turn the tables. If, for instance, one is debating a controversial law affecting a particular group, it’s best to think about how fair it would seem if that law were applied in the same way to you.
Recently, the U.S. Supreme Court issued a verdict in the case of Knox v. Service Employees International Union, Local 1000, showing how deeply it understands that basic concept. By a 7-2 vote, the high court slapped down the union for deducting money from its employees’ paychecks and using it to fight against California campaign initiatives—without giving its nonmembers a chance to opt out of these political campaign contributions.
Typically, a union official told the Sacramento Bee that the ruling us another “attack on the right of public sector workers to act collectively.” But let’s apply our test to these outraged union spokespeople. What if their money were deducted by force from their paycheck and used to support conservative tax-limiting initiatives? Would they be OK with that? We know the answer.
Ruled the court, “Public-sector unions have the right under the First Amendment to express their views on political and social issues without government interference. … But employees who choose not to join a union have the same rights.”
There’s a legal requirement [the Hudson rule] that nonmembers, who must pay union dues in union-shop states such as California to cover the portion of union efforts used to negotiate salary and benefit matters on all workers’ behalf, have a chance to opt out of those portion of the collected dues used for political purposes. The idea is they shouldn’t be forced to subsidize political activities that may fly in the face of their own beliefs. But the SEIU concocted a scheme to evade that requirement in order to, ironically, battle a statewide ballot initiative that would have limited their ability to unilaterally take such dues from members in the future.
As the Supreme Court explained, “In June 2005, respondent, a public-sector union (SEIU), sent to California employees its annual Hudson notice, setting and capping monthly dues and estimating that 56.35 (percent) of its total expenditures in the coming year would be chargeable expenses. A nonmember had 30 days to object to full payment of dues but would still have to pay the chargeable portion.”
After that 30-day time period expired, the union then imposed a huge surcharge on dues—a 25 percent assessment that would be used for the 2006 election. Because the 30-day opt-out period had expired, union officials figured they had come up with a clever way to circumvent the law. Nonmembers had to pay the amount and they provided no opt-out provision for the temporary dues increase. Eventually, the union offered to return the dues, but the court ruled that it is not a moot case—the union can collect dues, use them for political purposes and then after the political damage is done simply return the money if anyone bothers to sue.
Here’s the court again: “Under the First Amendment, when a union imposes a special assessment or dues increase levied to meet expenses that were not disclosed when the regular assessment was set, it must provide a fresh notice and may not exact any funds from nonmembers without their affirmative consent.” That’s clear and that’s fair.
The justices also made it clear that they are open to consider the broader matter of whether it’s appropriate for unions to be able to have the government deduct their dues from workers. Writing for the majority, Justice Samuel Alito’s explained: “By authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate.”
Interpretation: Please bring this broader opt-in/op-out issue to the court and we will invalidate the current, unfair way unions grab money from workers.
Currently, union members and nonmembers have their dues taken out of their paychecks by force and there’s nothing they can do about it if they want to keep their jobs. In practice, unions make it extremely formidable to opt out. They provide a small window of opportunity, require complex paperwork, and union members who opt out at times report harassment and intimidation by the union authorities. I am not against unions per se, but no one should be forced to fund them.
The dissenting opinion, written by Justice Stephen Breyer and joined by Elena Kagan, stated, “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. At least, its opinion can be so read. And that fact virtually guarantees that the opinion will play a central role in an ongoing, intense political debate.”
Their main problem was not the substance of the opinion, majority but their concern that the court is intruding too deeply into the opt-in/opt-out debate—a political debate that is coming to California voters in another “paycheck protection” initiative in November.
Regardless of how California’s fickle voters vote, it is unfair to require this system whereby the union takes the money and the member or nonmember must plead for a portion of it back. The majority got it right: “The general rule—individuals should not be compelled to subsidize private groups or private speech—should prevail.”
What a refreshingly fair and just ruling—and a reminder that the days of union special privilege might be subsiding.
Steven Greenhut is vice president of journalism at the Franklin Center for Government and Public Integrity.