Will The Courts Stop Unions From Coercing Political Donations?
Labor unions aren’t like other private organizations. They have lobbied for and gotten powers and privileges that no other groups have, or should have. (For a comprehensive study of those powers and privileges, I suggest Professor Morgan O. Reynolds’ book.) Crucially, they can compel workers to pay them money if they want to keep their jobs. Then they use much of that money for political activities that fortify the unions’ position.
That compulsion, however, is under legal attack.
At the end of its recently completed term, the Supreme Court announced a number of the cases it has decided to hear when its new term begins in October. One of those cases is Friedrichs v. California Teachers Association. The key issue is whether public workers represented by unions, including teachers and professors, should be free from having to pay dues that go towards politics unless they affirmatively choose to opt in and agree to pay
As matters now stand in California and other non-Right to Work states, unions only have to allow dissenting workers the opportunity to opt out of paying dues for things other than collective bargaining and related matters. Naturally, the unions have contrived to make it as hard as possible for anyone to do that.
Over many years, the Supreme Court has recognized that compulsory unionism raises First Amendment issues when the dues money extracted from workers is used to fund political speech and activism that the individuals do not favor. In the 1977 Abood case, the Court approved of the “opt-out” approach, but that precedent seems to be on thin ice after two recent decisions, Knox v. SEIU and Harris v. Quinn.
The Court has ruled that just as people have a First Amendment right to speak freely, they also have a First Amendment right not to be compelled to subsidize speech by others that they do no agree with. Therefore, when public unions make it difficult for workers to avoid paying for political speech, there’s a constitutional problem.
As attorney Deborah LaFetra of Pacific Legal Foundation explains here, “If a teacher doesn’t want to support the union’s politicking but fails to file her objection within the six-week window, she must pay the entire amount.” The plaintiffs in the case argue that the constitutional rights of teachers and other public workers would be protected by overruling Abood and adopting a standard that workers who want to help support the union’s political activities need to voluntarily opt in.
They depend on a big flow of money from the workers they claim to represent and fear that if those workers were allowed to choose whether to pay for more than just the cost of collective bargaining, many would decline. (I say “claim to represent” because most unions were certified as bargaining representatives for units of workers long ago and few if any of the current members have ever even been allowed to vote on that relationship.) The onerous opt-out procedures are intended, as one union spokesperson actually admitted, to take advantage of people’s inertia.
What would happen if unions had to obtain money the way all other private organizations do – by asking for it? They know they would collect less under a system that respected people’s freedom and try to make that eventuality sound cataclysmic.
One union leader, Frederick Kowal who is president of United University Professions (the faculty union at SUNY) states that the suit is “an insidious way to bankrupt unions.” (He is quoted, along with other union defenders, in this Inside Higher Ed story.)
That assertion is, of course, nonsense. A ruling that public unions must raise funds for their political activities through truly voluntary “opt-in” procedures would not bankrupt any union. What frightens union officials like Kowal is the prospect of having to cut back their expenses to the level that the workers are willing to pay for. That would mean less money for politicking; probably also less pay and perks for themselves.
Whenever anyone suggests reducing the power that unions have, their defenders send up plaintive cries of “union busting!” But as Larry Sand, president of the California Teachers Empowerment Network correctly observes here, “The Friedrichs case is not an attempt to ‘bust unions.’ This silly mantra is a diversionary tactic; the case in no way suggests a desire to do away with unions.”
All other private sector organizations, for-profit and non-profit, have to live with the fact that they aren’t entitled to anyone’s money; if less money than they wanted comes in, they have to adjust. Unions should have to operate on the same basis.
Public sector unionization – in education and all other aspects – is one of the worst mistakes America has ever made. Even FDR thought it was a bad idea. Public unionization has led to the financial pillaging of numerous states, most notably California. (An excellent book on that is Steven Greenhut’s Plunder.)
Friedrichs can at most chip away at some of the power of those unions, but that’s a step in the right direction. The real solution, however, cannot be judicial. It must be political – the realization that governments should not negotiate with unions. Correcting that mistake would not only eliminate a source of legal conflict, but more importantly eliminate a huge drain on our limited tax dollars.
Originally published on Forbes.com.