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.

38 comments:

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...

http://www.acslaw.org/acsblog/%E2%80%98citizens-united%E2%80%99-exposes-public-pensions-to-free-speech-challenges-harvard-prof-writes

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!

Jet Li said...

Your blog article is very intersting and fanstic,at the same time the blog theme is unique and perfect,great job.To your success.
-----------------
Runescape Gold Cheap Diablo 3 Gold WOW Gold

Cristiero Rola said...

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
Windows 7 professional Key
Windows 7 Key

Chogavl Miller said...

Big buckles and even go definitely makes the Elmo's House collars truly adjustable and any one someone can end up dog leashes custom-made together with your canines identity.To successfully wedding ring inside the season look at the legitimate jingle bell scruff of the neck out of Auburn Leathercrafters which has a favorable row regarding jingle alarms and are usually stamped with metallic snowflakes. Constructed from properly done set by way of consistent shiny 4 corners and also vibrant pennie plated computer hardware, typically the Auburn Leathercrafters jingle bell scruff of the neck enters the picture red and even alternative to match your puppie's jacket tone and in addition comes in lots of different sizes. lovelonglong.com

cartier said...


But I think a better example might be business "speech," at least business "speech" including publicly-traded with http://www.mmomesos.com/ organizations. I may have inventory in Acme Nutrients, but Acme Nutrients doesn't ask my authorization before purchasing an anti-environment ad. But my cash is being used to persuade conversation I discover undesirable.

The apparent difference is that there's something different between having a job from http://www.warcraftonlines.com/sitemap.xml
and getting a organization. But should there be? From a realistic viewpoint, it might be more complicated to stop your job and perform somewhere else, but it isn't possible; does the difference have any actual CONSTITUTIONAL significance?

mas jangkrik said...

I am so much excited after reading your blog. http://www.herosoftmedia.com

mas jangkrik said...

Wow...there are more valuable information in this site. we can learn more from this site. visit here

mas jangkrik said...

Took me time to read all the comments, but I really enjoyed the article. grow up USA

mas jangkrik said...

We are really grateful for your blog post. You will find a lot of approaches after visiting your post. Great work.....Amazing !!!! ! wisata pulau tidung

mas jangkrik said...

Hello, i am not accustomed to passing comments on discussions, but i am quite astounded by this site, so i will definitely visit again jual pemutih gigi

mas jangkrik said...

Iam very happy to reading, Hope you continue to share your information more :)
produk penghilang jerawat

mas jangkrik said...

Nice information, valuable and excellent design, as share good stuff with good ideas and concepts, lots of great information and inspiration, both of which I need, keep your post pelangsing acai berry

mas jangkrik said...

Keep the good work going by continue blogging new and entertaining posts. grosir baju wanita

mas jangkrik said...

Wow amazing, Nice content I found so many interesting stuff in your blog especially its discussion Thanks to sharing thanks! rental mobil jogja

mas jangkrik said...

A wonderful and unique articles, I love reading and I am always searching for informative information like this! Thank you crocs original

mas jangkrik said...

Nice site, This is truly a great read for me. Keep up the work click here

katieanderson said...

This issue raises a red flag, significantly since some united citizens say basically non-partisan in impact given each unions and companies profit. But, is this extremely equally true? http://www.manchesterescortsservices.co.uk

mas jangkrik said...

Wow amazing, Nice content I found so many interesting stuff in your blog especially its discussion Thanks to sharing thanks! click here

Aura Valensia said...

Your article definitely worth looking through. I recently found the application well written and then quickly logical. I must personally we understand the time you devote to create the application.
kosmetik online frutablend kaminomoto harga glutera serum korea serum gold

Slamet Obama said...

I am often to blogging and i really respect your content. The article has really peaks my interest. I am going to bookmark your site and preserve checking for new information. baju anak online

Slamet Obama said...

Very nice post. I just stumbled upon your weblog and wished to say that I have truly enjoyed browsing your weblog posts. Thanks dude sewa mobil murah solo

Skyrim Expart said...

I really like the fresh perfection you did on the issue. Really was not expecting that when I started off studying. Your concepts were easy to understand that I wondered why I never looked at it before. news

Slamet Obama said...

