Why Fisk & Chemerinsky are wrong about Knox

December 07, 2012 | By TIMOTHY SANDEFUR

In an article forthcoming in the Columbia Law Review, Professors Catherine Fisk and Erwin Chemerinsky complain that the Supreme Court’s decision in Knox v. SEIU unfairly discriminates against the expressive rights of labor unions, and argue in favor allowing unions “to spend funds on political activities without needing to let dissenting members opt out.” This is a fine example of how framing the question in a deceptive way will lead to unjust results. The alleged inequality that Fisk and Chemerinsky identify doesn’t actually exist, and their solution would violate the fundamental right of free speech in the name of a false equivalence.

Here’s the key false premise underlying their argument: “There is one type of organization…where the Court has held that the leadership’s speech on behalf of the organization violates the First Amendment rights of dissenters: labor organizations…. [W]hile under Citizens United, corporations and unions are equally free ‘to spend general treasury money on electoral politics,’ the Court has imposed ‘a restriction on unions’ ability to fund these general treasuries that corporations do not face.’”

But Knox is not about unions spending money to promote their views—which they are perfectly free to do, just as corporations are. Rather, that case is about the unions taking money from people against their will, which money is then spent on the promotion of views with which those people disagree. Corporations differ from unions in this fundamental respect: corporations don’t have the state’s permission to deduct money from your paycheck against your will, and unions do. This activity would be regarded as theft in any other context, and if a corporation did it, we’d be the first to complain. (See our eminent domain cases, for example.) But the Supreme Court has allowed states to give unions this privilege due to the “free rider” theory adopted in cases like Abood. That theory says that because unions confer benefits even on non-members, those non-members should be forced to bear the costs of those benefits whether they want to or not. That’s a classic positive externalities sort of argument, and one can agree or disagree with it, but either way, it does not follow that unions should be free to use that money for political campaigns with which the individual disagrees. And the Supreme Court has therefore said that states can allow unions to take people’s money away from them, but that power must stop at this First Amendment boundary. It’s not about whether the union’s speech violates the rights of dissenters—it’s about whether the special privilege that unions get, which no corporation or individual gets, to take your money from you against your will, also extends to allowing them to spend that money on political campaigns you disagree with.

Now consider: in every other realm of First Amendment law, the courts presume in favor of individual rights and against government interference. Restrictions on free speech are presumed unconstitutional until the government provides sufficient justification for them. Yet when it comes to this special privilege that unions get, the courts reversed that presumption: they presumed that people were willing to give up their First Amendment rights unless they “opted out.” As we explained in our amicus brief in Knox, that rule was unjust, inconsistent with First Amendment law generally, and lacked any good justification. The Supreme Court rightly said that if unions want to take people’s money for political expression purposes, they should ask first.

Just like corporations do.

Prof. Chemerinsky has been trying this analogy between unions and corporations ever since Knox was decided, and it still just doesn’t fly. If you own stock in a corporation and that corporation runs a political campaign you don’t like, you can sell your stock. You can choose not to buy stock in corporations that say things you don’t like. I myself choose not to do business with certain corporations because of their political activities. But you don’t have that same freedom of choice when it comes to labor unions. Fisk and Chemerinsky’s effort to make a false equivalence between corporations and unions in this contexts depends on blurring the basic distinction between unobstructed speech on one hand, and on the other the power to seize people’s money to pay for that speech against their will.

The authors try to get around this point with an even more specious argument. Agency fees aren’t taken from workers through the action of government, they argue: rather, “[a]gency fees are collected only if a majority of employees vote to unionize, and only then if the union and the employer agree to a contract requiring the payment of fees. Absent this private action, there is no union and no fees are collected for it.” But the employees’ power to unionize and wield this power exists solely as a product of state and federal law; 50% of a street gang voting to take your money away would not allow the gang to do so, because the law does not give them the same privilege it gives to unions. True, federal and state labor laws are triggered by “private action,” but only in the same sense that all laws are triggered by some kind of “private action”; this does not render the unions’ special privilege anything other than a special privilege. Yet Fisk and Chemerinsky pursue this false equivalence by arguing that since a corporation exists because of state law (not true, by the way), the decision of a corporate board to spend shareholder money on a political campaign is equivalent to the unions’ actions: “The choice of a corporation to expend corporate funds in an election is a private decision made by the officers and ultimately the directors of the corporation. But it is state law which allows this to occur without shareholder consent. State corporate law, and specifically the business judgment rule, gives to corporate officers and directors broad latitude to spend corporate funds in the best interests of the corporation.”

It is not state law that allows corporations to spend money given to them by shareholders; that right depends on the contractual agreement between the shareholders and the corporation. State law can enforce that contract, but that does not make it involuntary, and it is not equivalent to the state and federal laws that allow a majority of workers to force another worker against his will to give up his earnings to the union. “Allowing this to occur” just means that the state leaves people free to make their own agreements; whereas in the realm of collective bargaining, the state affirmatively compels compliance. Because they obfuscate this categorical difference, Fisk and Chemersinky end up arguing that a corporation’s decision to use its own property—property voluntarily given to it by shareholders—is just as much a consequence of government policy as a union’s power to seize wealth from workers involuntarily. Since state laws protect the property rights of businesses, and allow unions to commit what would in other contexts be considered theft, then both the protection of property and legalized theft are morally and constitutionally interchangeable. (The “business judgment rule” is just the rule that courts won’t second-guess the decisions of corporate officers that are within lawful bounds.)

This is the kind of logic, as Abraham Lincoln once said, that would hold a chestnut horse to be the same thing as a horse chestnut. Thank goodness the Supreme Court realized that there are important constitutional differences between voluntarily buying corporate stock and being forced to contribute to a union you disagree with. And thank goodness the authors of the First Amendment understood the difference between being free and being unfree.

Incidentally, the attempted equivalence between freedom from restraint and government-imposed commands is central to modern liberalism, and I addressed it at length in this article.