SCOTUS: Unions Can’t Take Non-Members’ Money to Fund Their Politics

By Matt Cover | June 21, 2012 | 11:49 AM EDT

( In a 7-2 ruling issued Thursday, the  U.S. Supreme Court declared that labor unions may not take non-members money to fund their political activities without the consent of those non-members. Doing so violates the First Amendment protection against compelled speech, the justices said.

The case, Knox v. SEIU, involved a California branch of the Service Employees International Union (SEIU), which levied a fee on both members and non-member public employees to engage in a political action campaign against two ballot initiatives proposed by then-Governor Arnold Schwarzenegger (R).

At issue is whether the state of California can force non-union employees to contribute to the SEIU’s political activities. The Supreme Court ruled that it could not, because doing so unconstitutionally compels non-union members to participate in SEIU activities that they may not agree with.

“This aggressive use of power by the SEIU to collect fees from nonmembers is indefensible,” Justice Samuel Alito wrote for the majority. “[T]he effect of the SEIU’s procedure was to force many nonmembers to subsidize a political effort designed to restrict their own rights.”

The political effort was a ballot initiative, Proposition 75, which would have exempted non-union employees from having to pay for a union’s political activities, if their workplace was unionized. Under California law, employees do not have to join a union even if they work in a unionized factory or office.

They do, however, have to pay union dues. If they object to paying union dues, they are still required to pay partial dues covering a union’s non-political activities. They can also be charged by the union for political activities – unless they choose to opt out.

In this case, SEIU levied an additional political action fee on California public employees without giving non-members notice – known as a Hudson notice – and the option to withhold contributions.

In other words, the SEIU took non-members’ money without their consent to fund a political campaign to keep them from having the right to opt out of just such political campaigns.

The Court also ruled that the SEIU’s treatment of non-members who had opted out of paying their full, normal union dues also violated the Constitution.

“The SEIU’s treatment of nonmembers who opted out when the initial Hudson notice was sent also ran afoul of the First Amendment,” Alito wrote.

At issue here was how the SEIU treated non-members who had opted-out of paying their full regular union dues. If a non-member opts out, they are still required to pay the portion of union dues that covers the union’s non-political expenses.

However, when the SEIU levied its political action fee on non-members, it forced those who had previously opted out to pay 56 percent of the political action fee.

The SEIU argued that it was permissible to charge non-members this partial fee for political action because it would help cover other non-political activities. The Court rejected this argument, saying that the SEIU had specifically stated the money was for political action, and that levying even a partial fee for political action was unconstitutional.

“The general rule—individuals should not be compelled to subsidize private groups or private speech—should prevail.”

Alito said that the First Amendment must protect both union and non-union speakers alike, arguing that the current system of using opt-out forms already infringes on non-members’ First Amendment rights.

“As we have noted, by allowing unions to collect any fees from nonmembers and by permitting unions to use opt-out rather than opt-in schemes when annual dues are billed, our cases have substantially impinged upon the First Amendment rights of nonmembers.”