Unions and speech: the First Amendment requires opt-in, not opt-out

January 26, 2012 | By TIMOTHY SANDEFUR

When it comes to free speech rights, the Supreme Court typically applies the rule of “strict scrutiny,” which holds that a government restriction on free speech is presumed unconstitutional, until the government proves otherwise. The reason is that, given the importance of freedom of speech, courts should “not presume acquiescence in the loss of fundamental rights,” and should “indulge every reasonable presumption against the waiver of fundamental rights.” If government is going to interfere with your religious freedom or your freedom of speech, it has to prove that it has darn good reason.

Except when it comes to fees forcibly taken by unions from the paychecks of workers who choose not to join a union.

In that circumstance, for some inexplicable reason, the Court applies the reverse rule, and assumes that dissenters—people who don’t approve of union political activism—are nevertheless willing to subsidize union political activism. This isn’t right, and as PLF argued in its brief in Knox v. SEIU—argued two weeks ago—it’s time the Supreme Court treated union dissenters the same as other people who don’t want to be forced to pay for the propagation of political views they disagree with.

For decades now, the Court has allowed states to pass laws that force people to pay money to unions even if they choose not to join. In virtually no other context (except the Individual Mandate, I suppose) does government force people to pay their earnings directly to a private business. But the theory here is that non-members enjoy certain benefits from employment contracts that unions negotiate on behalf of all workers, not just members, so the non-members may legitimately be forced to pay for those benefits, too. As economists put it, the union provides non-members with positive externalities, for which the state may force non-members to pay in the form of “agency fees.”

The problem with this argument is that it could justify just about anything. I enjoy looking at my neighbor’s roses—thus my neighbor provides me with a positive externality. Can he therefore force me to pay his water bill? The existence of positive externalities—the fact that I happen to benefit from something you do—is not good enough reason to take away my money or property, let alone freedom of conscience. One could easily argue that the existence of a church in a neighborhood benefits the surrounding community—provides spiritual guidance, or social and recreational opportunities, and so forth. Yet people would rightly react with abhorrence to a tax that forced the neighbors to pay money to the church. That would violate one of our nation’s most time-honored principles, articulated by Thomas Jefferson in the Statute for Religious Freedom, that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.” Whatever merit the “externality” argument has, it cannot trump the rights of expression and belief.

The inevitable clash of First Amendment rights and the union-fees issue has been a never-ending headache for courts. Many people prefer not to support unions, because they don’t approve of unions and the causes they support, especially since unions are typically far to the left of the average worker. So, in Abood v. Detroit Bd. of Ed., the Court struck down a Michigan law that required teachers to support unionpolitical advocacy, rightly concluding that the Constitution forbids government from making people subsidize opinions with which they disagree. That and other cases—including the important PLF case, Keller v. State Bar—have made clear that unions must separate the funds that they spend on collective bargaining, which states can force non-members to subsidize, from those they spend on political advocacy, which they cannot force non-members to subsidize. Unions must also notify workers that they have the right to object and withhold their money from union political activities. This notification is called a “Hudson notice.”

But in Abood, the Supreme Court declared that it would put the burden of proof on the dissenting workers, not on the unions or the state: “dissent is not to be presumed,” wrote the justices, “it must affirmatively be made known to the union by the dissenting employee.” Non-members who object to being forced to support union activities must take affirmative steps to opt out of supporting union political activities.

In our brief in Knox (joined by our friends at Cato, Claremont, and MSLF), we argue that this “opt-out” rule is not enough to protect constitutional rights. For one thing, unions have reacted to it by devising ever-more complicated and clever schemes for deceiving workers, or making it too hard to object. In Chicago Teachers Union v. Hudson, for instance, the Court found that the union violated the Constitution by establishing a labyrinthine “refund” procedure that essentially nullified the dissenter’s right to withhold their support. But that didn’t stop the unions, which have continued this practice, and often refuse to give workers the Hudson notice, or to provide honest accounting of how much money they spend on political activism. Worse still, the history of union intimidation against dissenters also warrants an opt-in requirement. It’s well known that workers who would prefer not to support union political activities are routinely subjected to threats and violence, and political leaders frequently look the other way. Workers who “know what’s good for them” are shy about proclaiming their opposition to union activism.

But the worst problem is that the opt-out rule conflicts with the “strict scrutiny” protections that are accorded to First Amendment rights in every other context. The Court ought to overrule that statement from Abood, and hold that the First Amendment bars unions from assuming that people want to support their political activities. Unions, like everyone else, should be forced to ask politely whether workers want to  “opt in,” and contribute to their political campaigns.

This issue came up during the oral argument in Knox, when Justices Alito and Kennedy quizzed the unions’ lawyer:

Justice Alito: Suppose that the proponents of Propositions 75 and 76 had come to the union and said, “would you please give us an interest-free loan for money because we want to use this money to – to persuade the electorate to enact these; but don’t worry because we’re going to pay it back right after the election, when we’ve achieved our electoral ends.” Would—would the union provide the money because it’s all going to come out in the wash?

Mr. Collins: [Long silence] I—I really can’t answer that question. I don’t know. I—

Justice Alito: Well, I—gee, I really doubt that you—that they would. But what’s the difference? If you look at this from the perspective of a nonmember who doesn’t want those ballot initiatives to be defeated, saying that we’re going to give you your money back—we’re going to use your money to achieve a political end that you oppose, but don’t worry because we’re going to give it back to you next year after we’ve achieved our political end—how does that solve the problem?

Mr. Collins: That’s not the situation here, Justice Alito. The nonmembers were told in June 2005 in the Hudson notice that if you don’t object, we may spend millions of dollars on political activities, including ballot initiatives. If a person didn’t want to support that, they merely need to object. What then happened, and this is what gets lost in the messaging about the dues increase, what actually happened in the real world in the period that followed is that, compared to the numbers in the 2004 Hudson notice, the union spent less on non-chargeable matters and more on chargeable matters. And the only reason there’s a case here in the Court is that the union, for whatever PR purposes, whatever it may have been, instead of saying we’re going to treat the increase as covering our vastly increased bargaining costs, thereby freeing up money for politics, we’re instead going to describe this increase as being attributable to our political costs, thereby freeing up money for bargaining. But what the union is spending its—its money on is bargaining. More money—

Justice Kennedy: It—it seems to me that this answer is—is so confusing that the Court probably should consider whether or not an opt-in requirement is—is preferable. I—we’re talking in the first exchange, you had with Justice Alito, he gave you a very simple question: 90 percent and 10 percent. Then, it’s reversed. Special assessment for 90 percent political. And the point there was that you’re taking someone’s money contrary to that person’s conscience. And that’s what the First Amendment stands against. And you simply wouldn’t answer that question….. It seems to me that you’re avoiding…a very, very critical question on the constitutional rights of these objecting members.

You can listen to the oral argument in the case here.