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Restriction on Union's Political Use of Coerced Fees from Non-Members:

Lawprof Rick Hasen (Election Law blog) predicts a 9-0 vote upholding the law, and reversing the Washington Supreme Court's decision holding that the law violated the union's First Amendment rights. I cowrote an amicus brief in the case on that side, and I'm pleased to hear Rick's prediction. It's generally risky to put much stock on prediction from oral arguments, but here the case in favor of the law's constitutionality strikes me as objectively very strong (for the reasons mentioned in the brief), and the oral argument analysis thus strikes me as especially plausible.

UPDATE: Lawprof Paul Secunda (Workplace Prof blog) agrees that this is the likely result, though by a 7-2 vote.

Related Posts (on one page):

  1. Restriction on Union's Political Use of Coerced Fees from Non-Members:
  2. Amicus Brief in Forthcoming Supreme Court First Amendment Case:
r78:
Hmm . . . if someone actively works for laws that will cripple the ability of unions to fund their political advocacy, does that tend to make ther person liberal/ conservative/ libertarian?

I guess you could frame it as "standing up for the little guy" since about $25 of the $300 in union dues went for political activities.
1.10.2007 5:21pm
Glenn W. Bowen (mail):
I'm all for it- the day before the last elections I received an anti-war 8x11 post card from these mutts featuring Pete Seeger, Cindy Sheehan, and Michael Moore. I'm a union member, and the AFL-CIO pumps money into that party.

In no way, shape, or form do I want my money going towards such a thing.

-then when I voted the next morning, the elections monitor was wearing an electioneering Green Party tee shirt in violation of the law, but in consolation, I could get free condoms in the lobby of the building on the way out... a story for another day.
1.10.2007 5:21pm
dejapooh (mail):
I would like to see a similar law passed requiring businesses to get permission from their owners (stock holders) before participating in political activity. It makes sense that the owners should be able to opt out and receive their fair share of the money that was going to go into political activity as a supplement to dividend payment.
1.10.2007 5:22pm
Shelby (mail):
dejapooh,

There's a case to be made for that, though I think it's overridden by the fact that you don't have to own shares in any given company in order to have a job there (unless you're, say, the CEO, in which case you call the shots anyway). How about a law requiring businesses to notify their shareholders of planned political giving?
1.10.2007 5:26pm
Shelby (mail):
SOrry, that was a bit unclear -- you don't have to own shares in any given company, period, with the narrow exception I noted. There's no coercion invovled. Unions typically require that all employees in a given job be union members, paying union dues.
1.10.2007 5:28pm
Eugene Volokh (www):
r78: Unions indubitably have the right to use member dues for political purposes. The question is what they should do with agency fees by people who deliberately choose not to join the union, but who are still required by the employer's union contract to pay the fees.

In the Davenport case, 95% of the fees the union gets are from members, and 5% get from people who have chosen not to join. It's hard to see how requiring the union to get opt-ins from the 5% (rather than just to honor opt-outs, which the U.S. Supreme Court has said the union must do) would "cripple the ability of unions to fund their political advocacy." Moreover, if it does in some small measure weaken the ability of unions to fund their political advocacy, it just puts them in the same position as the ACLU, the NRA, and other groups -- they are free to fund political advocacy, but only using money voluntary paid to them.
1.10.2007 5:50pm
dejapooh (mail):
As a member of a union, you have a voice in how that union spends it money. While I do not agree with the way my union spends it's money, I have the right to participate in setting the agenda. If I decide that I do not wish to participate (opt out) I can do so. It puts a very high bar in front of the union to ask it to get permission from each of its members (opt in). It is much more reasonable to expect those who do not want to participate in the process, or who disagree with the outcome of the process to opt out of the decision.

As it stands, I have no option as a shareholder besides selling. If the company sees it in its interest to support the democrats, the republicans or the Libertarians, I have to go along and so does MY money. As a part owner, I want to be consulted before my money is spent to pay for a political agenda I do not agree with.

In the end, lets look at why these laws are being put into place. The effort is being made to prevent a major contributor to one party from making their voice heard. What is good for the goose is good for the gander.
1.10.2007 5:53pm
r78:
EV

So this case is about saving the 5% of the people who pay agency fees about $25 each year out of the $300 in total agency fees that they pay?

You don't see this as any sort of attempt to limit political advocacy by unions? That is just an unintentional byproduct of the quest to save $25 bucks a year for some people?
1.10.2007 5:55pm
dejapooh (mail):
The union I belong to has over 45,000 members (in fact, it looks as if we will be striking soon). If I accept your 5% ratio, that would mean over 2250 members would have to be contacted yearly. There would be an additional expense involved in finding out if those members opt in. By allowing them to opt out, they can take responsibility for their own action and not force the members of the union to take up the expense to chase them down. Further, if they do Opt in, why should I have to chase them down every year to make sure they still want to be included?
1.10.2007 5:59pm
Byomtov (mail):
you don't have to own shares in any given company,

This is much oversimplified. If you own a mutual fund or have indirect ownership through a pension plan you have no way of knowing what companies you own shares in, and no way of selling them. Many more households in the US own shares this way than directly.

Even if you own shares directly there are costs involved in selling. So it is a bit glib to say, "Just sell the shares."
1.10.2007 6:01pm
Eugene Volokh (www):
r78: Different people who back the law may well have had plenty of different motivations. I (as a scholar, not as a lawyer) am less interested in the motivations and more in what rights the union ought to have.

