AFL-CIO President Richard Trumka speaks during a luncheon at the National Press Club Friday, May 20, 2011 in Washington. (AP Photo/Alex Brandon)
AFL-CIO President Richard Trumka is pulling no punches when it comes to the US Supreme Court’s recent pattern of decisions regarding the way in which corporations can engage in politics versus the way in which unions can engage.
“[This] Supreme Court says you cannot do anything to hamper the First Amendment rights of corporations,” argues Trumka. “But when it comes to workers, they haven’t seen a detriment to the First Amendment that they haven’t liked yet.”
Trumka has been increasingly critical of the Supreme Court’s 2010 Citizens United v. FEC ruling in recent months, arguing: “Citizen United has ushered in a new era of elections and it’s not a pretty picture.”
But now he has even more reason to be concerned. And, hopefully, to swing the labor movement toward even more aggressive support of fundamental reforms in how election campaigns are financed—up to and including a constitutional amendment to overturn Citizens United.
Traditionally, major corporations and major unions have both tended to seek maximum flexibility when it comes to political spending. And much of the media has covered corporations and unions as equal players. That was never really the case. Corporations, freed by the Court to spend freely from their treasuries on political campaigns, will invariably have more money at their disposal than unions. And the Court’s determination to extend Citizens United, as evidenced Monday by its rejection of Montana’s century-old anti-corruption law, which baned restricted corporate influence in state and local elections sets up even more brutal battles in regions where unions will have a very tough time even competing with corporate cash.
But that’s not the worst if it. The Court is not satisfied just to empower corporations. Now, the Court is making it a good deal harder for unions to work on political issues with the people they represent—especially non-members in organized workplaces—and to support candidates and mount campaigns.
With last week’s ruling in the case of Knox v. Service Employees International Union (SEIU) Local 1000, the High Court’s hyper-partisan, hyper-activist majority—Chief Justice John Roberts and Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel A. Alito—did several things that constrain the flexibility of unions in election fights. Indeed, the ruling was so sweeping in its advocacy, so adventurous in its politics, that Justice Sonia Sotomayor (joined by Justice Ruth Bader Ginsberg) concurred with the narrow judgement but objected: “I cannot agree with the majority’s decision to address unnecessarily significant constitutional issues well outside the scope of the questions presented and briefing. By doing so, the majority breaks our own rules and, more importantly, disregards principles of judicial restraint that define the Court’s proper role in our system of separated powers.”
Justice Sotomayor frets about the Court creating a “new world of fee collection” that is ill-defined and that, necessarily, will have an impact on all workers represented by a union, members and non-members. The concern she expresses is appropriate, as are those raised in an explicit dissent written by Justice Stephen Breyer (joined by Justice Elena Kagan). It is important to remember that, in so-called “agency shops,” workers often change their membership status. An internal organizing drive, a highly-charged moment (contract negotiations, a potential work action) or political shifts can cause people to get more or less active in a union. Thus, is it difficult, perhaps impossible, to speak of any of the issues relating to union political engagement in narrow and restrictive ways.
Yet, the Court’s majority does just that. And, as such, it creates significant new challenges for unions:
1. The High Court majority says that workers who are represented by a public-sector union but who have not formally joined the union must affirmatively “opt-in” for dues assessments that are targeted for political purposes. Specifically, Alito wrote: “To respect the limits of the First Amendment, (unions should send) out a new notice allowing nonmembers to opt in to the special fee rather than requiring them to opt out.”
That may sound reasonable. But it represents a major new requirement on unions in the public sector.
Unions have for many years maintained procedures for represented workers who are no formal members to “opt out” of paying additional dues for political work. But the requirement of an affirmative “opt-in” creates a significant amount of additional communication, paperwork and process expense and complexity for unions. There is no question that, in the fast-paced world of contemporary politics, this is a dramatic new burden. We are not talking about small numbers of workers here; Justice Alito’s ruling makes reference to 28,000 represented workers who fall into the category for the Service Employees union local at the center of this case.
2. Justice Alito suggests that he is interested not just in those with political objections to a union’s electoral agenda but folks who simply do not want to pay the fees—making reference to “First Amendment protection for employees who might not qualify as active ‘dissenters’ but who would nonetheless prefer to keep their own money rather than subsidizing by default the political agenda of a state-favored union.” So his ruling goes far beyond the narrow “free speech” considerations referenced in most media coverage of this case. That raised appropriate red flags for Justice Breyer, who noted correctly in his dissent that “where, as here, non- chargeable political expenses are at issue, there may be a significant number of represented nonmembers who do not feel strongly enough about the union’s politics to indicate a choice either way. That being so, an ‘opt-in’ requirement can reduce union revenues significantly, a matter of considerable importance to the union, while the additional protection it provides primarily helps only those who are politically near neutral.”
