Thomas Jefferson said that, “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.” Today, the U.S. Supreme Court reaffirmed that principle, saying that public sector unions may not compel their members to pay for political activity with which they may disagree. In a 7-2 decision, the Court ruled that government unions must give employees ample notice of upcoming fee increases and the ability to opt out of paying them for political purposes.
“Public-sector unions have the right under the First Amendment to express their views on political and social issues without government interference. See, e.g., Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010). But employees who choose not to join a union have the same rights,” states the Court’s majority in its opinion. “Therefore, 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.”
The case was brought by members of the Service Employees International Union (SEIU) in California, who objected to a fee imposed by the union for political purposes — after the objection period during which employees could dispute such fees had ended. Specifically, the added fee was intended to fight two California ballot initiatives that would curtail unions’ power.
Significantly, the Court’s majority opinion notes how unions commonly get around employees’ objections to collect dues for politics.
An opt-out system creates a risk that the fees paid by nonmembers will be used to further political and ideological ends with which they do not agree. But a “[u]nion should not be permitted to exact a service fee from nonmembers without first establishing a procedure which will avoid the risk that their funds will be used, even temporarily, to finance ideological activities unrelated to collective bargaining.” Hudson, supra, at 305 (internal quotation marks omitted).
Although the difference between opt-out and opt-in schemes is important, our prior cases have given surprisingly little attention to this distinction. Indeed, acceptance of the opt-out approach appears to have come about more as a historical accident than through the careful application of First Amendment principles.
In their concurring opinion, Justices Sonia Sotomayor and Ruth Bader Ginsburg agree that SEIU acted egregiously. However, they take exception to the Court considering whether an opt-out system properly protects employees’ First Amendment rights, arguing that it is not directly related to the case at hand. Yet the issue of how the rights in question are exercised is significant.
Unions routinely throw roadblocks in front of workers who try to keep their dues money from funding union politics. Fortunately, lawmakers, especially at the state level, can do something about this, by making opt-in the rule for union political spending. Even better would be to give individual workers the choice of opting to join unions voluntarily, and not as a requirement for employment.
The Court’s full opinion is here.