My view is that the union should be seen as having a First Amendment right to spend its members' money, but not a First Amendment right to spend nonmembers' money. (My view, borne out by the facts of at least this case, is also that taking away 5% of the union's revenues will not "cripple the ability of unions to fund their political advocacy," the factual claim to which I was responding.)

dejapooh: If you don't "accept my 5% ratio," you should take it up with the Washington Supreme Court, not me; the ratio is drawn from that court's opinion. And if the union doesn't want the expense of contacting all the nonmembers, why doesn't it do what the ACLU, the NRA, and others do -- fund its political advocacy only with its members' speech?
1.10.2007 6:07pm
Houston Lawyer:
My understanding is that unions are not generally honoring their obligation to allow members to opt out of paying dues used for political purposes. Until recent reporting requirements were enacted, many unions regularly falsely claimed that they weren't spending any of their money on political causes.

I'm all for a law requiring a shareholder vote on corporations spending money on political matters. What I'd really like is a prohibition on corporations making charitable gifts. If an individual wants to give to charity, he should give his own money.

Can you imagine the conflicts of interest that would show up if charitable giving by public corporations were as closely monitored as executive pay?
1.10.2007 6:11pm
Pol Mordreth (mail):
<blockquote>
If I accept your 5% ratio, that would mean over 2250 members would have to be contacted yearly. There would be an additional expense involved in finding out if those members opt in. By allowing them to opt out, they can take responsibility for their own action and not force the members of the union to take up the expense to chase them down. Further, if they do Opt in, why should I have to chase them down every year to make sure they still want to be included?
</blockquote>


Remember, we are only talking about <b>non-members</b> who are forced to pay union dues as a condition of employment. This makes the union accountable to those people who have no other voice in the way the union is run.
1.10.2007 6:41pm
Steve:
My view is that the union should be seen as having a First Amendment right to spend its members' money, but not a First Amendment right to spend nonmembers' money.

As a pro-union guy, I think this is a pretty good deal for the unions and they should be happy with it.

As for the stockholder analogy, while there's an argument, one obvious risk is the possibility that people may buy stock simply to obtain a heckler's veto. However, a disclosure obligation might be a reasonable idea.
1.10.2007 6:51pm
Salaryman (mail):
I'm all for laws requiring corporations to disclose their spending on political matters (and for all I know on this subject -- which is nothing -- such laws may already exist).

I am not sure, though, why any shareholder "vote" other than the votes already possessed by any shareholder (including the "vote" exercised by selling stock if you disagree with what the corporation is doing) is necessary. If I don't like what a corporation is spending its (my) money on, it's no great burden to sell my shares in that company and buy shares in another company whose political activities I like better.
1.10.2007 6:55pm
Brooks Lyman (mail):
The problem with most union political spending today is that it is spent pushing candidates and issues (such as gun control, abortion, etc.) that have nothing to do with the Union's ostensible reason for existence - collective bargaining to improve the lot of it's members in the workplace. A great many union members do not approve of their union's political agenda, but figure it's not worth the hassle to fight it. That doesn't mean it's right for the unions to spend political money for non-union-related issues....

As for businesses giving money to political parties and candidates, it was my understanding that at least at the federal level (and also here in Massachusetts) this was forbidden, and that political contributuons had to be funded from the pockets of individual company officers and employees, not the company coffers. This is sometimes done in an organized way through a Political Action Committee (PAC). If I am incorrect about this, please straighten me out as it's an important issue. I don't have much use for such "Campaign Reform" laws as McCain-Feingold, but the elimination of direct corporate contributions does seem sensible.
1.10.2007 6:57pm
cl:
I seem to be missing something here. If non-members are only paying agency fees, and those agency fees are only supposed to cover the cost of collective bargaining, why would there ever be money left over for political uses, and how could the union ever justify spending the money on politics when the premise is that the funds are for bargaining purposes?
1.10.2007 7:03pm
Public_Defender (mail):
SOrry, that was a bit unclear -- you don't have to own shares in any given company, period, with the narrow exception I noted. There's no coercion invovled. Unions typically require that all employees in a given job be union members, paying union dues.
This is wrong. No one has to join a union. If you don't like the fact that an employer has a union shop, you don't have to work there.

It's funny how libertarians speak of employment at will when an employer unilaterally imposes terms on employees, but forget that when an employer negotiates terms with a majority of employees.
1.10.2007 7:06pm
Don Miller (mail):

The union I belong to has over 45,000 members (in fact, it looks as if we will be striking soon). If I accept your 5% ratio, that would mean over 2250 members would have to be contacted yearly. There would be an additional expense involved in finding out if those members opt in. By allowing them to opt out, they can take responsibility for their own action and not force the members of the union to take up the expense to chase them down. Further, if they do Opt in, why should I have to chase them down every year to make sure they still want to be included?



Some of this was covered in the oral arguments. The WEA has a PAC that they contact union members to opt-in to now. The same process that they use for the opt-in for PAC contributions could reasonably be used to have opt-ins for non-members as well.

As far as contacting them every year, I doubt that will be required. I could support an interpetation that says once someone opts-in for the political activity, they are considered opt-in until such time they take an affirmative action to opt-out.

One thing that struck me is the union lawyers repeated use of the term "our money". The union was taking the position that any fees paid belonged to the union and was theirs to decided what to do with. It isn't the union's money if they are going to use it for purposes that don't meet the statuatory requirements placed on its use. If they don't spend it in a legally approved manner, the money still belongs to the person that paid it. Kind of like taxes, if I pay to much, you have to give some of it back to me.
1.10.2007 7:11pm
JerryW (mail):
It would seem to me the the real potential problem facing a union is if the law were interpreted that every member would have to sign an "opt-in" in order for the union to spend their dues on political contributions or political activity. They probably fear that a substantial minority if not a majority of members would rather not have their money spent that way even if they agreed with the position. The results would be similar to voters wanting services but voting no on taxes.
1.10.2007 7:14pm
JerryW (mail):

Public_Defender

This is wrong. No one has to join a union. If you don't like the fact that an employer has a union shop, you don't have to work there.


