AFL-CIO President Richard Trumka is pulling no punches when it comes to the US Supreme Court's recent pattern of decisions regarding the way in which corporations can engage in politics versus the way in which unions can engage.
"[This] Supreme Court says you cannot do anything to hamper the First Amendment rights of corporations," argues Trumka. "But when it comes to workers, they haven't seen a detriment to the First Amendment that they haven't liked yet."
Trumka has been increasingly critical of the Supreme Court's 2010 Citizens United v. FEC ruling in recent months, arguing: "Citizen United has ushered in a new era of elections and it's not a pretty picture."
But now he has even more reason to be concerned. And, hopefully, to swing the labor movement toward even more aggressive support of fundamental reforms in how election campaigns are financed -- up to and including a constitutional amendment to overturn Citizens United.
Traditionally, major corporations and major unions have both tended to seek maximum flexibility when it comes to political spending. And much of the media has covered corporations and unions as equal players. That was never really the case. Corporations, freed by the Court to spend freely from their treasuries on political campaigns, will invariably have more money at their disposal than unions. And the Court's determination to extend Citizens United, as evidenced Monday by its rejection of Montana's century-old anti-corruption law, which banned restricted corporate influence in state and local elections, sets up even more brutal battles in regions where unions will have a very tough time even competing with corporate cash.
But that's not the worst if it. The Court is not satisfied just to empower corporations. Now, the Court is making it a good deal harder for unions to work on political issues with the people they represent -- especially non-members in organized workplaces -- and to support candidates and mount campaigns.
With last week's ruling in the case of Knox v. Service Employees International Union (SEIU) Local 1000, the High Court's hyper-partisan, hyper-activist majority -- Chief Justice John Roberts and Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel A. Alito -- did several things that constrain the flexibility of unions in election fights. Indeed, the ruling was so sweeping in its advocacy, so adventurous in its politics, that Justice Sonia Sotomayor (joined by Justice Ruth Bader Ginsberg) concurred with the narrow judgement but objected: "I cannot agree with the majority's decision to address unnecessarily significant constitutional issues well outside the scope of the questions presented and briefing. By doing so, the majority breaks our own rules and, more importantly, disregards principles of judicial restraint that define the Court's proper role in our system of separated powers."
Justice Sotomayor frets about the Court creating a "new world of fee collection" that is ill-defined and that, necessarily, will have an impact on all workers represented by a union, members and non-members. The concern she expresses is appropriate, as are those raised in an explicit dissent written by Justice Stephen Breyer (joined by Justice Elena Kagan). It is important to remember that, in so-called "agency shops," workers often change their membership status. An internal organizing drive, a highly-charged moment (contract negotiations, a potential work action) or political shifts can cause people to get more or less active in a union. Thus, is it difficult, perhaps impossible, to speak of any of the issues relating to union political engagement in narrow and restrictive ways.
Yet, the Court's majority does just that. And, as such, it creates significant new challenges for unions:
1. The High Court majority says that workers who are represented by a public-sector union but who have not formally joined the union must affirmatively "opt-in" for dues assessments that are targeted for political purposes. Specifically, Alito wrote: "To respect the limits of the First Amendment, (unions should send) out a new notice allowing nonmembers to opt in to the special fee rather than requiring them to opt out."
That may sound reasonable. But it represents a major new requirement on unions in the public sector.
Unions have for many years maintained procedures for represented workers who are no formal members to "opt out" of paying additional dues for political work. But the requirement of an affirmative "opt-in" creates a significant amount of additional communication, paperwork and process expense and complexity for unions. There is no question that, in the fast-paced world of contemporary politics, this is a dramatic new burden. We are not talking about small numbers of workers here; Justice Alito's ruling makes reference to 28,000 represented workers who fall into the category for the Service Employees union local at the center of this case.
2. Justice Alito suggests that he is interested not just in those with political objections to a union's electoral agenda but folks who simply do not want to pay the fees -- making reference to "First Amendment protection for employees who might not qualify as active 'dissenters' but who would nonetheless prefer to keep their own money rather than subsidizing by default the political agenda of a state-favored union." So his ruling goes far beyond the narrow "free speech" considerations referenced in most media coverage of this case. That raised appropriate red flags for Justice Breyer, who noted correctly in his dissent that "where, as here, non-chargeable political expenses are at issue, there may be a significant number of represented nonmembers who do not feel strongly enough about the union's politics to indicate a choice either way. That being so, an "opt-in' requirement can reduce union revenues significantly, a matter of considerable importance to the union, while the additional protection it provides primarily helps only those who are politically near neutral."
Throughout Justice Alito's decision, there is a disturbing pattern of advocacy that seems to suggest he, and presumably his fellow conservative justices, want to go much further in limiting the flexibility of unions. Alito's decision repeatedly suggests that the Court might go further, if asked, in limiting the ability of unions to collect dues or fees -- perhaps all dues and fees -- from represented workers. "By authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection of fees levied to cover non-chargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate," the justice writes at one point. At another point, he writes, that "procedures used by a union to collect money from non-members must satisfy a high standard." Later, he writes: "The union has no constitutional right to receive any payment from these employees." To be clear, Alito has not found an explicit "paycheck protection" or "right to work" clause in the Constitution yet. But he and, presumably, the Court's activist majority, seems to be looking for one.
3. Justice Alito explicitly rejected definitions of political work by unions that are directly related to the protection of workers pay, benefits and rights, and to the maintenance of collective bargaining. "Public-employee salaries, pensions, and other benefits constitute a substantial percentage of the budgets of many States and their subdivisions. As a result, a broad array of ballot questions and campaigns for public office may be said to have an effect on present and future contracts between public-sector workers and their employers. If the concept of 'germaneness' were as broad as the SEIU advocates, public-sector employees who do not endorse the unions' goals would be essentially unprotected against being compelled to subsidize political and ideological activities to which they object," he wrote.
But aren't fights over salaries, pensions and other benefits, as well as the ongoing ability of a union to fight on behalf of represented workers, germane to those workers -- whether they are union members or not? The court says "no." What would happen, however, if its standards were applied to the corporations that, with the Citizens United ruling and related decisions (including Monday's decision to overturn Montana's anti-corruption law), the Court has done so much to empower politically.
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