Union-dues ruling is real free-speech landmark

Friday, June 22, 2012

WASHINGTON — Fox got the headlines, but Knox may have more long-term significance for the First Amendment.

We’re talking here about the Supreme Court’s two First Amendment rulings issued yesterday: FCC v. Fox Television Stations,  a test of the Federal Communications Commission’s rules against broadcast indecency; and Knox v. Service Employees International Union, the latest in a series of cases involving public-sector labor unions and their treatment of non-members.

The Fox decision was the marquee case of the day, with its discussion of fleeting expletives and momentary nudity on television broadcasts. But the Court’s ruling actually sidestepped the First Amendment issue of whether the FCC regulations violated free speech. Instead, the Court said that in the cases before it, the FCC had not given the networks adequate notice to let them know they were violating the rules — a violation of the Fifth Amendment, not the First.

But the Knox ruling marked a significant shift by the Court in its approach to preventing unions from violating the First Amendment rights of non-members. Some analysts immediately ranked the decision along with the recent campaign by Wisconsin Gov. Scott Walker as a death knell for public-employee unions.

“The conservative majority on the Supreme Court delivered an unsubtle warning to public employee unions: You are living on borrowed time,wrote Garrett Epps in The American Prospect.

For decades, the Court has maintained a fragile balance between the right of employees to bargain collectively, and the First Amendment right of individuals not to be compelled to espouse political views they disapprove. It has done so by allowing unions to collect so-called “agency fees” from non-members to cover costs of collective bargaining, which benefits members and non-members alike. It also prevents non-members from becoming “free riders,” enjoying the fruits of union collective bargaining without paying for it. But when it comes to the money that unions use to promote political views or candidates, the Court ruled in 1986 that non-members must be notified and allowed to “opt out” of paying fees to support that advocacy.

Yesterday’s ruling, authored by Justice Samuel Alito Jr., represents a sharp departure from that approach, away from “opting out” and toward “opting in” — in other words, requiring unions to ask non-members to affirmatively pay for political activities, rather than taking the money unless non-members say no. That may seem like a subtle difference, but it could result in significant financial losses for unions.

A brief filed in the case by the conservative Pacific Legal Foundation, the Center for Constitutional Jurisprudence, the Mountain States Legal Foundation and the libertarian Cato Institute pushed the “opt in” approach that Alito embraced.

The “opt out” procedure represents a “remarkable boon for unions,” Alito said, because it puts the burden on the dissenting non-member to withhold payment, rather than making the union do the work of asking non-members to “opt in” and support its political activities.

By allowing “opt out” procedures, Alito went on to say, the Court’s past rulings have “substantially impinged upon the First Amendment rights of non-members.”

The case before the Court involved a special assessment levied by the SEIU’s California local in 2005 to create a “political fight-back fund” to combat initiatives by Gov. Arnold Schwarzenegger that it believed would hurt unions. The union informed members and non-members about the special fee, but did not offer a chance to opt out.  The union argued that objecting non-members could opt out the following year, but Alito said that would put non-members in the position of lending their money to the union.

The refund would be “cold comfort,” Alito said. “The First Amendment does not permit a union to extract a loan from unwilling non-members, even if the money is later paid back in full.”

In the case before the Court, Alito said, a public sector union “may not exact any funds from non-members without their affirmative consent.” In other words, unions must ask non-members to “opt in” for special assessments.

But several analysts — including dissenting Justice Stephen Breyer — predict the majority’s language favoring “opt in” procedures will be applied in future cases to all agency fee arrangements. The majority’s reasoning “seems in logic to apply, not just to special assessments, but to ordinary fee charges as well,” Breyer wrote in a dissent joined by Justice Elena Kagan. “And that fact virtually guarantees that the opinion will play a central role in an ongoing, intense political debate.”

Alito’s majority opinion was joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas. Justices Sonia Sotomayor and Ruth Bader Ginsburg agreed with the result, but said the majority “breaks our own rules” by deciding issues that had not been fully briefed — including the “opt in” issue.

Deborah La Fetra of the Pacific Legal Foundation applauded the Court’s shift as “a major victory for workers who do not want to subsidize union bosses’ political agendas.” She added, “Unions should ask permission first — not compel workers to pay to promote the unions’ political views.”

Jim Zamora, a spokesman for SEIU’s California local, said the Supreme Court’s decision “continues the attack on the right of public sector workers to act collectively to impact their workplace on important issues.” He also noted that the high court “has affirmed the right of corporations to put millions of dollars into the political system. Yet shareholders currently have no right to object to the spending of that money against their political or ideological beliefs.”

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