If I am interpreting you correctly that would mean if one didn't want to join a union you couldn't teach anywhere in the entire State of NJ. What does one do when the whole State has a union shop?
1.10.2007 7:24pm
Shelby (mail):
JerryW:
The results would be similar to voters wanting services but voting no on taxes.
No, the analogy is with voters who oppose taxes for services only their neighbors want. (Though even then a majority or supermajority of voters can impose a tax; unanimity is not required.)

Re NJ: Presumably you could teach at a private school, but I agree that's a severe restriction.
1.10.2007 7:36pm
Hattio (mail):
JerryW,
I'll second what Shelby says, you teach at a private school, or move. But I seriously doubt that the State of NJ contracts on a statewide basis. Now, each school district may contract and include a union dues provision, but I fail to see how that would be any different than anything else one wants to convince a local government to do. Get enough people to care about it, and you can convince your local school district to contract with teachers individually...good luck.
1.10.2007 8:00pm
eric (mail):
And if the union doesn't want the expense of contacting all the nonmembers, why doesn't it do what the ACLU, the NRA, and others do -- fund its political advocacy only with its members' speech?

I understand Prof. Volokh's point here and it is well taken. However, the cynical answer is that if it is easier to opt-out by this 5% of nonmembers, others may choose to opt-out as well. Even if the whole process was a wash monetarily, it still keeps people in the union who might opt-out otherwise. It is coercive and I find it a little disgusting. The idea that the purpose of the suit was to cripple the union is only supported if you accept the premise that if the state chooses to not subsidize the union's political speech through forced contributions the union will be crippled because people will not contribute to their political activities voluntarily.
1.10.2007 8:15pm
eric (mail):
clI seem to be missing something here. If non-members are only paying agency fees, You are missing that pursuant to Washington statute the agency fees are the same as union dues.
1.10.2007 8:16pm
eric (mail):
It's funny how libertarians speak of employment at will when an employer unilaterally imposes terms on employees, but forget that when an employer negotiates terms with a majority of employees.

If you want to be a teacher in Washington, at least at a public school, then you have to join the union. Teachers generally have to work for the state. Your complaint would have more merit if there was competition in public education.
1.10.2007 8:19pm
nc3274:
Prof. Volokh:

You haven't addressed the analogies to corporate political speech (including lobbying) and shareholder opt-out rights. (Perhaps you are representing someone in litigation over this, which makes silence understandable.)

The "compulsion" argument seems strained. On one level, I am not compelled to pay agency fees (I can just get another job in a nonunion field) in the same way that I am not compelled to participate in the US public equity markets (buy bonds or invest overseas). That said, Am1 is all about (made-up) balancing, so maybe a nonmember's rights are more directly impinged by an agency fee than a shareholder's rights are directed by corporate speech because of the personal cost of finding another job.

Clearly the analogy is not directly applicable to the case (the question is more of an Abood/Hudson type in which the shareholder has a right to opt out). Nevertheless, I am curious as to your reaction.

Second question: Assuming Washington prevails, do you think an opt-in rule such as Section 760 is constitutionally required, as opposed to merely permissible?
1.10.2007 8:20pm
Public_Defender (mail):
If you want to be a teacher in Washington, at least at a public school, then you have to join the union. Teachers generally have to work for the state. Your complaint would have more merit if there was competition in public education.
But you don't have to be 1) a teacher; 2) a teacher in Washington; or 3) a teacher in Washington public schools.

Those are all choices. No one is compelled to do any of them.
1.10.2007 8:41pm
Public_Defender (mail):
If you want to be a teacher in Washington, at least at a public school, then you have to join the union. Teachers generally have to work for the state. Your complaint would have more merit if there was competition in public education.

Also, many public employees (and a few private ones) are "compelled" to contribute to a pension plan as a condition of employment. That "coerced" money goes to corporate stock. Under your theory, shouldn't those corporations be forced to get the permission of the employees before spending the employees' "coerced" money on political causes?
1.10.2007 8:48pm
Byomtov (mail):
If I don't like what a corporation is spending its (my) money on, it's no great burden to sell my shares in that company and buy shares in another company whose political activities I like better.

Actually, it is. See my comment above.
1.10.2007 9:22pm
Pol Mordreth (mail):
Public Defender,
You seem to be missing one (i feel) significant point. These employees who refused to 'go along to get along' and just join the union, have already made a (semi) political statement that they don't agree with the union on various issues. They still have to pay the full amount, and they get no benefits or protection from the union. The collective bargaining agreement doesn't apply, except for the wage scale. they are 'at-will' employees, but the state allows the union to extort their fee in exchange for a job. I dont feel that that rule in itself is right or fair, so of course I see this decision as a step (albeit small) in the right direction.
1.10.2007 9:28pm
nc3274:
To the corporate point raised by many (incl. me): I just noticed in the argument transcript (22-23) that Clement says the argument about disparate treatment was waived. To those following the case--really? How can that have happened?
1.10.2007 9:28pm
Ken Arromdee:
But you don't have to be 1) a teacher; 2) a teacher in Washington; or 3) a teacher in Washington public schools.

