It’s not been a good year for Big Labor. The Keystone XL pipeline got nixed. Wisconsin Gov. Scott Walker (R) survived the recall, and now the Supreme Court has gotten serious about the First Amendment.
In Knox v. SEIU, the Supreme Court considered whether the Service Employees International Union could force nonmembers, who hadn’t previously opted out of paying dues for political activities, to pay a special assessment for the union’s efforts to defeat two California referenda. Justice Samuel Alito, for the majority of five (Justices Ruth Bader Ginsburg and Sonia Sotomayor concurred in a separate opinion), held:
By authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate. The SEIU, however, asks us to go farther. It asks us to approve a procedure under which (a) a special assessment billed for use in electoral campaigns was assessed without providing anew opportunity for nonmembers to decide whether they wished to contribute to this effort and (b) nonmembers who previously opted out were nevertheless required to pay more than half of the special assessment even though the union had said that the purpose of the fund was to mount a political campaign and that it would not be used for ordinary union expenses. This aggressive use of power by the SEIU to collect fees from nonmembers is indefensible.
Alito suggested the court had already strained the limits of the First Amendment:
To respect the limits of the First Amendment, the union should have sent out a new notice allowing nonmembers to opt in to the special fee rather than requiring them to opt out. Our cases have tolerated a substantial impingement on First Amendment rights by allowing unions to impose an opt-out requirement at all. Even if this burden can be justified during the collection of regular dues on an annual basis, there is no way to justify the additional burden of imposing yet another opt-out requirement to collect special fees whenever the union desires.
It is somewhat shocking, I am sure, to average Americans that a union will pull such a stunt. But compulsion is the mainstay of organized unions these days. In trying to force members to pay for political causes they don’t like and in favoring card-check legislation (obviating the right of secret-ballot elections), Big Labor bosses only highlight the gap between their objectives and their members’ wishes.
Mitt Romney’s campaign sent out a statement responding to the ruling: “Once upon a time, it was unions that were protecting employee rights. Sadly, employees today must turn to the Supreme Court to protect them from those same unions. While President Obama continues to support policies like Card Check that would force employees into unions against their will, Governor Romney has laid out a comprehensive labor reform agenda that will restore power to workers and let them choose whether to unionize and whether to spend their hard-earned wages on union political campaigns.”
Look for more of this from Romney. He’s correctly assessed that, while Big Labor bosses aren’t going to support him, plenty of union workers will. In siding with the little guy against the union chiefs, Romney is also taking a swing against the president, who must pay deference to his Big Labor patrons.
Given the decline in unionization nationwide and the vote in Wisconsin, this is smart politics for Romney. He’s got popular opinion on his side. Moreover, coupled with Obama’s anti-First Amendment stance on Citizens United, the president’s bullying of the Supreme Court and his absurd invocation of executive privilege, the president has become quite the poster child for constitutional defiance. And if he is pulling all of this before an election, can you imagine what he’d try in a second term?