New 1st amendment case poses existential threat to public employee unions

On Access by Peter Scheer

Public employee unions face a new, and mortal, threat. It’s not the unfunded liability of union pension plans or municipal governments’ resort to bankruptcy to void union contracts. It’s not state initiatives to restrict collective bargaining rights or other outpourings of voter resentment. No, the new existential threat facing government unions comes from . . . the First Amendment.

In a scarcely-noticed lawsuit filed Monday in federal district court in Los Angeles, a conservative nonprofit, the Center for Individual Rights, claims that California’s system for collecting union dues from government employees abridges free speech safeguards by compelling employees to subsidize union political advocacy and activities with which they disagree.

On first look, the suit looks like a loser because the challenged union practices were upheld in a 20-year-old US Supreme Court decision, Abood v. Detroit Board of Education. Nonetheless, on second look, the suit has a very respectable chance of succeeding because of a 2012 Supreme Court decision, Knox v. SEIU, in which five justices said, in effect, that the Abood decision was a mistake. Also, the plaintiffs are represented by Jones Day, one of the biggest and best law firms in the country, which wouldn’t have taken the case unless prepared to litigate all the way to the nation’s highest court.

And if they prevail? Public employee unions, not just in California but across the country, would lose the bulk of their dues funding–and with it, the ability to wield decisive political influence in state and local governments everywhere. That is a big deal.

Non-management government employees in California, as in many states, are required to belong to a union, and pay union dues, whether they want to or not. However, employees can’t be forced to pay for union political activities–as opposed to union representation on pay, benefits, job security and like issues–because of first amendment protections against “forced association” with political viewpoints. The question is: how, practically-speaking, to enforce this right?

The Supreme Court in Abood approved a system that requires employees, if they don’t wish to pay for their union’s political activities, to “opt out”–meaning, they must pay all dues first, then apply to receive a prorated refund later. The theory of the lawsuit filed Monday, Friedrichs v. California Teachers Association, is that an opt out procedure is constitutionally defective because it compels employees to make a loan to the union for its political activities, and because even the unions’ supposedly nonpolitical activities–such as opposition to charter schools or support for higher taxes to pay for pension benefits–are fraught with political and ideological choices that are objectionable to some employees.

The lawsuit contends that the first amendment requires an “opt in” procedure. While it may seem trivial, the difference between opt out (where the default is that the union has all your money and you have to ask for a portion to be refunded) and opt in (where the default is that the union has to persuade you to give money to support its political activities) is the difference between public employee unions that are rich and powerful and unions that are poor and politically neutered.

Last year in the Knox case, the Supreme Court decided, 5-4, that the first amendment requires California government unions to use an opt-in dues collection procedure for special dues assessments needed to finance political campaigns. Justice Allito, writing for five justices, went out of his way to raise doubts about the Abood decision and, in effect, to invite a test case to overturn it. The Friedrichs v. California Teachers Association lawsuit is an RSVP to that invitation.

How will the unions respond? In 2012 California unions spent some $75 million to defeat a ballot initiative, Prop 32, that would have shifted California’s default from opt out to opt in. Now, consider that a successful Supreme Court challenge would yield the same result, not only in California but across the nation, and that it would be immune from legislative repeal. Organized labor, once it figures out what is happening, will treat this litigation like the existential threat that it is.–PETER SCHEER







  • This also brings up another problem and that’s the Citizens United case in which the US Supreme Court ruled that corporations and unions have the same political speech rights as individuals under the First Amendment.

    Thus allowing unlimited donations to super PACS. I have yet to see a corporation or union show up and vote at the ballot box. So then, how could they possibly have the same rights as individuals?

    Maybe it’s time for the Supreme Court to just read the Constitution and quit trying to interpret it to the current fad of the day!

    • I agree that the Citizens United decision was VERY poor indeed. Society would be FAR better off with publicly funded elections with ZERO campaign contributions allowed … given or accepted under severe criminal penalty.

      An even better Supreme Court decision … and perhaps NECESSARY to save America from it’s spiral down the drain of greed and political ineptitude and self-dealing, is ending Public Sector Union dues collection and collective bargaining (for ANYTHING other than genuine safety issues). Public Sector Unions are a CANCER on Society.



    In 2010, the Colorado Legislature enacted a bill, SB10-001, to take accrued, contracted public pension (Colorado PERA) benefits from elderly pensioners in our state. These contracted pension benefits were earned over 30 years. The pension benefits average about $28,000.

    The Colorado Legislature underfunded the PERA pension system for a decade, putting financial pressure on the system and lowering its “funded ratio.” Next, the Legislature claimed that this lowered funded ratio justified the breach of the State of Colorado’s contracts with its pensioners. Their average age is 70 years.

    Colorado has the 15th highest per capita income in the nation. There are sixty-four counties in Colorado. Ten of these counties are among the 100 richest counties in the nation. Yet, apparently we cannot afford to honor the State of Colorado’s contracts. This theft from the elderly in Colorado is supported by most of the Colorado media, 27 Colorado lobbyists who forced the bill through the legislative process, and public employers affiliated with the PERA pension system that want to easily slash their public pension debt. The retirees have no lobbyists and little voice.

    Governor John Hickenlooper is seeking to “rebrand” Colorado. I suggest “Colorado: The Welcher State.”

    Visit for the whole ugly story.

  • If The Democrats Didn’t Give ” Sweetheart Deals ” To Your Public Service Union.
    Goon Employees To Get Reelected; You Would Have Plenty Of Money and The.
    Taxpayer would have Some Spare Change in His Pockets! Democratic Hustler
    Politicians + Corrupt Union Goons = BANKRUPTCY BABY! Time To Bring.
    RICO Conspiracy Charges Against The Hustler Corrupt Democrats and the.
    Criminal Unions!

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