Those are all choices. No one is compelled to do any of them.


But they are fewer, and worse, choices than you'd have in the absence of government interference in the market (i.e. creating a public school system funded by taxes and then making it a union shop).

I suspect your point is that having only bad choices is coercive all by itself. But that isn't really the situation; the problem isn't that you only have bad choices, it's that the government was actively responsible in eliminating the good ones.
1.10.2007 9:40pm
Dick King:
The objections of union hassle or expense don't impress me. The unions don't want to ask the question because they don't expect to like the answers they will get, not because asking the question costs serious money.

Help me out ... why is requiring opt-in, even for members, so onerous to the union? Surely there are routine papers each member must fill out every year for necessary purposes, and these papers must be handled already. Don't these unions hold elections, for example? Don't members get to choose how their pension fund is invested? Don't they have to confirm members' contact information now and again? Certainly the union can enclose an additional bar-coded card that has two SAT-style bubbles to fill in -- "yes, I want to contribute $23.57 to the political fund" and "no, I don't ...".

In this day and age of laser printers and Scantrons, once the union buys the infrastructure from a supplier that will arise to meet the need or from the AFL-CIO, it'll be maybe five cents per union member.

However, it would not surprise me to here that each union member already has to log into and fill out an online form once a year for other union purposes in any major union. Then the cost of opt-in to the union would be the cost of modifying a program that they probably get from an applications vendor who will add this as a feature within weeks.

-dk
1.10.2007 9:44pm
arbitraryaardvark (mail) (www):
I wonder why the Wash court didn't insulate its holding by citing adequate and independent state grounds. (I'm probably for reversal myself, just wondering about strategy.)
But it's a low priority wondering so I havent actually read the opinions, arguments briefs and complaint. Maybe plaintiffs didn't raise the issue, or waived it at some stage.
1.10.2007 10:09pm
Justin (mail):
Question: If the federal government banned corporations from donating to ANY political donation on the basis of that such a donation would be a breach of their fiduciary duty to their stockholders, would the vote to uphold the law be 9-0?

If not, then someone's being activist. Let's see the Federalist Society get all in a huff about this one.
1.10.2007 10:36pm
Justin (mail):
Side note: The only way I would consider striking this law down would be on equal protection (14th Amendment) grounds. So I suppose I'd be in the majority too on this case. On the other hand, I'd also validate the law with my hypo restriction too.
1.10.2007 10:38pm
eric (mail):
But you don't have to be 1) a teacher; 2) a teacher in Washington; or 3) a teacher in Washington public schools.

Those are all choices. No one is compelled to do any of them.


Yeah, or you could just assert your rights under a state statute (Section 760) and teach where you wish. The only reason that the WEA collects these agency fees are for

Also, many public employees (and a few private ones) are "compelled" to contribute to a pension plan as a condition of employment. That "coerced" money goes to corporate stock. Under your theory, shouldn't those corporations be forced to get the permission of the employees before spending the employees' "coerced" money on political causes?

There was a statute that required them to do so. The Washington Supreme Court held that statute was an unconstitutional. There is no such statute regulating pension funds.
1.10.2007 10:54pm
r78:
The American Legislative Exchange Counsel is an industry front group. The pinkos over at common cause state that

While ALEC purports to be a 'good-government' group operating in the public interest, its sole mission is to advance special-interest legislation across the nation on behalf of its corporate sponsors and funders

I looked through their website and they promote all of the usual "conservative" tort-reform causes. Elimination of the political power of unions has been high on the agenda for such organizations for a long time because they recognize that unions (surprise) tend to promote interests of workers rather than corporations.

Mr. Volokh filed an amicus brief on behalf of ALEC in this matter and states

Different people who back the law may well have had plenty of different motivations. I (as a scholar, not as a lawyer) am less interested in the motivations and more in what rights the union ought to have.

It would seem that the "different motivations" for backing the law would pretty much be limited to either a) concern about peopling having to pay a portion of their agency fees (that amount to about $25) to Unions or b) attempting to chip away at the political power of unions.

I guess it is possible for someone to pursue litigation (or file an amicus brief) because they are motivated by an amount of money that will buy you two movie tickest and a bag of popcorn.

The other possibility is that the backers of this law and organizations like ALEC are primarily if not exclusively motivated by their usual pro big business motivations.

I don't have a problem with people or companies trying to get laws passed that served their interests. But I do wonder why some organizations work so hard to disguise their interests - or flat out lie about it.
1.10.2007 10:57pm
eric (mail):
The above should read "only reason that the WEA collects these agency fees is because the legislature allows them to do so pursuant to statute." Oops.
1.10.2007 10:59pm
eric (mail):
arbitraryaardvark

I wonder why the Wash court didn't insulate its holding by citing adequate and independent state grounds. (I'm probably for reversal myself, just wondering about strategy.)

Scalia questioned this in oral argument. He raised the issue that Washington state judges are elected. (Which just makes this more interesting). Maybe that is why.
1.10.2007 11:03pm
eric (mail):
r78

I guess it is possible for someone to pursue litigation (or file an amicus brief) because they are motivated by an amount of money that will buy you two movie tickest and a bag of popcorn.

The other possibility is that the backers of this law and organizations like ALEC are primarily if not exclusively motivated by their usual pro big business motivations.


ALEC's mission statement is on their website and makes their stance on unions clear. Questioning ALEC's motives are one thing, imputing them to Professor Volokh is another thing. The brief he filed only argued the federalism implications of affirmation. BTW, the mission statement on ALEC's website is clear. http://www.alec.org/about
1.10.2007 11:14pm
HLSbertarian (mail):

It would seem that the "different motivations" for backing the law would pretty much be limited to either a) concern about peopling having to pay a portion of their agency fees (that amount to about $25) to Unions or b) attempting to chip away at the political power of unions.


