Dec 10, 2013
The Right’s Boon in Knox v. SEIU
Posted on Feb 10, 2012
By Bill Blum
On the surface, the case of Knox v. Service Employees International Union (SEIU), now pending before the U.S. Supreme Court, lacks blockbuster appeal. Unlike other high-profile disputes on the court’s docket, such as those involving the constitutionality of President Obama’s health care legislation and Arizona’s immigration law, Knox has flown largely under the radar.
However, in the wake of the Supreme Court’s Citizens United decision in January 2010, which was predicated in part on the tenuous claim that labor unions would counter the political influence of corporations, the Knox case has the potential to further rig the playing field in favor of big business and the right wing.
The facts in Knox are simple enough. With more than 2 million members, SEIU is the fastest-growing union in North America and one of the most progressive. According to The New York Times, in the last quarter of 2011 alone, the union contributed $1 million to Priorities USA, a Democratic super PAC supporting Obama’s re-election, and hundreds of thousands more to super PACs established to help elect Democrats to the House and Senate.
Roughly half of SEIU members, like those who belong to the union’s Local 1000 in California, are employed by state and local governments. California law does not require state employees to join a union, but those who opt out are nonetheless assessed a “fair-share” fee (usually a percentage of ordinary membership dues) that is paid to the union to cover the costs of collective bargaining, which benefits all workers. The union, in turn, is precluded by federal law from using such fees for political advocacy without advance notice, affording non-members the opportunity to pay a reduced fee related only to bargaining. Although regular union dues are treated differently, even union members have the legal right to object to having their dues spent on political causes.
In June 2005, in compliance with federal law, Local 1000 sent mailers (known as “Hudson notices” after a Supreme Court case decided in 1986) to nonmembers containing detailed information on how their fair-share fees would be calculated and used. In August that year, the local sent out another mailing advising nonmembers and members alike that the union would levy a temporary assessment on both dues and fair-share fees to help defeat two initiatives promoted by then-Gov. Arnold Schwarzenegger and the state’s Republican leadership that had qualified for the California ballot—one aimed at capping overall state spending and another aimed at further restricting the use of union funds for political purposes.
Judging from the oral arguments in Knox v. SEIU heard by the court this past January, the justices will reject the union’s request to dismiss the case and issue a ruling against the union. The only issue will be the scope of the labor movement’s defeat. At a minimum, the ruling will highlight a longstanding contradiction at the heart of campaign finance law that Citizens United has greatly exacerbated. On its face, Citizens United held for the first time that corporations, unions and trade associations possess a First Amendment right to make “independent” expenditures (those that are not directly “coordinated” with candidates) from their general treasuries directly on political campaigns. Two months after the Supreme Court handed down its Citizens United ruling, the D.C. Court of Appeals ruled in Speechnow.org v. FEC that such expenditures—typically made to what have come to be called super PACs and even more shadowy nonprofits—may be unlimited.
But as Harvard law professor Benjamin Sachs points out in a forthcoming article in the Columbia Law Review, the formal legal equality announced in Citizens United masks a fundamental inequality between unions and corporations when it comes to raising political action funds. While unions are prohibited by law from spending employees’ dues and fees on politics if the employees object, corporations are free to spend their assets on politics even if individual shareholders don’t want them to.
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