SCOTUS Derails the Democrats' SEIU Gravy Train

Some days, things just work out right.  Last Thursday was one of those days for conservatives.  It was a day of reckoning for the Service Employees International Union and the Democratic politicians they use our tax dollars to buy and pay for.  And it was a day the United States Supreme Court stood strong for our First Amendment rights.  Justice Alito's majority opinion in Knox v. SEIU met the uncompromising standard set by Citizens United and Arizona Christian School Tuition Organization v. Winn.  It not only reasserted the constitutional protection of free speech against union power, but also held that the process by which protection against compelled speech is afforded must not itself become a burden.

A little background is in order.  Under California's agency shop law, public employees are not required to join a union to keep their jobs; however, non-members are assessed a percentage of the union's regular dues as a condition of employment.  The rationale is that since non-members enjoy the benefits of collective bargaining, they should bear their fair share of its costs.  To protect non-members' First Amendment rights, they are required to pay for only the percentage of total dues that covers those costs, not for the union's "political or ideological projects"[i].

In 2005, the California SEIU's political power was seriously threatened by two ballot initiatives.  Proposition 75 called for the union to obtain "affirmative consent" before imposing special assessments for political purposes.  That was meant to prevent union abuses, since under such an "opt-in" rule, no money can be taken without the express consent of the employee.  There would be no more "opt-out" chicanery such as "We'll take your money unless you tell us not to within thirty days," or a demand that the employee fill out some mind-boggling form to avoid being assessed.  Proposition 76 posed a different threat: it gave the governor power to cut spending by reducing public employee compensation.  To fund its $10-million political battle against these ballot propositions, the SEIU issued a special assessment demanding that all employees -- including non-members -- pony up the extra cash.

Unfortunately for the SEIU, not all non-members were obedient sheep.  Some not only complained; some workers took the union to court.  And they won.  The District Court issued a summary judgment in their favor based on the stark reality that there was only one purpose for the union's extraordinary spending, and that purpose was political[ii].  That might seem like a no-brainer; but right on cue, the high priests of social justice over at the Ninth Circuit reversed on appeal.  And then something really interesting happened: the employees petitioned the Supreme Court, the Court agreed to hear the case, and...the SEIU tried to dodge the constitutional bullet by refunding the assessment and claiming that since nobody was out a dime, the case was moot.  Close, but no cigar.  Alito wryly observed that "[s]uch postcertiorari maneuvers designed to insulate a decision from review by this Court must be viewed with a critical eye" because "a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed" [iii].

What happened instead was a well-deserved disaster for public employee unions and the Democratic Party they brag they own.  Predictably, Alito's opinion, joined by Chief Justice Roberts and Justices Scalia, Thomas, and Kennedy, held that the SEIU had violated non-members' First Amendment rights by forcing them to fund its political operations against their will.  That's bad for the SEIU, and it's bad for the Democrats, because it threatens the political alchemy lab where they turn tax dollars into public employee salaries, salaries into union dues, and union dues into lavish spending on Democratic campaigns.  But it gets worse.  Justices Sotomayor and Ginsburg broke ranks with the progressives, supporting the majority decision in a concurrence by Sotomayor.  Only Justices Breyer and Kagan toed the party line.

But there was far worse news still to come for the public employee unions and the Democratic Party.  The SEIU's brazen abuse of the "opt-out" system raised a question quite similar to the one posed by their attempt to moot the case by returning non-members' money:

Once it is recognized, as our cases have done, that a non-member cannot be forced to fund a union's political or ideological activities, what is the justification for putting the burden on the non-member to opt out of making such a payment?[iv]

This is not simply a matter of inconveniencing non-members.

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.[v]

The majority has now ventured where progressives refuse to tread.  It is not enough to give lip service to First Amendment rights; the processes by which those rights are protected must be adequate to the task.  There's really nothing new about this.  The opinion Alito quotes to support his argument, Teachers v. Hudson, was decided a quarter of a century ago (475 U. S. 292 [1986]).

[A] "union 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."[vi]

Make no mistake.  Thursday was a very bad day for the public employee unions and the Democratic Party.  How ironic that the SEIU's victory in its war against Proposition 75 has led to defeat not only in California, but in the entire United States.  And how appropriate that the SEIU's bad faith has become the poster child for the "opt-in" system of non-member exemptions.

Mr. Stewart is a freelance writer living in Texas.  His book Deconstructing Progressive Establishment Clause Dogma is a work in progress.  He can be reached at

[i] Knox v. SEIU, 567 U.S. _____ (2012), slip opinion at 2.

[ii] Id., at 5-6.

[iii] Id., at 6.

[iv] Id., at 11.

[v] Id., at 12.

[vi] Id.

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