Tuesday, July 17, 2012

The Knox v. SEIU Dictum is Truly Radical

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.


Justin said...

Two comments:

One, I don't profess to know much about Knox, but I do think that if you pay the GOVERNMENT money and the GOVERNMENT spends it on a contractor, that's still "applying Knox to the Government." So I don't think your analogy holds.

But I think a better analogy might be corporate "speech," at least corporate "speech" involving publicly-traded companies. I may have stock in Acme Minerals, but Acme Minerals doesn't ask my permission before buying an anti-environment ad. But my money is being used to compel speech I find objectionable.

The obvious distinction is that there's something different between having a job and investing in a company. But should there be? From a practical standpoint, it might be harder to quit your job and work somewhere else, but it isn't possible; does the distinction have any real CONSTITUTIONAL significance?

Joe said...


This issue raises a red flag, particularly since some say Citizens United is really non-partisan in effect given both unions and corporations benefit. But, is this really equally true?

Hashim said...

Doesn't Johanns pretty clearly cut off your slippery slope, by holding that Govt expenditure of tax revenues is Govt speech exempt from 1A scrutiny (at least absent any reasonable possibility that that someone will confuse the speech for the taxpayer's)?

At that point, we're only talking about the quite uncommon situation where the Govt can validly require the direct transfer of money from A to B -- e.g., in the public-union context, as a condition of govt employment. And I don't think it'd be that radical to say that such compelled transfers violate the 1A whenever the receipient is an expressive association such as a union, regardless of how the precise dollars are purportedly spent (given fungibility). More importantly, it just won't arise very often, since such compelled direct subsidization is quite uncommon.

Interestingly, this means that unions can fight back here: they can have the Govt cut wages to employees, and then distribute the savings to unions as a spending measure. Of course, that would require the political will to do so. But the 1A would be no impediment.

Michael C. Dorf said...

Hashim is right that Supreme Court doctrine places great significance on whether money formally passes through the government's hands in a range of areas. See, for example, the economically fictional decision in Arizona School Tuition Organization v. Winn -- and so there is good reason to think that the slippery slope I worry about will not come to pass. But I'd note the artificiality of the distinction. And I'd also note that to the extent that one thinks govt speech is really different, there are limits on what can be accomplished through government speech. Let me give two examples (neither of which is meant to support my main post but simply inspired by his comment): 1) Religious organizations that receive de facto govt subsidies (via the tax code) can engage in religious speech that would violate the Establishment Clause if engaged in by the govt; 2) Presumably government could not engage in the sort of "ideological" speech in which the union was engaged in Knox: E.g., the govt couldn't take tax money and spend it to support or oppose some particular candidate in an election. In my view, doing so would violate the First Amendment, but perhaps one might think it violates equal protection. Food for thought for a future post!

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At that point, we're only talking about the quite uncommon situation where the Govt can validly require the direct transfer of money from A to B -- e.g., in the public-union context, as a condition of govt employment. And I don't think it'd be that radical to say that such compelled transfers violate the 1A whenever the receipient is an expressive association such as a union, regardless of how the precise dollars are purportedly spent (given fungibility). More importantly, it just won't arise very often, since such compelled direct subsidization is quite uncommon.Windows 7 ultimate Key
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