Symposium: Correcting the “historical accident” of opt-out requirements

David B. Rivkin, Jr., and Andrew M. Grossman practice appellate litigation in the Washington, D.C., office of Baker & Hostetler LLP. They filed an amicus brief in support of certiorari in Friedrichs v. California Teachers Association on behalf of the Cato Institute, where Mr. Grossman is an adjunct scholar.

Whatever the fate of mandatory “fair share” payments that nonmembers are often required to make to fund public-sector unions’ collective bargaining activities, Friedrichs will likely mark the end of requirements that dissenting workers take action to “opt out” of funding public-sector unions’ political and ideological activities, the subject of the second question that the Court agreed to consider. Although less prominent than the forced-payments issue, ending opt-out requirements would correct a serious anomaly in the Court’s First Amendment jurisprudence, one that facilitates tens of millions of dollars annually in union political spending of funds obtained through inertia, trickery, and coercion.

If everyone agrees that forcing public employees to subsidize a labor union’s political or ideological speech impinges their First Amendment rights – and the Court has been unanimous on that point for decades – then what possible justification is there for requiring workers who’ve declined to join the union to go through the arduous process of opting out from making such payments year after year? Put differently, why not allow workers who support a union’s political activities to opt in to funding them, rather than require dissenting workers to play a game of cat and mouse to stop the union from taking their money to fund ideological causes they likely oppose? We’ve never heard a compelling justification for the current “opt out” regime and, like the majority in Knox v. SEIU, suspect that there isn’t one.

Instead, as the Court recounted in Knox, “acceptance of the opt-out approach appears to have come about more as a historical accident than through the careful application of First Amendment principles.” In early cases, workers subject to the Railway Labor Act sought relief from being forced to fund unions’ political activities, and the Court assumed (the statute saying nothing one way or the other) that allowing them to affirmatively object to funding such expenditures would be sufficient to protect their rights. Without any reasoning or analysis, the Court in Abood further assumed that the opt-out approach discussed in those prior statutory cases was sufficient to remedy the First Amendment violation when a public employee is coerced into subsidizing political or ideological speech by the threat of loss of governmental employment.

But that was a dubious assumption, for both legal and practical reasons. As a legal matter, the opt-out approach plainly violates the cardinal rule that procedures involving compelled speech and association must be “carefully tailored to minimize the infringement” of First Amendment rights. Under the opt-out approach, dissenting workers bear the risk that, if they are unsuccessful in following the opt-out procedure reluctantly administered by the union, their money will be used to further political and ideological ends with which they do not agree. The labor union, whose constitutional rights are not at stake, bears no risk at all – by default, it gets the money.

As a practical matter, labor unions have not made it easy for workers to opt out of funding political activities. No union of which we’re aware presumes that workers who have declined to join it – and therefore presumably don’t support its political activities – wish to opt out from subsidizing those activities. Nor do unions presume that workers who opted out last year, the year before, etc., might wish to do so again this year – workers must go through the process of objecting every single year, except for where courts have mandated otherwise. Opt-out requests are typically permitted only during an annual “objection period,” and unions do the bare minimum required by law to publicize workers’ opt-out rights. Other materials provided by the union often attempt to sow confusion over opting out. For example, the California Teachers Union enrollment form gives the impression that teachers can join the union without funding its political activities; the relevant checkbox, however, only concerns whether a portion of dues will be allocated to the union’s political action committee. Forms used by other unions give workers the opportunity to opt out of relatively small PAC contributions and receive a refund. In either instance, workers still pay the full subsidy for the union’s own political activities. The point of this chicanery is to confuse workers into thinking that they’ve exercised their opt-out rights when they actually haven’t. And then there’s the intimidation and harassment often leveled against workers attempting to exercise their opt-out rights.

These difficulties arise from the inherent conflict of interest in requiring a labor union to administer the procedures for workers who object to funding its own activities. Of course the unions don’t want to make it easy to opt out. As a result, the courts have been forced to constantly police unions’ grudging administration of the opt-out process. It is strange, when you think about it, that workers’ First Amendment right to be free from compelled speech and association is at the mercy of the very organizations that the workers are seeking to resist.

These issues came to a head in Knox, a 2012 decision concerning a challenge by dissenting workers forced to pay into an “Emergency Temporary Assessment to Build a Political Fight–Back Fund” intended for politicking. Because “a special assessment billed for use in electoral campaigns” went beyond anything the Court had previously considered, it gave the opt-out issue a fresh look. Applying the general First Amendment principle that “individuals should not be compelled to subsidize private groups or private speech,” it held that a public-sector union imposing a special assessment or dues increase partway through the year may not exact any funds from nonmembers without their affirmative consent.

This affirmative consent, or “opt-in,” requirement drew criticism from Justice Sonia Sotomayor (in concurrence, joined by Justice Ruth Bader Ginsburg) and Justice Stephen Breyer (in dissent, joined by Justice Elena Kagan). Justice Sotomayor agreed that the union was constitutionally required to provide an additional notice to workers and opportunity to make their choice, but she faulted the majority for (in her view) reaching beyond those issues to hold that affirmative consent was required. Justice Breyer, in turn, argued that the union had reasonably complied with the Court’s precedents by reducing the special assessment charged to workers who had already objected by the proportion of total dues that it had spent on political activities in the previous year.

Notably, neither separate opinion offered any defense on the merits of requiring workers to opt out from subsidizing unions’ political speech. Although recognizing that the majority “cast serious doubt on longstanding precedent,” Justice Sotomayor made no attempt to address the validity or correctness of that precedent. Justice Breyer deemed the majority’s approach “particularly unfortunate” because its logic seems “to apply, not just to special assessments, but to ordinary yearly fee charges as well,” which means that “the opinion will play a central role in an ongoing, intense political debate” – one that he would have the Court avoid entirely. The most he ventured on the merits of the question was that an opt-in requirement might not do much good, because “the additional protection it provides primarily helps only those who are politically near neutral.”

But even that tepid objection falls apart under scrutiny. The reality is that the burden of opt-out requirements has artificially suppressed objections. According to the Bureau of Labor Statistics, thirty-three percent of state government workers and forty-six percent of local government workers are represented by labor unions. About eight percent of those workers have declined union membership – a prerequisite to opting out of paying political subsidies. Yet polls consistently report that about a quarter of state and local employees subject to collective-bargaining agreements identify themselves as Republicans, with another thirty percent or so identifying as independent. It is no secret that unions’ political expenditures overwhelmingly favor the Democratic Party and its candidates – for example, ninety-eight percent of the American Federation of Teachers’ donations go to Democrats. This means that, due to opt-out requirements, more than three million public-sector workers are paying to subsidize a political party that they have refused to join, with one million of those workers identifying as members of the opposing party.

So far as we’re aware, there isn’t any good argument in favor of requiring employees to bear the often-considerable burden of objecting so as to avoid paying into labor unions’ political coffers. But there is an honest one. In a moment of candor, a teachers’ union explained in litigation that it favors opt-out requirements because they allow unions to “take advantage of inertia on the part of would-be dissenters who fail to object affirmatively.” In fairness, one can certainly understand why labor unions would want to collude with state and local politicians to exact political funds from unwilling employees who may not know how to satisfy convoluted opt-out procedures or are reluctant to bear the burden of doing so.

But it’s more difficult to understand how such a scheme could ever withstand the careful application of First Amendment principles.