Cross-posted from The Nation
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.
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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
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
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.
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John Nichols, a pioneering political blogger, has written the Online Beat since 1999. His posts have been circulated internationally, quoted in numerous books and mentioned in debates on the floor of Congress.
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