Slow Bleeding in Political Financing

If the Supreme Court’s holding in Citizens United empowered SuperPACs, unions and corporate donors to buy elections with massively and uncapped funding of political support for whomever and whatever they wish to champion – as long as there is no direct coordination with the candidates themselves – another case may be pulling the economic power away from that union component. In the raging seas that surrounded the Court’s decision on the Affordable Care Act or Arizona’s efforts at curbing illegal immigration, one additional decision, rendered on June 21^st, may have gone unnoticed: Knox v. Service Employees Union International, Local 1000.

The decision addressed the right of a union of public employees to require people in the collective bargaining unit to support the union with corresponding dues, even they are not members (because they opted out). In states (like California) that allow an “agency shop” (permitting a collective bargaining representative – the union – appointed by a majority of workers), traditionally, these “opt-out” members have at least been required to contribute dues to the extent that they support the collective bargaining (vs. political) aspects of the union – since all of the workers receive the resulting economic and work-rule benefits – under a series of Supreme Court decisions.

“The Supreme Court, beginning with Abood v. Detroit Board of Education, decided in 1977, has said that non-members cannot be forced to pay for the political activities of the union, but they have to pay for the union’s collective bargaining activities because they benefit from them. In 1986’s Chicago Teachers Union v. Hudson, the Supreme Court said that unions must go through an annual accounting procedure, calculating the percentage of dues that went to collective bargaining as opposed to political activities.” Erwin Chemerinsky writing in the American Bar Association Journal, July 2^nd. This “allocation” formula has become pretty standard practice, even though it can be complex.

In Knox, the Court examined a union-imposed assessment on public workers in California to fight various ballot initiatives that would have curtailed public union power in the state. The initiatives went down to defeat after a very strongly union-backed campaign to kill these proposed limitations. “In Knox v. SEIU, the court held the First Amendment rights of non-union members had been violated. The court could have decided the case on narrow grounds, simply holding that there should have been a calculation as to the percentage of the special assessment used for political purposes and that non-members should have been able to opt out of this. That was actually the position advocated by the plaintiffs, the non-union members who brought suit.

“But Justice Samuel A. Alito Jr., in an opinion joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas, instead questioned the court’s decisions of the last 35 years, which have allowed unions to require that non-members opt out of providing funds for political activities. He wrote: ‘Similarly, requiring objecting nonmembers to opt out of paying the nonchargeable portion of union dues—as opposed to exempting them from making such payments unless they opt in—represents a remarkable boon for unions. Courts ‘do not presume acquiescence in the loss of fundamental rights.’

“In light of this objection to the traditional opt-out procedure, the court held that for special assessments non-union members can be charged for political activities only if they affirmatively choose to provide funds. The court stated: ‘[t]herefore, when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent.’” Chemerinsky. By adding an additional layer on such public unions, requiring a separate “opt in” for non-members on such assessments, the Court not only made the process of raising union money for such causes more cumbersome, they have effectively reduced the amount of money that unions will actually be able to raise in such efforts.

On its face, and without looking at other recent rulings, there is an inherent fairness about the Court’s conclusion. Taken in the context of Citizens United, however, the Court clearly tilted the playing field in favor of major corporations and big financial donors at the expense of those who are working for wages under public union collective bargaining agreements (and perhaps any collective bargaining units, public or private). If unions have to check with the members of their collective bargaining units to use money for such political circumstances, wouldn’t it stand to reason that corporations should be required to ask their shareholders? But that’s that not where the rulings stand.

“There is a profound irony to the Supreme Court’s decision. In 2010, in Citizens United v. Federal Election Commission, the Supreme Court expressly rejected the concern that corporations should not be able to spend the money of their shareholders on political expenditures. In prior decisions, the Supreme Court specifically said that the government could restrict independent political expenditures by corporations so as to protect shareholders from having their money spent for political candidates they oppose. But Citizens United brushed this concern aside, overruled these decisions, and held that corporations can spend unlimited sums to have candidates elected or defeated.

“In light of Knox, one solution for state legislatures will be to require opt-in for both corporations and unions. A state can adopt a law which says that neither a corporation nor a union can spend money on political activities without the consent of the individuals. If the Supreme Court is going to require opt-in for unions, it seems only fair and appropriate that the same be required for corporate political spending.” Chemerinsky. But will such legislation sustain the scrutiny of this Court? And why is such “playing field leveling” legislation a burden that is placed on states, when the very existence of two tiers of rules, one for the power elite and another for the working class, shouldn’t have happened in the first place.

I’m Peter Dekom, and even with an occasional flash of neutrality, our Supreme Court is acting more and more like a legislature with a rather clear bias.