Yes, either that's true or principles and/or larger implications exist.

If I challenged a law requiring all Jews to pay $25 each to Catholics, would I just be doing it to "chip away at the political power" of Catholics?
1.10.2007 11:24pm
Michelle Dulak Thomson (mail):
r78,

I guess it is possible for someone to pursue litigation (or file an amicus brief) because they are motivated by an amount of money that will buy you two movie tickets and a bag of popcorn.

Hmmm. Would you find it equally implausible for someone to object to a poll tax of, oh, heck, let's say $25?

Yeah, inflammatory comparison, but to the point: The few people who pay the equivalent of union dues without joining the union in "union-shop" workplaces obviously object to joining the union on some sort of political grounds. The money is almost certainly not the issue. Not for the people opting out, that is; for the unions it's a huge one, because there do exist people to whom $25 is enough to bother about if it's not all that much bother, and a lot of them work in union shops, and a lot of them would just as soon spend that $25 on the political causes of their own choice (or, much more probably, something else).
1.10.2007 11:28pm
r78:
Eric


Questioning ALEC's motives are one thing, imputing them to Professor Volokh is another thing. The brief he filed only argued the federalism implications of affirmation.

I am not imputing their motives to him. I think their motives are quite clear. It is possible that Mr. Volokh undertook the filing of the amicus brief because he has a purely acadmic interest as a scholar.

It is fair though, to ask, if Mr. V is indifferent to the potential results of his action on the political power of unions or if he shares ALEC's goals and motivations.
1.11.2007 1:47am
HLSbertarian (mail):

It is fair though, to ask, if Mr. V is indifferent to the potential results of his action on the political power of unions or if he shares ALEC's goals and motivations.


r78: You keep accusing the proponents of ALEC's position of doing this to reduce the political power of unions. Are you against this position because you want to reduce the political power of people who opt-out of union membership?

Do you have any idea how silly and irrelevant this is? Why not just address the measure on the merits instead?

Women's suffrage reduced the political power of men -- what can that possibly tell us about the propriety of granting women the vote?
1.11.2007 2:00am
Public_Defender (mail):
There was a statute that required them to do so. The Washington Supreme Court held that statute was an unconstitutional. There is no such statute regulating pension funds.

If you were really concerned with "coerced" giving to politics, there should be. But the purpose of the law is not to stop "coerced" giving. The purpose is to hurt a group conservatives don't like.

I agree that the law is probably constitutional, but it's a lot harder to defend as a matter of policy. And much of the rhetoric in favor of it is just baloney.

I suspect your point is that having only bad choices is coercive all by itself. But that isn't really the situation; the problem isn't that you only have bad choices, it's that the government was actively responsible in eliminating the good ones.

Have private schools really been "eliminat[ed]" in Washington state? I suspect that you exaggerate. Even if that were true, millions of Americans have managed to find jobs outside the Washington state public school system. How bad can the alternative choices really be?
1.11.2007 4:22am
David M. Nieporent (www):
If you were really concerned with "coerced" giving to politics, there should be. But the purpose of the law is not to stop "coerced" giving. The purpose is to hurt a group conservatives don't like.
No, the purpose of the law, and the effect of the law, is to stop coerced giving. The law passed via public vote overwhelmingly in the liberal state of Washington. Perhaps you might want to rethink that argument, which is essentially ad hominem anyway.
I agree that the law is probably constitutional, but it's a lot harder to defend as a matter of policy. And much of the rhetoric in favor of it is just baloney.
The government grants a particular private organization the power to take money from people who aren't even members of the organization. What exactly is "hard to defend" about the notion that it has to ask these people permission before it uses their money to promote its private political agenda? (As the Supreme Court noted, it may be hard to defend on the "integrity of elections" premise -- but it's easy to defend on the first amendment premise.) All this law does is change the default from opt-out to opt-in. What's "hard to defend" about that?

Have private schools really been "eliminat[ed]" in Washington state? I suspect that you exaggerate. Even if that were true, millions of Americans have managed to find jobs outside the Washington state public school system. How bad can the alternative choices really be?
This little sub-discussion appears to treat this law as if it applied only to teachers' unions; in fact, it applies to all unionized jobs.
1.11.2007 6:18am
JosephSlater (mail):
(1) The "union shop" is illegal everywhere. Agency fees are the most that can be charged anywhere in the U.S.

(2) The purpose of agency fees is to avoid the free rider problem. The idea that "political" expenditures have nothing to do with the wages, hours, and working conditions of employees is at least somewhat naive in the private sector (compare Clinton and Bush NLRB rulings), but it's entirely naive in the public sector, where politicians are the employers. It's the law that political expenditures are not related to a union's representation functions, but let's not pretend that rule makes a lot of sense.

(3) Agency fees are charged in situations (i) where the union has majority support of employees, and (ii) the union and employer have negotiated a contract authorizing agency fees.

(4) Why is the agency fee issue the ONLY issue that makes libertarians and conservatives forget their usual, "if an employee doesn't like the way a workplace is run, they can quit" position? If I run Joe's Widget's, I can require all my employees to become members of a zoo or (in most places) one particular party as a condition of employment (I know that's a private sector example, but conservatives applaud the analogous "Beck" rule in the private sector).

