Politics & Policy

Unions and Forced Political Speech

Hopefully, the U.S. Supreme Court will return First Amendment rights to California’s public employees.

The Service Employees International Union (SEIU) is being dragged to the Supreme Court for alleged First Amendment infringements. In Knox v. SEIU, Local 1000, the Court will decide whether the union forced non-members to pay for political speech and failed to give proper notice.

This court fight began in 2005. Before Arnold Schwarzenegger became another fallen star left blushing on the society pages, he took on the unions; he scared them so much, in fact, that SEIU, Local 1000 decided to garnish the wages of California’s public employees — including 28,000 public workers who were not union members — as an “Emergency Temporary Assessment to Build a Political Fight-Back Fund.” This political war chest paid for political ads and other efforts to defeat Proposition 75, a measure that would have restricted the use of union dues for political purposes, and Proposition 76, which would have imposed a cap on state spending.

If you’re wondering how a union can take money from people who are not union members, then you need an introduction to modern union rules in states without strong right-to-work laws — that is, laws that allow workers to refuse to pay union dues or join unions (though even then they are still covered by the union contract). Like 25 others, California is not a right-to-work state. As a result, those who have the privilege to work in unionized shops, or for the state of California itself, have to fund whatever union is recognized as their “monopoly bargaining representative.” So though the 28,000 state employees represented in the class-action suit were not members of SEIU, Local 1000, they had to pay SEIU 99.1 percent of full union dues.

The other 0.9 percent was knocked off because that’s what the union spends on members-only benefits. In addition, non-members could pay a reduced fee of 56.35 percent — funding only the union expenses that are “chargeable” to non-members against their will under Supreme Court precedent — if they formally objected. According to the Court, non-members cannot be forced to fund political activities — and under Chicago Teachers Local No. 1 v. Hudson, unions cannot collect money from non-members unless they first provide a breakdown of the fees and offer a chance to object. This is called a “Hudson notice,” and unions typically provide them annually.

So when SEIU, Local 1000 — after sending out its Hudson notice for the year — decided to take an additional portion of all employees’ paychecks for political ads, it was standing on dubious ground. Even those who objected had to pay 56.35 percent of the new fees — a number calculated based on the previous year’s budget, not on where these new funds would actually be spent. And though the union did send out a letter explaining the new charge, it did not provide a new Hudson notice. Eight plaintiffs filed a class-action suit.

U.S. District Court Judge Morrison C. England Jr. quickly issued a temporary restraining order that prevented the state controller from further garnishing the employee’s salaries to fund the political ads, but then the judge lifted the order and refused to issue a permanent injunction.

After Governor Schwarzenegger lost the votes on his referenda — partly because of ads paid for in this way — the plaintiffs appealed their case with the help of the National Right to Work Legal Defense Foundation. They won a lower-court decision, but the SEIU appealed the case to the Ninth Circuit.

The lawsuit went before a three-judge panel at the Ninth Circuit, which voted 2–1 in favor of the SEIU. How did the Ninth Circuit justify permitting a union to garnish non-members’ wages to fund ideological ads?

SEIU, Local 1000, claimed its “Political Fight-Back Fund” — the fund it had originally said, in the summer of 2005, was designated “for a broad range of political expenses, including television and radio advertising, direct mail, voter registration, voter education, and get out the vote activities” — was actually used for a variety of expenditures, not just political speech. The two-judge majority at the Ninth Circuit overlooked SEIU’s Orwellian rewriting of fact.

Judge Sidney R. Thomas wrote for the majority at the Ninth Circuit that the “Supreme Court has underscored . . . Congressional policy by enforcing the right of a union, as the exclusive collective-bargaining representative of its employees, to require nonunion employees to pay a fair share of the union’s costs.” He found that “the Union material indicated that the fund would be used for political activities. Yet, in response to inquiries, the Union specifically stated it intended to split the increase ‘between political actions and collective bargaining actions.’ Further, not all of the political activities fell into the ‘non-chargeable’ category.”

He also noted that the practice of calculating the rate for objectors based on the previous year’s expenditures is allowed by Supreme Court precedent — ignoring the special circumstance that this money was collected specifically for the purpose of political activity.

James Young, the staff attorney for the National Right to Work Legal Defense Foundation who litigated the case before the Ninth Circuit and will likely argue the case before the U.S. Supreme Court, said, “The First Amendment protects free speech and the freedom of association. In Knox, the union forced public employees to pay an ‘emergency fee’ that their own materials said was for political ads and other expenditures. This is unconstitutional, as it is forced speech. The Ninth Circuit got it wrong.”

To prove his point, Young points to the aforementioned case Chicago Teachers Local No. 1 v. Hudson, which held that “the constitutional requirements for the Union’s collection of agency fees include an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision maker, and an escrow for the amounts reasonably in dispute while such challenges are pending.”

In his dissent, the third judge on the Ninth Circuit panel, J. Clifford Wallace, wrote, “I dissent from the majority’s opinion because it is not faithful to the principles guiding the [U.S. Supreme] Court’s decision in Chicago Teachers Union v. Hudson.” Wallace quoted another Supreme Court case, Davenport v. Wash. Education Association, which held that “regardless of one’s views as to the desirability of agency-shop agreements . . . it is undeniably unusual for a government agency to give a private entity the power, in essence, to tax government employees.”

Finally, Wallace pointed out the obvious constitutional infringement when he wrote, “The Union’s interest lies in receiving a fair contribution to its collective bargaining expenses. The Union has no legitimate interest, however, in collecting agency fees from nonmembers to fill its political war-chest.”

No kidding.

Seen from a broader perspective, if unions in non-right-to-work states are allowed by the Supreme Court to tap the salaries of non-members for political advocacy, then those members have lost not only their right to free speech, but also their Fifth Amendment right to property.

So as the Left has been wildly claiming that Wisconsin’s Scott Walker, New Jersey’s Chris Christie, and Ohio’s John Kasich are attacking public employees’ rights, SEIU has been actually guilty of this charge. After all, there is no constitutional right to collectively bargain, but there are individual rights to free speech and association.

The Supreme Court must rule in favor of the plaintiffs in Knox and force SEIU, Local 1000, to return the monies it garnished from their wages. It wouldn’t be the first time they’ve overruled the Ninth Circuit.

Hopefully, the U.S. Supreme Court will return First Amendment rights to California’s public employees.

— Frank Miniter is the author of Saving the Bill of Rights.

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