This is a smart blog. I mean it. You have so much knowledge about this issue, and so much passion pengolahan air bersih

Atiq Rumi said...

Actually I am not habituate to reply a comment on blogs but this blog caught my attention and I am compelled to write a comment here to express my gratitude to you. I would like to appreciate for this awesome work. news

sadia sulaman said...

Gets your blood pumping really fast and strong? Thanks a lot for sharing this with us.desktop backgrounds

sadia sulaman said...

I extremely grateful that you perform this piece of writing very simply, I mean to say that it's quite simple to read and understand. grandstream gxp1450

steve7876 said...

I like the fresh perfection a person did within the issue. Actually was not Apple Passbook Passes expecting that after I started off studying. Your concepts were simple to implement that My spouse and i wondered precisely why I never checked out it just before.

shahbaz said...

This is just another one of your brilliant articles. Truth be said, you are one of the most brilliant man I've ever seen on the internet. You views are so great and they tell us that you are quite mature for your age. I would like you to continue on this brilliant exhibition. pool power salt cell

Buy Ibeacons online said...

Do you want to learn meditation online? Light Watkins has been providing meditation course from many year in new york.Home meditation courses Get the best meditation audio course online and best personal trainer now.

aminos lahragui said...


Very awesome post , i am really impressed with it a lot


فوائد الزنجبيل

فوائد الرمان

فوائد الحلبة

فوائد البصل

فوائد الزعتر

فوائد زيت السمسم

علاج البواسير

فوائد اليانسون

فوائد الكركم

قصص جحا

صور يوم الجمعه

علامات الحمل

تعريف الحب

حياة البرزخ

فوائد الزبيب

amine lahragui said...

thanks so much for that great blog and thanks also for accepting my links thanks
طريقة عمل الدونات طريقة عمل البان كيك طريقة عمل الكنافة طريقة عمل البسبوسة طريقة عمل الكيك طريقة عمل عجينة البيتزا فوائد القرفه

aminos lahragui said...


thanks so much i like very so much your post
حلى الاوريو الفطر الهندي صور تورته حلى قهوه طريقة عمل السينابون طريقة عمل بلح الشام بيتزا هت كيكة الزبادي حلا سهل صور كيك عجينة العشر دقائق

Akbar Jaya Perkasa said...

I definitely really liked every part of it and i also have you saved to fav to look at new information in your site Akbar abayweb Percetakan Cetak Brosur Cetak Kalender Cetak Undangan

Pusat Les Privat said...

This website is really wonderful . If you need this
guru Les privat di Surabaya
guru les privat ke rumah di Surabaya
Les privat guru ke rumah siswa di Jogja
sewa mobil di Pare
ojek dan rental motor di Pare kampung inggris
rental motor dan ojek di Pare Kediri
Kursus Bahasa Inggris di Pare Kediri
guru les privat bahasa inggris ke rumah
Les privat Surabaya
Guru les privat TK di Surabaya
Les privat untuk SD di Surabaya
Les privat SMP/MTS di Surabaya
Les privat SMA/MA/SMK di Surabaya
Les privat TK,SD,SMP,SMA,Mahasiswa,Karyawan, dan Umum di Surabaya
Penyedia Guru les privat semua mata pelajaran di surabaya

jaring futsal dan rumput futsal said...

Nice article, thanks for the information. It's very complete information. I will bookmark for next reference
jaring futsal | jaring golf | jaring pengaman proyek |
jaring pengaman bangunan | jaring pengaman gedung
http://www.jual-jaring.blogspot.com/
http://www.agen-jaring.blogspot.com/
http://www.pancasamudera-safetynet.blogspot.com/
http://www.toko-jaring.blogspot.com/
http://www.pusat-jaring.blogspot.com/
http://jualjaringpengaman.blogspot.com/
https://pancasamudera.wordpress.com/
https://pasangjaringfutsal.wordpress.com/
https://jualtambangmurah.wordpress.com/
https://tokojaring.wordpress.com/
https://jualjaringfutsal.wordpress.com/
https://jaringfutsal.wordpress.com/