First Amendment case threatens public employee unions

May 3, 2013
Peter Scheer

Peter Scheer


Public employee unions face a new, and mortal, threat. It’s not the unfunded liability of union pension plans or municipal governments’ resort to bankruptcy to void union contracts. It’s not state initiatives to restrict collective bargaining rights or other outpourings of voter resentment. No, the new existential threat facing government unions comes from . . . the First Amendment.

In a scarcely-noticed lawsuit filed Monday in federal district court in Los Angeles, a conservative nonprofit, the Center for Individual Rights, claims that California’s system for collecting union dues from government employees abridges free speech safeguards by compelling employees to subsidize union political advocacy and activities with which they disagree.

On first look, the suit looks like a loser because the challenged union practices were upheld in a 20-year-old US Supreme Court decision, Abood v. Detroit Board of Education. Nonetheless, on second look, the suit has a very respectable chance of succeeding because of a 2012 Supreme Court decision, Knox v. SEIU, in which five justices said, in effect, that the Abood decision was a mistake. Also, the plaintiffs are represented by Jones Day, one of the biggest and best law firms in the country, which wouldn’t have taken the case unless prepared to litigate all the way to the nation’s highest court.

And if they prevail? Public employee unions, not just in California but across the country, would lose the bulk of their dues funding–and with it, the ability to wield decisive political influence in state and local governments everywhere. That is a big deal.

Non-management government employees in California, as in many states, are required to belong to a union, and pay union dues, whether they want to or not. However, employees can’t be forced to pay for union political activities–as opposed to union representation on pay, benefits, job security and like issues–because of first amendment protections against “forced association” with political viewpoints. The question is: how, practically-speaking, to enforce this right?

The Supreme Court in Abood approved a system that requires employees, if they don’t wish to pay for their union’s political activities, to “opt out”–meaning, they must pay all dues first, then apply to receive a prorated refund later. The theory of the lawsuit filed Monday, Friedrichs v. California Teachers Association, is that an opt out procedure is constitutionally defective because it compels employees to make a loan to the union for its political activities, and because even the unions’ supposedly nonpolitical activities–such as opposition to charter schools or support for higher taxes to pay for pension benefits–are fraught with political and ideological choices that are objectionable to some employees.

The lawsuit contends that the first amendment requires an “opt in” procedure. While it may seem trivial, the difference between opt out (where the default is that the union has all your money and you have to ask for a portion to be refunded) and opt in (where the default is that the union has to persuade you to give money to support its political activities) is the difference between public employee unions that are rich and powerful and unions that are poor and politically neutered.

Last year in the Knox case, the Supreme Court decided, 5-4, that the first amendment requires California government unions to use an opt-in dues collection procedure for special dues assessments needed to finance political campaigns. Justice Allito, writing for five justices, went out of his way to raise doubts about the Abood decision and, in effect, to invite a test case to overturn it. The Friedrichs v. California Teachers Association lawsuit is an RSVP to that invitation.

How will the unions respond? In 2012 California unions spent some $75 million to defeat a ballot initiative, Prop 32, that would have shifted California’s default from opt out to opt in. Now, consider that a successful Supreme Court challenge would yield the same result, not only in California but across the nation, and that it would be immune from legislative repeal. Organized labor, once it figures out what is happening, will treat this litigation like the existential threat that it is.

Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition.

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I am not against unions per say although I would not belong to one as a free thinker… If, however, an employee is hired and wants to be represented by the union, OK! If an employee does not want to belong to the union, OK, and yes, they should pay a representative’s fee if that is the law. However, I am 100% against the employer (the State or anyone else) collecting fees to counter elections, policies, plans and operations of the employer. Members of the union can mail in, wire transfer or contribute anyway they want for their causes on their dollar and time. The State should not invoice, collect, account and distribute monies collected for causes and operations of the union. That is using government funds for their personal causes. They need to run their own business on their own dime to be used as they want legally.

The California Employee Unions are 75% responsible for the financial problems in our state. Lobbying is the vehicle. Somehow this needs to be realed in.

“realed”? Is that similar to “reeled”?

Must be a product of public eduction!

Years ago I was forced to join the “union” to accept a position and forced to pay dues to a union that clearly supported the democrat party which I have never been supportive of.

But my revenge has been that I left the union and the job in 2005, but they continuously send me union garbage at their expense which I do recycle as soon as it reaches my hands. :)

Agreed. I belonged to a union twenty plus years ago for a short time. It was during that time a election was being held. I was SHOCKED at one of our meetings how they basically told us who we should vote for and how to vote. I wanted to tell them where they could go. Guess you couldn’t guess the party? (Sarcasm)

Those union types that will vote this red don’t want to admit the TRUTH for what it is.

It is WAY past time to neuter the unions and I would be more than happy to be the one with the knife!!

The article has an interesting point of view, but not sure what to make of it because it’s also seriously factually flawed.

For example: “Non-management government employees in California, as in many states, are required to belong to a union.” No they aren’t. California public employees have an open shop. Even if they are represented by a union for bargaining and work rights purposes, they don’t have to belong to the union. Those who don’t belong pay a representation fee, which is equal to the costs of contract bargaining and other things the union does in the workplace; it does not include political expenditures. For members, actual contributions to a union political action committee are tacked onto union dues — in other words, they’re a separate item — and any member who finds such contributions objectionable (as I do) can opt out of the political contribution just by telling the union. So, a key premise of this story just doesn’t hold water.

Another significant factual flaw is the description of the “opt-out” procedure, in which the author alleges that the money is collected and then must be refunded. This plain isn’t true; one can opt out of having it collected, as I’ve described above.

It’s really a shame to have a plausible opinion piece so based upon false premises.

i guess that’s why we rely on public comment

Very interesting! I would love to hear Peter’s comments on your assertions presented herein.

hijinks comments are not assertions, he’s stating facts.

Assertions or facts, I am disheartened to see that the author of the piece did not address this.

Not to speak is to speak…

“Facts” as it relates to The State of California Employees. Not “Facts” as it relates to public employees within the State of California (City, County government employees, School teachers, etc). Two different groups of employees completely!

It is nice of you to speak for ALL California government agencies. I can not imagine the research that went into forming your opinion. or were you speaking of State Employees only?

“Public employee unions face a new, and mortal, threat. It’s not the unfunded liability of union pension plans ” I think you need to do some research, the unions were never worried about this, the taxpayers are the ones on the hook for this scam.

it’s time for the pendulum to swing a bit