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.
On Thursday, 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 two California campaign initiatives – without giving its nonmembers a chance to opt out of these political campaign contributions.
Critics of the decision are blasting it, as one union official put it to the Sacramento Bee, as 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 was deducted by force from their paycheck and used to support conservative tax-limiting initiatives or Republican candidates? Would they be OK with that? We know the answer.
Fortunately, the Supreme Court recognized by a 7-2 vote – with two liberal justices dissenting – the enormous free-speech issues at stake here. 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. The First Amendment creates a forum in which all may seek, without hindrance or aid from the State, to move public opinion and achieve their political goals. ‘First Amendment values [would be] at serious risk if the government [could] compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that [the government] favors.’ United Foods, 533 U. S., at 411. Therefore, 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.”
The Hudson notice refers to the requirement 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. It’s a simple concept outlined by the justices above: People who choose not to belong to a group should not be forced by the government to pay for that group’s political priorities, especially given that those priorities often fly in the face of the beliefs of nonmembers. If you disagree with me, then I’m sure you won’t mind having a portion of your salary deducted to help candidates who advocate policies chosen by me, not you.
While the decision simply upholds basic tenets of freedom and fairness, it should indeed be viewed as part of the growing national backlash against the special privileges that unions – especially those in the public sector – have come to enjoy in recent years thanks solely to their political power. It’s ironic that SEIU took money from nonmembers to specifically battle a statewide proposition that would have stopped them from being able to take such money in the future. There’s something disturbingly totalitarian about that – making me give you money that you can use to stop me from exerting my rights.
I’ve been shocked by the totalitarian tactics that unions routinely use, such as their attempt in San Diego to void a pension-reform election by appealing to a statewide board of their cronies who were expected to declare the vote an unfair labor practice. Fortunately, the courts nixed that idea. But unions don’t ever apply my basic fairness test. Their goal is simple – exert whatever benefits them at the time, regardless of how wantonly it crushes basic constitutional precepts. Just look at how the SEIU Local 1000 handled the specific dues issue at hand.
As the 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 entire matter of whether it’s appropriate for unions to have the opt-out provision rather than the more sensible opt-in requirement. 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.
Think of it this way – how fair would it be if, say, the cable company took the money for the full-package cable programming and forced you to file paperwork once a year to get a portion of it back if you chose a less-comprehensive set of programming? What if they played games with the numbers so they could keep more money than they should be allowed to keep?
The dissenting opinion, written by liberal 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, then, was not the substance of the majority opinion, 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 the form of another “paycheck protection” initiative in November.
But, regardless of how California’s fickle voters vote, it is entirely 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 when it cut to the chase: “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