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Activist Court Steers Right (Again)

Thursday, July 5, 2012

In the midst of the Obamacare craze, a recent U.S. Supreme Court decision from June 21st has largely gone unnoticed, despite its far-reaching implications for public sector unions. The case, Knox v. Service Employees International Union, Local 1000, has dealt a severe blow to the ability of public sector unions to raise funds for political activity and to participate effectively in the political process. While the case pertained to a particular accounting procedure that SEIU used in California in 2005, the Court reached far beyond what was briefed in the case in its sweeping opinion that departed dramatically from longstanding precedent. One of the most troubling outcomes of the ruling is a newly established standard that bears down heavily on unions, while leaving corporations untouched. This double standard, and its blatant privileging of corporations, significantly undermines the norm of political equality that democracy demands.

In Knox v. SEIU, the Court addressed two main questions: first, do the mandatory dues payments of public sector unions, which aim to overcome free riding, violate the First Amendment? And second, is it constitutionally sufficient to allow non-union members covered by union contracts to opt out of paying dues in the event they do not agree with the union’s political spending? Addressing huge questions that extend far beyond the details of the case, the Court ruled that “free-rider arguments... are generally insufficient to overcome First Amendment objections.” Further, departing from a longstanding precedent that upheld the constitutionality of opt-outs, the Court ruled that unions must secure employees’ affirmative opt-in before spending dues on political speech. 

While it is certainly reasonable that people not be forced to sponsor politics they do not agree with, there are significant problems with the Court’s newly established opt-in standard. To begin with, requiring affirmative opt-ins puts a huge administrative burden on unions, as it demands additional communication, paperwork, and process expenses for the tens of thousands of represented workers. This will significantly hinder the ability of unions to raise political funds at the quantity and speed that is necessary to participate meaningfully in contemporary politics.

More significantly, the Court’s concern over forcing people to sponsor union political speech seems incongruous with the Court’s lack of concern over forcing people to sponsor corporate political speech. Corporate law permits corporations to spend in politics without seeking the approval or consent of shareholders. Even in the event of individual shareholder objections, corporations are still legally empowered to fund independent political expenditures from their general treasuries.

When shareholders are not even given the right to opt out of contributing their investments towards corporate political speech, why are more and more stringent requirements placed on unions and their exercise of political speech? This is a particularly relevant question when you consider that compared to shareholders in a corporation, union members and represented non-members receive far more communication about political activity and have far more say about how funds for politics are spent.

There is no valid reason for treating unions and corporations differently in this context. Although the two are obviously different institutions in purpose, both play an important role in society as powerful vehicles of political voice and organization. In order to further the democratic ideal of political equality and secure the ability of all citizens to participate in and influence political outcomes, unions, corporations, and other like kinds of institutions must act with responsibility and accountability when engaging in political speech. When devising laws and regulations that aim to keep institutions accountable, such laws must be applied evenhandedly to all, including corporations. Put simply, we cannot forget that democracy is about the citizens that an institution represents, not the institution itself.