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Knox v. SEIU, Citizens United, and the Obamacare Individual Mandate
By Paul Sherman
Yesterday the U.S. Supreme Court handed down its ruling in Knox v. SEIU, the latest in a line of cases protecting the First Amendment rights of workers who are required by state law to pay union dues. Some are pointing to the decision as evidence that the conservative Justices on the Court have a pro-corporate bias. But what the case really stands for is the principle that people should be free to associate with whomever they choose. This principle does not just affect unions; it has important implications for the ongoing debate over the insurance mandate of the Affordable Care Act.
First some background. California is one of a number of states that allows public-sector unions to establish so-called “agency shops” in which all employees are represented by a union. Once an agency shop has been established, all employees are required to pay union dues, even if they would prefer not to be represented by the union. Since 1977, however, the U.S. Supreme Court has held that the First Amendment prevents unions in agency shops from requiring employees to pay for the union’s political activity. Thus, unions must send out a notice to employees detailing the portion of their dues that the union expects to spend on political speech, and employees must be given the opportunity to opt out of paying that portion of their dues.
Knox reaffirmed and extended this principle, holding that if a union wishes to assess money in addition to its regular fees, it must not only provide employees with notice but must also make the system opt-in rather than opt-out.
Predictably, union officials are claiming that Knox is evidence of a pro-corporate bias in the Supreme Court. A representative of the AFL-CIO said that the union was “disturbed, but unfortunately not surprised in the wake of Citizens United, that the court’s activist conservative majority went out of its way to place special burdens on public-sector unions in their effort to represent working people’s interests,” and noted that corporations face no similar limits “when they spend shareholder money on politics.”
But this attack on Citizens United is wrong for two reasons. First, Citizens United removed long-standing restrictions on union speech as well as on corporate speech. Second, unlike employees in an agency shop, corporate shareholders are not compelled to buy shares or otherwise support a corporation. Indeed, as the Court explains in Knox, employees in an agency shop must be allowed to opt-out of a union’s political expenditures because agency shops present a unique situation in which people are forced to associate with unions when they might not agree with their political views.
That’s not to say that Knox couldn’t apply to the corporate world. Although the freedom to associate with corporations is the norm, there’s one example of compelled corporate association that has become well-known: the individual mandate of the Patient Protection and Affordable Care Act. Under the mandate, citizens must enter into ongoing insurance contracts with private corporations.
By next week, we should know whether or not the Supreme Court is going to allow the individual mandate to stand. If it does, the Court will one day have to grapple with the association questions that have plagued it since reaching the anomalous ruling that individuals may be compelled to associate with unions. Just as a number of Catholic organizations have filed suit against the government claiming that the mandate unconstitutionally requires them to offer insurance coverage for contraceptives to which they have a moral objection, some insurance purchasers will undoubtedly object to being compelled to pay for insurance companies’ lobbying expenditures. Both arguments are analogous to the claims of non-union members in agency shops who object to having to pay for a union’s political expenditures. The result, if the history of unions is a guide, will be decades of litigation and debate over the propriety of forcing people to pay for speech to which they object.
The Court doesn’t have to go down that path. Justice Alito’s majority opinion in Knox expressed serious doubts about the justification for requiring individuals to associate with unions. The Court should not expand this dubious precedent—and the threat it poses to free speech—by compelling people to associate with health-insurance companies. Instead, as the Court held in Knox “[t]he general rule—individuals should not be compelled to subsidize private groups or private speech—should prevail.”
The author is an attorney at the Institute for Justice, which litigates First Amendment cases nationwide.
http://www.forbes.com/sites/realspin/2012/06/22/knox-v-seiu-citizens-united-and-the-obamacare-individual-mandate/
bye bye union pricks!
By Paul Sherman
Yesterday the U.S. Supreme Court handed down its ruling in Knox v. SEIU, the latest in a line of cases protecting the First Amendment rights of workers who are required by state law to pay union dues. Some are pointing to the decision as evidence that the conservative Justices on the Court have a pro-corporate bias. But what the case really stands for is the principle that people should be free to associate with whomever they choose. This principle does not just affect unions; it has important implications for the ongoing debate over the insurance mandate of the Affordable Care Act.
First some background. California is one of a number of states that allows public-sector unions to establish so-called “agency shops” in which all employees are represented by a union. Once an agency shop has been established, all employees are required to pay union dues, even if they would prefer not to be represented by the union. Since 1977, however, the U.S. Supreme Court has held that the First Amendment prevents unions in agency shops from requiring employees to pay for the union’s political activity. Thus, unions must send out a notice to employees detailing the portion of their dues that the union expects to spend on political speech, and employees must be given the opportunity to opt out of paying that portion of their dues.
Knox reaffirmed and extended this principle, holding that if a union wishes to assess money in addition to its regular fees, it must not only provide employees with notice but must also make the system opt-in rather than opt-out.
Predictably, union officials are claiming that Knox is evidence of a pro-corporate bias in the Supreme Court. A representative of the AFL-CIO said that the union was “disturbed, but unfortunately not surprised in the wake of Citizens United, that the court’s activist conservative majority went out of its way to place special burdens on public-sector unions in their effort to represent working people’s interests,” and noted that corporations face no similar limits “when they spend shareholder money on politics.”
But this attack on Citizens United is wrong for two reasons. First, Citizens United removed long-standing restrictions on union speech as well as on corporate speech. Second, unlike employees in an agency shop, corporate shareholders are not compelled to buy shares or otherwise support a corporation. Indeed, as the Court explains in Knox, employees in an agency shop must be allowed to opt-out of a union’s political expenditures because agency shops present a unique situation in which people are forced to associate with unions when they might not agree with their political views.
That’s not to say that Knox couldn’t apply to the corporate world. Although the freedom to associate with corporations is the norm, there’s one example of compelled corporate association that has become well-known: the individual mandate of the Patient Protection and Affordable Care Act. Under the mandate, citizens must enter into ongoing insurance contracts with private corporations.
By next week, we should know whether or not the Supreme Court is going to allow the individual mandate to stand. If it does, the Court will one day have to grapple with the association questions that have plagued it since reaching the anomalous ruling that individuals may be compelled to associate with unions. Just as a number of Catholic organizations have filed suit against the government claiming that the mandate unconstitutionally requires them to offer insurance coverage for contraceptives to which they have a moral objection, some insurance purchasers will undoubtedly object to being compelled to pay for insurance companies’ lobbying expenditures. Both arguments are analogous to the claims of non-union members in agency shops who object to having to pay for a union’s political expenditures. The result, if the history of unions is a guide, will be decades of litigation and debate over the propriety of forcing people to pay for speech to which they object.
The Court doesn’t have to go down that path. Justice Alito’s majority opinion in Knox expressed serious doubts about the justification for requiring individuals to associate with unions. The Court should not expand this dubious precedent—and the threat it poses to free speech—by compelling people to associate with health-insurance companies. Instead, as the Court held in Knox “[t]he general rule—individuals should not be compelled to subsidize private groups or private speech—should prevail.”
The author is an attorney at the Institute for Justice, which litigates First Amendment cases nationwide.
http://www.forbes.com/sites/realspin/2012/06/22/knox-v-seiu-citizens-united-and-the-obamacare-individual-mandate/
bye bye union pricks!