(5) To pretend that the goal of this legilsation is something other than to weaken the ability of unions to do politics is extraordinarily naive. It's not just the loss of union funds -- much more important is the cost of administration.

I join the prediction that the union side will lose this case, and I'm not actually sure I think the Washington law is *unconsitutional*, but I certainly think it's bad public policy.
1.11.2007 10:32am
r78:
HLSbertarian - you are just clueless

Do you have any idea how silly and irrelevant this is? Why not just address the measure on the merits instead?

The expressed motivation of ALEC is to do the bidding of its corporate paymasters and reduce the power of unions. I haven't followed this closely, but I beleive that the lawyers who represented the named plaintiff were a similar front for some big business astro-turf organization.

So this action and the appeal are about nothing BUT reducing or eliminating the political power of unions. That is what this is all about.

Your absurd suggestion that we only talk about the false merits of this are no different than insisting that Yick Wo is really about the safety of brick versus wood laundry facilities.
1.11.2007 12:15pm
HLSbertarian (mail):

So this action and the appeal are about nothing BUT reducing or eliminating the political power of unions. That is what this is all about.

Your absurd suggestion that we only talk about the false merits of this are no different than insisting that Yick Wo is really about the safety of brick versus wood laundry facilities.


r78: If you're going to call me "clueless," I'd appreciate some explanation of which clues I'm lacking.

More to the point, please answer my hypo: The 19th Amendment reduced the political power of men. I'm sure many of it's supporters wanted to reduce the political power of men. What in the world does that tell us about the propriety of the measure? Umm, nothing.

Why is my suggestion that you address the merits of the claim "absurd," and why are the merits "false," in light of the fact that a unanimous court is likely to hold otherwise?

Your reference to Yick Wo is completely inapposite. Yick Wo didn't rest on the emptiness of the wood/brick difference. Yick Wo was an as-applied challenge based on actual discrimination. Without the actual discrimination, the Yick Wo court (and today's court) would have to address the merits of the government's distinction.
1.11.2007 12:38pm
Andy Freeman (mail):
I'm confused.

It's wrong to allow people to opt out of contributing to political spending by a union because there's no analogous law wrt corporate political spending? That's the argument?

Isn't the appropriate response to try to get the analogous law passed?
1.11.2007 8:51pm
DRB (mail):
Andy Freeman,

I think you've hit the nail on the head.

Personally, I'm amazed that unions can actually force someone to fork over money even if that person isn't a member. Making a union get permission to spend a non-member's money on political activity strikes me as a rather trivial restriction on their ability to extort money from people who don't want to be part of their club.
1.11.2007 9:44pm
Justin (mail):
Andy, the problem is the analogeous law would be considered UNCONSTITUTIONAL. And regardless, if campaign finance restrictions are designed to defund one party, then we're talking about serious corruption issues.
1.12.2007 12:59am
eric (mail):
Andy, the problem is the analogeous law would be considered UNCONSTITUTIONAL. And regardless, if campaign finance restrictions are designed to defund one party, then we're talking about serious corruption issues.

So you are entirely willing to avoid the serious corruption issues that are created by a legislature dominated by one political party passing laws that require employees to give to a union that gives money to that political party? How about the Supreme Court of that State composed of elected judges invalidating the law as unconstitutional?

By the way, this was a ballot initiative. So the voters of Washington are seriously corrupt?

As far as the corporate spending objection that keeps getting raised, the corporation has a first amendment interest in disposing of its funds. Whether or not shareholders should be able to prevent this as a matter of fiduciary duty is a different question. The real target in such a situation would be the pension fund law itself, because that is the government action. A pension fund law might meet the narrowly tailored to advanced the government interest in providing for retired government employees or it may not. Another problem is quantifying the individual employees contribution to the political cause in that situation. The situation might lead to any one employee contributing <.01 cents to the political causes of Haliburtion, et al. Then what do you do? There has to be a workable solution.

As far as the "they can always quit their job" objection. So what? They have chosen a different method. The law is there, the WEA, despite an NPR report that flat out lied about this, stipulated to violating the law.
1.12.2007 2:32am
eric (mail):
As far as the political side of this, the WEA may be shooting theirself in the foot. They are likely to lose a lot of members either way. In they win, which is highly unlikely, there may be some political drive to repeal the union fee statute itself.
1.12.2007 2:36am
Public_Defender (mail):
No, the purpose of the law, and the effect of the law, is to stop coerced giving. The law passed via public vote overwhelmingly in the liberal state of Washington. Perhaps you might want to rethink that argument, which is essentially ad hominem anyway.

It is fair to argue that the law would underinclusive if the real purpose were to stop "coercive" giving. Instead, it just picked on one side.

The government grants a particular private organization the power to take money from people who aren't even members of the organization.

Actually, it's the union contract that does that. The libertarian response would be that anyone who didn't like the union contract could find a job elsewhere.

This little sub-discussion appears to treat this law as if it applied only to teachers' unions; in fact, it applies to all unionized jobs.

Absolutely correct. And private sector unions make my point even more clearly. A group of employees shoudl be allowed, by majority vote, to negotiate conditions of employment as well as financial matters. If the minority doesn't like the contract (for instance, the dues), they can choose a different place to work.

. . . but the state allows the union to extort their fee in exchange for a job.

It's no more extortion than an employer imposing a dress code. If you don't like the rules at a given workplace, a libertarian would tell you to find another workplace. That's not "coercion," that's the market.
1.12.2007 4:20am
HLSbertarian (mail):

Actually, it's the union contract that does that. The libertarian response would be that anyone who didn't like the union contract could find a job elsewhere.
[...]
It's no more extortion than an employer imposing a dress code. If you don't like the rules at a given workplace, a libertarian would tell you to find another workplace. That's not "coercion," that's the market.


