“I strongly supported one of the [ballot] propositions and was angry that I was forced to pay to oppose it,” said Dianne Knox, reflecting on what would become a seven-year legal battle against one of the most powerful unions in America.
Knox was referring to Proposition 76, a California ballot initiative in 2005 aimed at requiring union officials to receive affirmative consent from nonmember employees before charging them for political activities. To a layperson, it sounds like a modest constraint, but to SEIU officials, Proposition 76 represented a serious threat to their lucrative forced-dues empire.
The union’s response — a “special assessment” that collected money for a political action fund from union and nonunion workers alike — set in motion a legal battle that continues to this day.
In California and other states that lack right-to-work laws, public- and private-sector employees can be forced to pay union dues as a condition of employment. What they can’t be forced to do, however, is pay for activities unrelated to workplace bargaining, such as union political activism.
Although workers are technically entitled to information about union expenditures and an opportunity to withdraw their financial support for union politics, union officials often discourage employees from following through by withholding information about their workplace rights or throwing up bureaucratic roadblocks to any attempt to stop paying for union political activism.
Proposition 76 was intended to shift the burden from nonunion employees, whose First Amendment rights are at stake, to union officials, whose only interest at stake is their ability to collect forced dues.
This modest proposal provoked a rancorous Big Labor counter-attack. SEIU operatives unleashed a blizzard of ads and get-out-the-vote drives to protect their forced-dues collection racket.
The union’s massive spending campaign paid off when California voters rejected Proposition 76 at the polls.
But Knox didn’t take the union’s “special assessment” lying down. With the help of attorneys from the National Right to Work Foundation, she spearheaded a class-action lawsuit against the SEIU’s fundraising scheme that eventually reached the Supreme Court.
In 2007, a federal district court ruled that SEIU was required to provide a notice to nonunion employees about the assessment, allow them to opt-out of paying into the union political fund, provide a refund of monies spent on union politics, and pay interest from the dates of the deductions to nonmembers who chose to opt out.
After SEIU lawyers appealed the case, a Ninth Circuit panel reversed that decision in December 2010.
The only option left was to appeal Knox’s suit to the Supreme Court. Against all odds, the nine justices announced on June 27, 2011 that they would hear the case.
On June 12, 2012, the Court ruled 7–2 in the plaintiffs’ favor, striking down the SEIU’s fundraising scheme and reaffirming the rights of public-sector employees to refrain from supporting union politics.
More significantly, Justice Samuel Alito authored an expansive five-member opinion that raises the possibility that the Court could require unions to receive affirmative consent from nonmember employees before spending their money on politics at some point in the future.
“Even a full refund would not undo the violation of 1st Amendment rights,” wrote Alito, explaining the logic of affirmative consent. “Therefore, when a public-sector union imposes a special assessment or dues increase [for political purposes], the unions must provide a fresh . . . notice and may not exact any funds from nonmembers without their affirmative consent.”
Although the immediate implications of Knox are confined to the nearly 40,000 California state employees who can finally reclaim their dues, Alito’s reasoning could prove prophetic. Public employees’ First Amendment rights will be considerably strengthened if the Court pivots from Knox to a future decision requiring all public-sector unions to receive affirmative consent before collecting dues for politics.
Knox gives hope that public employees will no longer have to interpret complex opt-out procedures to refrain from supporting union politics they may disagree with. Ironically enough, the prospect of actually asking nonunion employees for permission before spending their dues on politics is what SEIU operatives were so afraid of in 2005. Their strident political activism, paid for in part by unwilling nonunion employees, could lead to new Supreme Court precedents that protect workers’ First Amendment rights while constraining union officials’ special privileges.
— Mark Mix is president of National Right to Work.