Supreme Court attacks union political power

Back in August 2005, the California SEIU levied a temporary assessment (effectively a dues and fees increase) to the public employees it represented, both members and non-members alike, intending to use these funds to defeat anti-union state ballot measures. Under the law, even non-member employees in the bargaining unit can be compelled to pay a percentage of dues representing services benefiting the bargaining unit, but have the right to opt out of paying funds being used for ideological purposes, and the union has to give them fair notice in order to protect that opt-out right.

About 28,000 non-members sued as a class, saying they didn't get the proper opt-out notice, and complained that their First and Fourteenth Amendment rights were violated by being forced to pay for political speech with which they disagreed. The SEIU tried to head off the case and moot it by offering to refund all the fees paid by objecting employees, and glued a dollar bill to each refund offer representing nominal damages.

But no matter. In a 5-4 opinion issued Thursday morning, the Supreme Court found this case to be not-moot because the SEIU could do this again someday, and held that non-member employees can no longer be forced to pay ideological fees without affirmatively opting in to make such payments.  

Stop me if you've heard this before: (1) It's exactly the five you'd expect, with Alito writing for the majority; and (2) the question of opt-out versus opt-in was not squarely before the Court, and went beyond what petitioners were seeking in this case. The Supreme Court reached past the issue of whether this notice and opt-out was sufficient, issuing a harsh defeat to public section employees unions by not allowing them to use opt-out procedures for such assessments at all. Indeed, Justice Alito explains exactly what this decision is about:

Requiring objecting nonmembers to opt out of paying the nonchargeable portion of union dues'as opposed to exempting them from making such payments unless they opt in'represents a remarkable boon for unions. Courts 'do not presume acquiescence in the loss of fundamental rights.' Once it is recognized, as our cases have, that a nonmember cannot be forced to fund a union's political or ideological activities, what is the justification for putting the burden on the nonmember to opt out of making such a payment? Shouldn't the default rule comport with the probable preferences of most nonmembers? And isn't it likely that most employees who choose not to join the union that represents their bargaining unit prefer not to pay the full amount of union dues? An opt-out system creates a risk that the fees paid by nonmembers will be used to further political and ideological ends with which they do not agree. But a '[u]nion should not be permitted to exact a service fee from nonmembers without first establishing a procedure which will avoid the risk that their funds will be used, even temporarily, to finance ideological activities unrelated to collective bargaining.'

(Continue reading below the fold.)