That's all well and good, and I'd agree with you if not for the fact that the gov't is involved through the Wagner Act,the NLRB, state law, etc. Unions can bring the coercive power to bear on employers - that's not the market anymore.
1.12.2007 8:53am
DRB (mail):
A group of employees shoudl be allowed, by majority vote, to negotiate conditions of employment as well as financial matters. If the minority doesn't like the contract (for instance, the dues), they can choose a different place to work.

The "libertarian response" to this argument would be that the minority should negotiate their own contract with the employer if they don't like what the majority came up with. The notion that they should just live with what the majority agreed to or leave isn't libertarian, it's socialist/collectivist.

It's no more extortion than an employer imposing a dress code. If you don't like the rules at a given workplace, a libertarian would tell you to find another workplace. That's not "coercion," that's the market.

Actually, a libertarian would tell you that if you don't like the rules your employer sets at the workplace, go find another workplace. A libertarian would scoff at the notion that your fellow employees get to force rules on you in the workplace and your only option is to accept them or leave. This notion is again not libertarian, it's socialist/collectivist.

Now if you and some of your fellow employees voluntarily agree that e.g. you're all going to wear suits and ties to work, that's entirely up to you. But a libertarian would say that you shouldn't be able to force your voluntary agreement on other employees who don't want to participate. You want to tell employees what to do, start your own business.

All that said, I don't object to you making arguments that your fellow employees should be able to force rules on you in the workplace. I do object to you calling those arguments libertarian when they are in fact collectivist.
1.12.2007 11:03am
JosephSlater (mail):
DRB perhaps inadvertently gets to the meat of it. Why should it matter, to a libertarian, that a majority of co-workers are helping to establish rules along with the employer? Remember, agency fee payer rules are established through contracts signed by BOTH the employer and employees. So why would a unilaterally-imposed rule from an employer be LESS offensive than a rule created by employers and the representative of a majority of employees. Are libertarians offended by the presence of some additional democractic input?

HLS Libertarian:

I don't think your point that "the government is involved" via the NLRA works for private sector labor relations. The NLRA doesn't set the terms of contracts between unions and employers; indeed, it doesn't even require that employers and unions form contracts. For the purposes of this isse -- contracts with agency fee provisions -- the NLRA really just shifts contract enforcement mechanisms from state to federal bodies. Contracts between private parties do not involve "state action" triggering constitutional protections just because some level of government can enforce the contract.

Of course, *government* employment triggers constitutional concerns. But the NLRA doesn't cover government employees.
1.12.2007 12:55pm
DRB (mail):
So why would a unilaterally-imposed rule from an employer be LESS offensive than a rule created by employers and the representative of a majority of employees. Are libertarians offended by the presence of some additional democractic input?

In private contracts? Of course they are. In general, libertarians believe that contracts between an employer and an individual employee should not be the subject of "additional democratic input" from the individual's coworkers unless he specifically invites them in. Especially because the nature of that "additional democratic input" appears to be that the employee has to fork money over to his coworkers' special club whether he wants to join it or not.

If an employee wants to voluntarily form a club with some coworkers to negotiate a contract, and fund the club with member contributions, fine. What libertarians would oppose (among other things) is forcing employees to fund the club even if they don't want to join.
1.12.2007 2:40pm
JosephSlater (mail):
DRB:

The employees have formed a club which the majority of employees have decided is to their benefit, and funds can be required to avoid free-rider problems. If a particular employee doesn't see the benefits and doesn't want to be in the club, he or she can seek work elsewhere. Again, that's the standard conservative/libertarian reply to all other "employee doesn't like the work condition" issues. And again, you don't really address the point that agency fees can only be required if the EMPLOYER agrees to require them in a contract.

Thus, I'm still not sure why you are worried that the law allows employers to agree with a majority of workers to require agency fees, but apparently not worried about the fact that (in almost all private employment), the law allows employers unilaterally to require membership in a political party, zoo, equestrian association, and/or etc., as a condition of employment.

So, even given that you're willing to privilege unrestricted property rights of employers over democracy in the workplace as a general matter (a libertarian position that I don't buy), I still don't think your answer is consistent.
1.12.2007 2:54pm
DRB (mail):
The employees have formed a club which the majority of employees have decided is to their benefit, and funds can be required to avoid free-rider problems.

I reject this argument. There is no reason an employee who is not a member of the club should share in its benefits. If an employer unilaterally decides to give non-members the same employment benefits as members, I suppose that is the employer's prerogative. But in general the non-member employees should negotiate their own contracts with the employer with no interference, positive or negative, from the club. Regardless, the club should should not be able to compel non-members to obey the club's rules or to fork over money.

Once again, "live with it or leave", in this context, is a socialist/collectivist argument and not a libertarian one.

Thus, I'm still not sure why you are worried that the law allows employers to agree with a majority of workers to require agency fees, but apparently not worried about the fact that (in almost all private employment), the law allows employers unilaterally to require membership in a political party, zoo, equestrian association, and/or etc., as a condition of employment.

Actually, I think that's unreasonable. Employers generally shouldn't be allowed to compel membership in third party organizations as a condition of employment, much as they generally shouldn't be allowed to compel employees to have sex with them as a condition of employment. Both constitute infringements on individual liberty that I think a lot of libertarians would reject despite their high regard for the sanctity of the private contract.

