Posted by Brendan Fischer on July 03, 2012

A little-noticed U.S. Supreme Court decision from June 21 has dealt a blow to public sector unions and demonstrated the conservative majority's preferential treatment for corporate "rights." The decision in Knox v. SEIU could have an impact on future election cycles.

The Court's broadly-drafted opinion establishes new burdens for unions to raise resources for certain political activities. The ruling, which has been described as an "activist decision" because it dealt with issues not before the court, is written is such a way that it could also threaten unions' ability to raise any political funds, or even raise money for their very existence. Because unions are one of the few counter-weights to corporate spending in elections, diminishing union political power will increase relative corporate influence over politics.

Perhaps most importantly, when compared with other recent Supreme Court decisions, it becomes clear that the conservative majority is laying out a double-standard for how corporations and unions can be involved in the political process.

Court Makes New Law, Requiring "Opt-In" for Certain Union Fees

Unions have an obligation to represent all employees in a bargaining unit, regardless of whether an individual employee chooses to join the union. To avoid non-union employees reaping the benefits of this representation without paying the costs -- thereby "free-riding" on the dues paid by the other employees -- non-union members can be required to pay their fair share of the collective bargaining expenses.

However, employees are not required to pay for the union's political activities. Many years ago the U.S. Supreme Court crafted a rule giving employees a right to opt-out of funding the union's political expenses, such as campaign activities. According to the rule, unions are supposed to annually notify employees about the year's expected expenses and give dissenting employees an opportunity to "opt-out" and not pay for the political and other costs not related to bargaining.

In this case, the SEIU issued an "emergency" dues increase, not anticipated in the annual notice, to raise funds for fighting anti-worker initiatives on the ballot in California. It did not provide dissenting nonunion employees an opportunity to opt-out of paying for the political expenses, and a handful of these employees sued. A lower court required the SEIU to send a new notice and the union refunded the expenses to non-members who requested it.

Seven justices agreed that prior to the SEIU deducting dues from nonmembers, it should have sent an additional notice about the political expenses and provided an opportunity for nonmembers to not fund the activities. But the five conservative justices went further, and like they did in Citizens United, addressed an issue that was not before the court to establish new law. Justice Alito, writing for the majority, said that unions can only assess a dues increase like this one if employees affirmatively choose to opt-in, departing from the long-standing principle that opting-out of paying for political expenses was constitutionally sufficient. This creates new bureaucratic burdens for unions to raise funds for political activity.

What's more, the majority opinion's language suggested that the "opt-in" requirement might apply to all mandatory dues arrangements, which could potentially end the requirement that non-union employees be required to pay the costs of union representation. This would essentially create nationwide "Right to Work" standards. And that would be a massive blow to public sector unions.

Additionally, even though Citizens United opened the door for both corporations and unions to spend more freely on elections, the Knox decision will likely mean that unions will have fewer resources with which to do so. As John Nichols notes in The Nation this impact could compel labor to get serious about a constitutional amendment to overturn Citizens United.

But there's more.

Preferential Option for Corporations

Harvard Law Professor Benjamin Sachs notes that "the Court's concern for avoiding compelled funding of union political speech stands in stark contrast to the lack of concern for compelled funding of corporate political speech."

In Citizens United, the court ruled that corporations (and unions) have a First Amendment right to fund independent political expenditures from their general treasuries. If individual shareholders disagree with the way a corporation is funding political attack ads or bankrolling front groups, they have no right to opt-out and ask that their investments not be used for those purposes. Unions must get this permission. And corporations certainly have no obligation to ask shareholders (who are officially the corporation's owners) to opt-in, and give affirmative permission for their ownership shares in the corporation to be used for political activities. The Court in Knox signaled that unions might have to get this permission.

"To put it simply," Sachs writes, "the law gives employees the right to opt out of funding union political speech, but shareholders get no right to opt out of funding corporate political speech. This kind of differential treatment of political speakers is inconsistent with the American ideal of treating political speakers equally."

"Taking seriously the arguments in Knox and the Court's other cases about compelled political speech and association means extending these principles beyond the union context and to the corporate one," he said.

There have been some legislative efforts to make this a reality. Sen. Bob Menendez (D-NJ) and Rep. Mike Capuano (D-MA) have introduced the Shareholder Protection Act, which would require shareholder approval for a company's expenditures in the coming year, that the company's board of directors vote on political expenditures over $50,000, and to make the vote public within 48 hours.

Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California-Irvine School of Law, supports similar legislation on the state level. "A state can adopt a law which says that neither a corporation nor a union can spend money on political activities without the consent of the individuals. If the Supreme Court is going to require opt-in for unions, it seems only fair and appropriate that the same be required for corporate political spending," he writes.

But in the wake of successful attacks on public sector unions in Wisconsin, Indiana, Florida and elsewhere, and with a network of right-wing institutions like the American Legislative Exchange Council (ALEC) pushing an anti-union message, passing legislation that is "fair and appropriate" may still be a long way off.

Comments

we need all extra money out of politics. PERIOD, each person that legally has a right to vote or donate money fully has that right protected... WE the People do NOT NEED Corporations or Unions in the bribing business... i repeat.. every citizen that does already have a right to do this, can and will. We the People do not need outside money just to currupt either party.

The Knox v. SEIU Decision was not based on "outside money" going into political campaigns. Rather, it was based on non-members in a bargaining unit, and the issue was a special dues increase that was levied to meet expenses that were not disclosed when the amount of the regular assessmant was set.

On the whole, this decision by the high court further impacts workers' activity to speak as a group.

