Pivot: Supreme Court Ruling Will Be A Big Headache For Public Sector Unions
posted at 6:54 pm on June 21, 2012 by Patrick Ishmael
While the U.S. Supreme Court did not hand down the long-anticipated decision on 2010’s health care overhaul today, it did publish a ruling that could be a huge problem for public employee unions (PEUs) both now and down the road.
More to the point, this is a big victory for freedom of speech, and probably just the first of many in this policy area.
The case, Knox v. SEIU, arose from a California law that allows PEUs to charge nonmembers for nonpolitical services related to the collective bargaining activities PEUs undertake for both union members and nonmembers. At issue: Did the SEIU violate the First Amendment rights of non-members by the manner in which it levied special charges, which in some cases were used to promote union political activities?
The Court’s answer: Yes. (PDF at the link.) Not only did the Court reject the idea that “lobbying the electorate” was a chargeable activity – which the SEIU argued – but the Court also did not accept the argument that PEUs could basically guess at how much they would spend on political activities, charge nonmembers accordingly and without violating nonmembers’ First Amendment rights effectively appropriate nonmember funds for political activities due to the union’s own imprecision, even if only temporarily.
Justice Alito, writing for the majority:
Unless it is possible to determine in advance with some degree of accuracy the percentage of union funds that will be used during an upcoming year for chargeable purposes—and the SEIU argues that this is not possible—there is at least a risk that, at the end of the year, unconsenting nonmembers will have paid either too much or too little. Which side should bear this risk?
The answer is obvious: the side whose constitutional rights are not at stake.
Alito, in his conclusion (emphasis mine):
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.
That’s a big deal; if nonmembers can do nothing and avoid sending dollars to PEUs’ political coffers, those nonmember funds might very well dry up. Unions would have to get their political donations the old-fashioned way from nonmembers: by asking them to cut the union a check. And while this decision is being applied very narrowly today, the principle encapsulated by that bolded portion is key and will almost certainly be evoked in future cases involving similar violations of nonmember First Amendment rights.
Bookmark this case. It’s a big one.