The Supreme Court and Union Political Power

The Supreme Court later this term will hear a vitally important case involving union dues.  The case originates from California where a group of Orange County teachers stand in opposition to the payment of union dues claiming it is a form of compelled speech.  Considering that both the NEA and the AFT are some of the largest political contributors in this country at all levels of government every year AND that greater than 98% of those political donations go to Democrats, the stakes are high.  Organized labor fears a decision in favor of the teachers which would affect not only the NEA and AFT and their state affiliates, but every union in this country, especially public worker unions where recent organizing has had its greatest recent success.

First, a little background.  Union dues are collected in each paycheck and generally amount to about 2% of a union member’s annual salary.  For some, this could be a substantial sum.  The dues are used to administer a collective bargaining agreement and for other purposes.  For example, those dues may buy you legal representation in a dispute with the school district.  It may also buy you a tough negotiator in a contract dispute.  But to the unions, it also allows them to make political donations to candidates and parties who support their national or local agendas.

As noted, greater than 98% of these donations go to Democrats.  Yet, an estimated 25% of teachers are registered Republicans while another 30% consider themselves independent.  Thus, greater than 98% of political donations go to a party that represents 45% of teachers nationally.  This is obviously prima facie evidence of compelled political speech.

However, the unions will argue that teachers or any union member is afforded an opt-out with respect to the political advocacy use of their dues.  In a previous case- Abood vs. New Jersey- the Supreme Court partially sided with unions and stated that if one receives a benefit from a union as a result of those dues payments, they must share some of the financial responsibility, called an agency fee.  This led many unions and governments to refine the methods and allow employees to opt-out with respect to the political advocacy aspects.

The trouble is that despite having this option available, given the option and actually opting out are two very different animals.  The opt out procedure is time-consuming; so time-consuming that many employees just say it is not worth the trouble.  Clearly, an opt-out system places inertia on the side of the union.  This case basically argues for an opt-in solution.

The reason organized labor is petrified can be summarized in one word: Wisconsin.  There, Governor Scott Walker pushed a labor reform package that released workers from paying union dues even though they may benefit from union membership.  Three things happened as a result- (1) union member take home pay increased and (2) union membership declined 33%.  As a result, given decreased funds for political advocacy, (3) organized labor’s political clout decreased in Wisconsin.

This case would effectively do nationally what Wisconsin achieved through legislative action.  The most dramatic effects would be seen in states where there is a large unionized public worker presence: New York, Connecticut, California, Illinois and New Jersey.  In California alone, the teacher union takes in more than $174 million.  Although unions are less than forthcoming in the amount they spend on political activities, they begrudgingly admitted that it was about 5% of their annual intake.  Other lawsuits revealed that in certain cases, the amount exceeded 15%.  But, for the sake of argument, let us go with the conservative estimate put forth by organized labor- 5%.  Considering that unions take in over $10 billion annually, that puts the figure at $500 million spent every cycle on political advocacy through political action committees.  It is why the NEA/AFT annually show up near the top in terms of political donations with 98% of it going to Democrats.  In layman terms, that is $490 million for the Democratic Party and $10 million for the GOP.

Prognosticating the outcome of this case is difficult.  Justice Kagan is a strong supporter of unions and Ginsberg, Breyer and Sotomayor will likely follow.  Conversely, Justice Alito stands on the other side of the argument and has signaled he wants to free union workers of what amounts to compelled political speech.  Chief Justice Roberts, along with Thomas and Kennedy are likely to follow Alito.  That, surprisingly, leaves Justice Scalia as the swing vote.

This is one of those rare cases where oral argument and where it leads may actually determine the outcome of the case.  Although perhaps the most conservative member on the Court, Scalia has in the past frowned on workers who benefit from collective bargaining agreements who do not financially help in that area.  If the teacher union argues that the purpose of these fees is to help the little guy through organized labor, the obvious response is that even more little guys- taxpayers who bear the financial brunt of lucrative collective bargaining agreements- are hurt.  Along the way, the member who is essentially forced to pay for the advocacy of a political position with which they disagree is egregiously hurt.  The presence of an opt-out provision is not the solution as real life experience illustrates.

This is clearly a First Amendment case and one of individual rights- those of the roughly 55% of union members who are not Democrats.  The purpose of the Court is to defend individual constitutional rights, especially in the expression of political viewpoints.  Their role is not to protect union dues and union political advocacy.  So said Thomas Jefferson: “…to compel a man to furnish money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.”  Hopefully, the Supreme Court will find it also unconstitutional.