Do Free Speech Rights Apply to Union Members, Too? In Knox v. SEIU, Supreme Court Soon to Rule on SEIU Funding Gimmicks
by Horace Cooper
Labor unions are notorious for coercive, strong-arm tactics. They have a sordid history of intimidating workers to join a union and stifling members and non-members who oppose that union's agenda. The facts in Knox v. SEIU show that California's public employees' union is no exception to this general rule, resorting to trickery and gimmicks in order to suppress the First Amendment free speech rights of 28,000 non-union workers.
The U.S. Supreme Court soon will decide whether California's Service Employees International Union ("SEIU") -- or any other union -- may temporarily hike union dues or issue special short-term assessments for political advocacy without formally notifying employees. In Knox v. SEIU, the Court will decide whether a State or its union may require a special union assessment intended solely for political campaigning purposes without giving formal notice, or providing employees with an opportunity to opt out of those assessments.
Under California law, California's non-union employees must pay compulsory "fair share fees" to the SEIU as a condition of their employment in order to defray the union's collective bargaining expenses.1 But the U.S. Supreme Court's First Amendment jurisprudence has recognized that every state and local employee is entitled to object to compulsory dues being used for political advocacy that is unrelated to collective bargaining, and as such, a notice advising employees of the union's expenses, as well as the fees and dues it plans to collect, is required.
In June 2005, the SEIU sent its annual notice laying out the union's finances and giving non-union employees thirty days to object to the fair share fee. After the thirty days had expired, the SEIU announced that a new, undisclosed fee would be assessed to fund the "Emergency Temporary Assessment to Build a Political Fight-Back Fund." According to the union, the money was slated for a variety of political advertisements and campaigns, including four California ballot initiatives aimed at reining-in the power of public sector unions -- not exactly geared to collective bargaining. The compulsory "Fight-Back Fund" fee, employees would later learn, amounted to a 25%-33% increase over the paycheck deductions that had been announced in June -- and this time, no one was able to object or opt-out.
In other words, the union forced workers to pay for "short term or interim assessment hikes" in order to fund left-wing initiatives and political activities that had absolutely nothing to do with bargaining for better benefits and wages.
Labor unions, of course, are not strapped for cash or shy about throwing money at political candidates or issues. One study estimates that labor unions spend roughly $800 million per year on political campaigns and activities.2 That's more than the Republican and Democratic parties combined! According to the Federal Election Commission, the SEIU alone spent more than $33 million on political initiatives during the 2008 presidential election.3
Fortunately, the U.S. Supreme Court has long held that because union fees often pay for more than merely collective bargaining costs, non-union members must be able to object to and avoid subsidizing the union's political and lobbying activities. In Teachers Local No. 1 v. Hudson, the Court held that "[b]asic considerations of fairness, as well as concern for the First Amendment rights at stake, ...dictate that the potential objectors be given sufficient information to gauge the propriety of the union's fee."4 Thus, the "sufficient information" that unions must provide to employees is commonly called the Hudson notice.
Sadly, but not surprisingly, the SEIU ignored Hudson's notice requirements and "basic considerations of fairness." Known as a hard-left union and frequent partner with the Communist Party USA, the SEIU used to work closely with ACORN, the corrupt leftist advocacy group, on many of its political initiatives. In this case, the union tried a ham-fisted sleight of hand technique to bilk an extra $12 million from employees in order to push its radical political agenda -- money that it likely never would have collected if it had played by the rules. By using this chicanery, not only were dues payers not given a chance to object, but those individual dues payers who had objected during the last notice were still forced to pay the new "interim" assessments along with everyone else.
Non-members made to pay the special assessment quickly filed suit in federal court, arguing that the assessment violated the First Amendment and asking the court for injunctive relief. The district court agreed and ruled in favor of the non-members, finding that the June Hudson notice was "inadequate to provide a basis for the Union's [special] Assessment." The court went on to note that it could not "be more clear that an Assessment was passed for political and ideological purposes."