Ralph Lyke
Local 624, UAW
Upstate New York

I agree with you that all money needs to be taken out of politics. The people lose so much when money influences politics. Good people may not be able to raise the money to be competitive; it militates against the concept of one vote, one man. Thus, it makes democracy a farce because poor people feel that their voices are not being heard. A democracy ought to be representative of all voices.

I too hate all this money buying our elections thats why I wont donate to Obama. I told him flat out that I wont play this game he and Mitt are playing trying to see who can rake in the most money. I told him I'll vote for him again only because hes the lessor of two evils and I know how despertley need a Democrat to appoint the next Supreme Court judge and maybe even 2 if were lucky. all my donations go the the smaller elections so if Obama should lose atleast we might be able to keep control of the Senate and hopefully get rid of the teabaggers who got in in the house in 2010,atleast without a majority in either of them we cant get spanked too bad. It is obscene the money being raised when our infra structure is crumbling and people that once were in the Middle Class are now depending on food stamps. Can you imagine how we look to the rest of the world, I'm ashamed of what we've become~

Quoting Russ Limbo in The e-Buffet Online Magazine:
"I have to ask, “Who gave the Supreme Court the authority to pen legislation for The People of The United States. Isn’t that why we elect Senators and Congressmen? We have a tried and proven method of creating and enacting new laws in the United States of America: Congress creates and votes on them and the President signs them into law. That is the process. The function of our High Court has always been to strike unjust laws not create them. Who signed this “Law”? Is it subject to Presidential Veto? If we allow this then we are allowing The Supreme Court of the United States to assume dictatorial Powers thereby circumventing the will of the people."

This ruling makes me want to vomit. What's happened to our "impartial" Supreme Court? How can they get away with putting more restrictions on the Unions, while upholding the ridiculous free-reign that Citizens United made legal. It gives the corporate Super-Pacs the ability to ultimately rule our country. If you don't think money in politics is a big problem, look at what happened here in Wisconsin with the failed recall of the extremely corrupt Scott Walker. When the recall effort began, public opinion was so in favor of the recall that just about any democrat we'd have put up against Walker would, (according to the opinion polls at the time), would have won an election against Walker. But after an infiltration of $67 million dollars in propaganda, Walker walks away with a bigger margin that he was elected with. It was a sickening display of big money influence, and it continues today. Not only can these corporation give while remaining anonymous, but these Super PACS are, for the most part, set-up as charitable organizations, so their contributions are also tax deductible. Ever notice after you here one of the commercials telling you to call some democrat and tell them that you don't agree with whatever it is they voted on, that the PAID FOR has a .org website. That suffix is supposed to be reserved for charitable organizations. Check it out, at ScottWalker.org - SICKENING!

Many times have we seen 5 to 4 decisions on SC cases, mostly reflecting politics rather than the Constitution. Big money continues to pour in to the Mit Romney coffers and the Republican party, much more than is going to the Democrats. We will see far more lies and half truths from the Reps than from the Dems. The only way I know to put a stop to this propaganda is to immediately switch TV channels, to public TV for example, whenever a political or attack ad comes on. The people who monitor what we watch will get the message that no one is watching the ads. So why pay out all of that money. Muting is not the answer, switching is. Debates should be the defining factor in how people vote. We need a huge turn out at the polls to vote AGAINST Republicans. Think about what will happen if Republicans gain complete control as they did in 2010 in WI. The impact on the Supreme Court will be staggering, more weighted to bashing the average American while favoring the billionaires, maybe lasting for 30 more years. I can see poverty increasing, the 1% gaining more and the 99% losing more. Maybe, our government will cease to exist. Think about the revolutions that have gone on elsewhere because of lack of respect to the feelings of the vast majority.

Strange. The Supreme Court suggests that unions should not be able to take money from people who have manifest NO consent to ANY element of the union's agenda, let alone politics, and it "threaten[s] unions' ability to raise any political funds, or even raise money for their very existence"?

Gee, sounds terrible. After all, we all know that unions are incapable of attracting voluntary MEMBERS without coercion.

And Knox says that unions should obtain CONSENT before extracting money for politics from NONmembers, so "the majority opinion's language ... might apply to all mandatory dues arrangements, which could potentially end the requirement that non-union employees be required to pay the costs of union representation"? As counsel for the Knox nonmembers, that might be nice, but it certainly doesn't logically follow from the premise governing the majority opinion.

Thus, while "Citizens United opened the door for both corporations and unions to spend more freely on elections, the Knox decision will likely mean that unions will have fewer resources with which to do so" only because unions will no longer be able to "free ride" on the backs of nonmembers who never authorized unions to speak for them regarding ANY issues, let alone political issues.

And as for corporations, yours (and Chemerinsky's) is a false equivalency. I am aware of no corporation permitted to dip its hand into ANYONE'S paycheck and FORCE them to buy corporate stock. Which is what would be required to maintain a legitimate First Amendment claim against them for political spending. Remember: what is at issue in Knox is FORCED dues. Forced corporate stock purchases? They don't exist, as far as I know.

Oh, and you neglected to mention that monopoly representation is a PRIVILEGE lobbied for an jealously guarded by labor unions. "Unions have an obligation to represent all employees in a bargaining unit, regardless of whether an individual employee chooses to join the union" because they WANT that power. "Free riders" are a carefully-contrived myth. If unions don't want what actually are FORCED riders, they can easily avoid them by surrending their monopoly bargaining power.

Bill Moyers presents "United States of ALEC," a report on the most influential corporate-funded political force most of America has never heard of -- ALEC, the American Legislative Exchange Council.