By Mike Dorf
My latest Verdict column discusses the Supreme Court's decision last month in Knox v. SEIU, Local 1000. In a line of cases going back to 1977's Abood v. Detroit Board of Education, the Supreme Court has allowed that in so-called "agency" or "closed" shops, a union may be empowered to bargain on behalf of all workers in the bargaining unit, whether or not they are union members, and to charge non-members of the union for the bargaining activities, so long as the union gives non-members the opportunity to opt out of the portion of union dues that go for "ideological" activities unrelated to bargaining. As I explain, the Knox case presented a relatively narrow question: Do the same rules that govern how a union may charge non-members who are part of the bargaining unit for bargaining activities on an annual basis apply to a special mid-year assessment, where the assessment is for non-bargaining activities?
The Court answered "no" but commentators have taken the real importance of the case to lie in the broadly anti-union rhetoric of the majority opinion by Justice Alito (joined by the other conservatives: CJ Roberts and Justices Scalia, Kennedy and Thomas). That's fair, but in my column and the balance of this post, I want to suggest that the majority opinion is problematic in an important respect, quite apart from its implications for unions.
The radical suggestion in the majority opinion is that it may be unconstitutional for a union even to charge for its bargaining-related activities. Although such charges have been justified on the ground that they address a free rider problem, the Court--quoting the late labor law scholar Clyde Summers--says that free rider problems do not ordinarily justify permitting private parties to charge other private parties for the costs of the efforts by the former that benefit the latter. As I note in the column, that's true but beside the point. The reason private parties can't ordinarily charge other private parties in that way is that the law doesn't usually authorize such charges, but in Knox the law does authorize unions to charge non-members.
More fundamentally, it's hard to see why the point that Summers was making is a First Amendment point. Consider that the foundation of the limitation on charges for "ideological" activities is usually traced to a principle endorsed by both James Madison and Thomas Jefferson. Jefferson put it this way: "To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical."
The majority opinion in Abood quotes that language but one must immediately recognize that it cannot be taken literally. Government constantly compels taxpayers to "furnish contributions of money" for programs with which many of them disagree. As I noted in a column in 2001: "Pacifists object to the use of their tax dollars for military funding, environmentalists, for funding logging in national forests; and isolationists, for funding foreign aid." So one needs a limiting principle.
Madison and Jefferson made their point in talking about funding for religion in particular, but the Abood line of cases extends their principle to opinions more generally. Still, prior to Knox, the Jeffersonian principle was at least limited to compulsion to support expressive activities. And even then, it only applied against the obligation that one person fund another person's private speech. There was no First Amendment right to object to funding government speech. Thus, notwithstanding the Abood line of cases, as a vegan, I do not get to insist on a refund of my taxes to the extent that they support USDA promotion and advertising for cheese made from cow's milk.
In suggesting that it may violate the First Amendment for non-union members to be compelled to support the non-ideological, bargaining-related activities of unions acting for their benefit, the Knox majority would extend the Jeffersonian principle well beyond anywhere it has gone before. The majority's approach--if applied to government activities as well as private activities--would completely paralyze government, as it would give every taxpayer a veto over where her funds were spent. No doubt for that reason, the Court does not suggest that it would apply the Jeffersonian principle to non-expressive activities by the government itself.
However, even in the private domain, the Court's principle has the potential to do quite a bit of mischief, once one considers how much of what the government accomplishes through private companies. Taken to its logical conclusion, the Knox dictum would give pacifists a right to refuse to pay taxes to the extent that they go to support private military security firms, for example. Indeed, one wouldn't even need to be a pacifist to avoid the tax. Under the Court's approach, it would be sufficient to say one doesn't want to support this, that or the other program that is undertaken by private actors.
Will that happen? Of course not. Instead, we can expect that either the Court will back down from the Knox dictum if and when the issue returns or, if the Court runs with it, to limit it in some way. But if so, don't count on the limitation being self-evidently logical.