The SEIU appealed to the Ninth Circuit Court of Appeals and a three-judge panel reversed the lower court's ruling. The Ninth Circuit -- the most liberal and frequently overturned court in the country -- held that the SEIU did not need to provide notice or an opportunity for non-members to object because (1) the collected expenses would be accounted for in the union's next annual Hudson notice; and (2) SEIU's opposition to California's Proposition 76 was an expense related to collective bargaining and therefore did not require a Hudson notice.5
The appellate court was wrong on both counts, first for ignoring the relevant principles established in Hudson and protecting the First Amendment interest of the non-members; and second for mischaracterizing Proposition 76. As the dissenting judge pointed out, Proposition 76 was a broad state spending initiative that would have given the governor a variety of fiscal powers, including "limited 'authority to reduce appropriations' for future state contracts, collective bargaining agreements, and entitlement programs," but it granted no authority to abrogate bargaining agreements or current state contracts.6
The Supreme Court will likely reject the Ninth Circuit's disingenuous reasoning and the union's attempt to use special assessments to avoid the First Amendment protections embodied in Hudson.
When states or their unions force employees to subsidize political advocacy through dues or fees or special assessments, they infringe upon the workers' fundamental constitutional rights.7 The Court has repeatedly ruled that it would violate the First Amendment for employees' salaries to be taken by the state, transferred to the union, and then used to promote a political agenda with which the employees disagree.8 Yet this is precisely what the SEIU tried to do, and what unions across the country have tried in one way or another to do for decades.
At bottom, Knox v. SEIU stands for the proposition that neither government nor its unions may compel any American to fund political advocacy. As a matter of First Amendment law, the SEIU cannot use its collective bargaining authority to circumvent constitutional protections designed to foster discourse and dissent, especially in cases like this one, in which the freedoms of dissenting workers in a unionized workforce are already faced with inordinate pressures to tow the union line and support political agenda they don't personally hold.
The burden in these types of cases should not fall on the individual to object to being forced to underwrite the union's lobbying efforts. Rather, as briefs filed in the case have cogently argued, the "Court should hold as a matter of First Amendment law that labor unions must obtain affirmative consent from workers before using expropriated funds for purposes of ideological speech or political campaigns."9 Indeed, it should.
By deceiving its members and skirting the law, the SEIU undermined free speech and freedom of expression. It deprived employees of their political voice and denied them their right to object. Even worse, the state's union confiscated the workers' hard-earned money and used it -- without their consent -- to pay for its own radical political initiatives. But the general constitutional rule in this country ought to favor individual freedom, not hinder it, and the Court will do right to reinforce this basic First Amendment principle when it hands down its decision in Knox v. SEIU.
Horace Cooper is a legal commentator and an adjunct fellow at the National Center for Public Policy Research.
1 Cal. Gov't Code § 3513(k).
2 Linda Chavez & Daniel Gray, Betrayal: How Union Bosses Shake Down Their Members and Corrupt American Politics (2004), 29.
3 Federal Election Commission, Summary Report of Independent Expenditures for the 2008 Presidential Campaigns, available at http://www.fec.gov/press/press2008/2008indexp/2008iebycommittee.pdf.
4 475 U.S. 292, 306 (1986).
4 475 U.S. 292, 306 (1986).
5 Knox v. SEIU, 628 F.3d 1115, 1119-23 (9th Cir. 2010)..
6 Id. Id. at 1134 n. 4.
7 See, e.g., Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234 (1977).
8 See, e.g., Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507, 522 (1991); Communications Workers of Am. v. Beck, 487 U.S. 735, 745 (1988); Abood, 431 U.S. at 244.
9 Brief Amicus Curiae of Pacific Legal Foundation, Center for Constitutional Jurisprudence, Mountain States Legal Foundation, and Cato Institute in Support of Petitioners, 16-17.