In states like California that allow "agency shops," unions have the right to charge even nonmembers dues to cover the costs of collective bargaining that benefits all workers. But the 1st Amendment prohibits them from forcing those nonunion employees to pay for political campaigns they don't support. The Supreme Court has reaffirmed that reasonable principle with a decision that requires an employee to agree to such payments in advance.
By a 7-2 vote, the court ruled last week that the Service Employees International Union violated the 1st Amendment when it collected an extra $6.45 per month from nonmember state employees in 2005 to be used in a campaign against two California ballot measures opposed by labor. One of those measures, coincidentally, would have required public employee unions to obtain workers' written consent before charging them fees to be used for political purposes. Both questions failed to win voter approval.
In anticipation of what was expected to be a bruising political fight, the SEIU announced a midyear dues increase to support a "Political Fight-Back Fund," though the union insisted that some of the money collected would pay for other activities such as union meetings. Employees who had objected to the use of some regular dues for political purposes were allowed to pay only 56% of the special assessment, not the full 100% charged to members. But that still put them in the position of contributing to a political campaign they didn't support.
That, JusticeSamuel A. Alito Jr.rightly said, violated long-standing precedents under which public employees who choose not to join a union may not be compelled to underwrite the union's political activities. But Alito went further than that, both rhetorically and substantively, in a majority opinion signed only by four other Republican-appointed justices.
"This aggressive use of power by the SEIU to collect fees from nonmembers is indefensible," he wrote. "Even a full refund would not undo the violation of 1st Amendment rights.... Therefore, when a public-sector union imposes a special assessment or dues increase [for political purposes], the unions must provide a fresh … notice and may not exact any funds from nonmembers without their affirmative consent."
Two justices in the majority, Sonia Sotomayor and Ruth Bader Ginsburg, objected to Alito's "opt-in" requirement, and expressed concern that it might be applied in the future not only to special assessments for political purposes but also to emergency collections for nonpolitical purposes.
Some of Alito's language bristled with hostility toward unions. But he has the better argument on "opt-in" versus "opt-out" when it comes to political activities. In 2005 this page endorsed Proposition 75, the so-called paycheck protection measure the SEIU successfully opposed. At the time we argued that it reinforced "the right of union members to insist that their hard-earned income not be diverted to political causes they don't endorse." The same 1st Amendment concerns justify the court's decision.