Written by Adam Freedman
This morning, the Supreme Court ruled that public sector unions have to get "affirmative consent" from non-members if they want to charge them for things like political spending. This groundbreaking precedent will have a huge impact on the ongoing debate on just how far public sector unions can impinge on the free speech rights of workers.
The case, Knox v. Service Employees International Union (SEIU), involves California state employees. They are free not to join SEIU, but they can't escape having SEIU represent them in collective bargaining; thus, the non-joining employees must pay a "fair share" fee to the union to defray the cost of collective bargaining (expensive work, all that bargaining). There are similar arrangements in other states, where unions are allowed to charge non-members annual fees to cover expenses that purportedly benefit the non-members.
Such arrangements, however, are at odds with First Amendment guarantees against "compelled speech." Why? Because in order to work for the State, people either have to join a union or subsidize a union that may take positions with which they disagree. The Supreme Court has previously held that non-members must have an opportunity to object to paying any "non-chargeable fees" - i.e., those not directly related to collective bargaining - but the Court has blessed the use of "opt-out" procedures, which puts the burden on the non-member to object to the fee. (Teachers v. Hudson).
In 2005, the California SEIU issued its annual "Hudson Notice" giving non-members 30 days to opt out of non-chargeable fees. After the opt-out period was over, the union abruptly announced that it would increase the assessment across the board to help fund a "Political Fight Back Fund" to buy advertisements, etc. against two ballot initiatives that were disadvantageous to the union - including one (Prop 75) that would have limited unions' ability to charge employees for political purposes. In other words, people who never wanted to join the union in the first place were being compelled to speak in opposition to a ballot initiative that would have expanded their right to object to compelled speech. A number of employees filed a class action on behalf of the 28,000 nonunion employees who were forced to contribute to the Fightback Fund.
The Ninth Circuit ruled in favor of SEIU. By a vote of 7 to 2, the Supreme Court reversed. The majority opinion, written by Justice Alito, notes that the ability of unions to put the onus on non-members to "0pt-out" 0f the n0n-chargeable portion of their dues "represents a remarkable boon for unions" and one that approaches "the limit of what the First Amendment can tolerate." The majority did not disturb existing precedent that allows public sector unions to use an opt-out mechanism for annual dues; however, the Court held that anything beyond the annual dues, i.e., "any special assessment or dues increase," must be subject to an "opt-in" procedure. Significantly, the holding applies to any mid-year assessment, whether it is to be used for political speech (as was the case here) or otherwise. In a concurring opinion, Justices Sotomayor and Ginsburg argue that the holding should apply only to assessments for political purposes. As Justice Alito points out, however, any additional assessment will free up union money to be spent for political purposes.
Justice Breyer dissented, along with Justice Kagan. Breyer evidently felt so strongly that he read his dissent aloud; an unusual move these days. Breyer notes that the rationale of the majority's holding would seem to support an 0pt-in requirement for regular annual dues and not just special assessments. Although that troubles Justice Breyer, it should give the rest of us hope that in time today's ruling will be expanded to all public sector union assessments of non-members. Such assessments are, after all, an affront to the citizen's freedom to choose when and how to speak and associate with other citizens.