Employers should certainly be able to use membership in third party organizations as inputs into their hiring decision (e.g. "I'll give this guy a job because he's a Freemason and so am I"). But contractually stipulating to membership strikes me as improper for exactly the reason that we're discussing -- some third party could compel the employer to make membership compulsory for his employees.

And by the way:

I'm still not sure why you are worried that[...]but apparently not worried about[...]

Please don't tell me what I am and am not worried about. I made two posts on this thread -- you couldn't possibly know what I'm worried about given such limited information. Thanks.
1.12.2007 4:52pm
JosephSlater (mail):
DRB:

I'm intrigued that you oppose the concept that (private sector) employers can fire employees for not belonging to this or that organization. That shows a fundamental disagreement with the principle of employment at will. I personally don't like employment at will, but I thought it was fairly basic to libertarian and conservative thought, and basic to your argument.

In some ways, then, it's internally consistent for you to oppose both employers and employers/unions being able to require membership in groups. Of course, unions are different in that they are formed by employees and for employees to equalize bargaining power at the workplace.

The idea that unionized employees could get the benefits of union representation while other, similarly situated, non-union employees don't get those benefits is sometimes bandied about in labor relations debates. IMHO, the minuses and difficulties (for employers at least as much as workers) outweigh the plusses. Reasonable minds could differ, but the NLRA (and public sector labor laws, which are modeled on the NLRA) would have to be scrapped and completely re-written for that to happen, as those laws are all based on the principle of majority representation. And discussions of the law at issue in this thread have to recognize that.

Note, for example, that under current law, in "right to work" jurisdictions in which no member of a union bargainng unit has to pay any dues, current law requires that non-union members get all the benefits of union representation, even though they aren't paying for them.

Finally, as to the "worried about, not worried about" language, I thought that was a relatively benign way of highlighting what I thought was an inconsistency. But I apologize for any offense taken.
1.12.2007 5:12pm
JosephSlater (mail):
P.S. I forgot to add, "live with it or leave it" as to employment is absolutely a libertarian/"free market" principle. You may dissent from that principle in the particular case of an employer requiring certain things as a condition of employment, but that's NOT the traditional libertarian position (about, say, workplace health and safety, discrimination, wages and hours, or any of a host of other employment issues).
1.12.2007 5:15pm
DRB (mail):
JS, I think all but the most radical libertarians support restrictions on the employment at will doctrine. Requiring your employees to have sex with you in return for continued employment is an obvious example; there are certainly others. (Though even the sex example has its own exceptions -- e.g. I don't see it as unreasonable for an employer in the porn industry to require sex from his on-screen talent. That's kind of the nature of the business.) Different libertarians will of course tend to believe in different restrictions, depending on where they see the greatest infringements on liberty.

Reasonable minds could differ, but the NLRA (and public sector labor laws, which are modeled on the NLRA) would have to be scrapped and completely re-written for that to happen, as those laws are all based on the principle of majority representation. And discussions of the law at issue in this thread have to recognize that.

I was under the impression that we had stepped out of the discussion of the law at issue in this thread; in theory (and in practice) I have no objection to the wholesale rewriting of current labor laws.

As for the law under discussion in this thread, requiring a union to ask non-members to opt-in rather than opt-out of political spending strikes me as a trivial restriction on the union's completely improper ability to take money from people who aren't members.

..."live with it or leave it" as to employment is absolutely a libertarian/"free market" principle.

Frequently, but not absolutely, as our discussion has demonstrated. E.g. "additional democratic input" into a private employment contract is not something a libertarian would feel they have to live with. Leaving of course remains an option in such a situaiton, but a libertarian would object to "living with" such an arrangement purely on the grounds of individual liberty.
1.12.2007 5:43pm
JosephSlater (mail):
DRB:

I think we understand each other, even if we're not in complete agreement (especially re democratic input). My main point was that at least often, libertarians object to laws allowing employers and unions together to require union dues -- when there's a pretty obvious, traditional Econ 101 free-rider argument supporting the ability to do that -- yet don't object to what seem to me more onerous restrictions that employers can unilaterally make a condition of employment.

As to what current law is, I mainly brought it up because if you're going to argue that it's "completely improper" to take money from non-members, you have to understand that the current context is that unions have a legal obligation to give full representation to members of union bargaining units that aren't union members. Hence the free-rider issue.

We'll see how onerous this Washington law turns out to be (assuming the predictions of everyone, including me, that the law will be upheld turn out to be accurate). I don't think it's The Worst Thing Ever in labor law. But we should be clear that the folks pushing this bill cared much more about limiting the political activities of unions than they did about the rights of individual workers.
1.12.2007 6:14pm
SG:
But we should be clear that the folks pushing this bill cared much more about limiting the political activities of unions than they did about the rights of individual workers.


The two groups are not disjoint. It's the individual workers that want to limit the political activities of the union, at least with their money.
1.12.2007 7:03pm
JosephSlater (mail):
SG:

So you agree that the goal of the bill is to inhibit union's from engaging in political activity?
1.13.2007 11:20am
JosephSlater (mail):
Argh: "unions" not "union's". . . .
1.13.2007 11:21am
SG:
The whole premise of the bill is that unions engage in political activites that non-menbers who are forced to contribute to the union don't like. (I would guess that the union's political activities are probably the largest reason why people don't join the union in the first place). I'm sure the nonmembers would be happier if the union didn't engage in political activity at all. Failing that, they don't want to be compelled to contribute to political activity they disagree with. It seems emminently reasonable.

I'm fairly confident that it unions consistently advocated for political positions that you disagreed with you'd see no problem with this bill.
1.13.2007 12:01pm