Throughout Justice Alito’s decision, there is a disturbing pattern of advocacy that seems to suggest he, and presumably his fellow conservative justices, want to go much further in limiting the flexibility of unions. Alito’s decision repeatedly suggests that the Court might go further, if asked, in limiting the ability of unions to collect dues or fees—perhaps all dues and fees—from represented workers. “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 justice writes at one point. At another point, he writes, that “procedures used by a union to collect money from non-members must satisfy a high standard.” Later, he writes: “The union has no constitutional right to receive any payment from these employees.” To be clear, Alito has not found an explicit “paycheck protection” or “right to work” clause in the Constitution yet. But he and, presumably, the Court’s activist majority, seems to be looking for one.
3. Justice Alito explicitly rejected definitions of political work by unions that are directly related to the protection of workers pay, benefits and rights, and to the maintenance of collective bargaining. “Public-employee salaries, pensions, and other benefits constitute a substantial percentage of the budgets of many States and their subdivisions. As a result, a broad array of ballot questions and campaigns for public office may be said to have an effect on present and future contracts between public-sector workers and their employers. If the concept of ‘germaneness’ were as broad as the SEIU advocates, public-sector employees who do not endorse the unions’ goals would be essentially unprotected against being compelled to subsidize political and ideological activities to which they object,” he wrote.
But aren’t fights over salaries, pensions and other benefits, as well as the ongoing ability of a union to fight on behalf of represented workers, germane to those workers—whether they are union members or not? The court says “no.” What would happen, however, if its standards were applied to the corporations that, with the Citizens United ruling and related decisions (including Monday’s decision to overturn Montana’s anti-corruption law), the Court has done so much to empower politically.
Corporations do not currently have to seek the approval of stockholders in order to direct money into political campaigns.
Indeed, shareholders get far less communication from corporations about political activity that union members or represented non-members. And, in most unions, members have far more say about political choices than do shareholders.
So what if the Court were to say that shareholders had to affirmatively approve corporate expenditures on behalf of candidates, parties or ballot measures?
Let’s go a step further. Millions of Americans own pieces of corporations through pension plans, investment funds and other vehicles that hold stock. Yet, these Americans get no information from corporations about political activities. What if the Court were to require corporations to get affirmative approval from them? Or even from the managers of pension plans or funds?
Corporate CEOs and their amen corner in the media would scream about the “bureaucratic nightmare” imposed on them by the Court, and their lawyers would portray it as an infringement of their free-speech “rights.”
Yet, a court that is busy removing barriers to corporate “speech” has just imposed new “bureaucratic nightmare” burdens on unions. And Alito’s ruling suggests that the Court majority will continue to do so.
The answer for unions is not to disengage from political activity. Obviously, the identity of the president who will appoint Supreme Court justices and the make-up of the Senate that will approve or reject those justices. So unions will continue to spend money on politics, and continue to win some important fights.
But, ultimately, organized labor needs to recognize that the campaign-finance system that is being created by an activist Supreme Court will be designed to serve multinational corporations, rather than working people or the organizations that represent them. That won’t be good for poltical competition, that won’t be good for the clash of ideas, and that won’t be good for democracy. But it will be especially bad for unions.
A growing number of union leaders and activists recognize this, and there has been serious movement on the part of the movement toward an embrace of proposals for fundamental reform—up to and including a constitutional amendment that overturns Citizens United and restores the principle that corporations do not have the same political rights as human beings. The AFL-CIO has edged toward backing an amendment, although the federation remains relatively tentative in this regard. “As long as Citizens United remains the law of the land, constitutional change may be the only option,” a May 2012 statement read. “Amending the US Constitution should be a rare act, done with the greatest of care. To earn our support, any such amendment must be carefully and narrowly crafted to protect our democracy from the economic power of the 1 percent, while at the same time protecting the public’s right to organize politically through democratic organizations and movements.”
The Supreme Court has made it abundantly clear that it is not going to back away from its Citizens United ruling; that it, infact, wants to extend the reach of the ruling. And the Knox decision makes it abundantly clear that the activist majority on the Court is intent not just on tipping the balance in favor or corporations but also on tipping it against labor unions.
Unions that are fighting not just for their own futures but for democarcy are going to need to recognize this new reality. They will continue to propose legislative remedies, including public-financing of elections and shareholder protection initiatives. But the recognition of where the Court is at, and where it is headed, will in all likelihood lead to a deeper understanding of the need for a constitutional amendment. An amendment, at least any that is likely to get serious traction, will not create a perfect playing field for labor unions. But it will create a better balance in our politics, where money does not so dominate the discourse that those with the most cash are best positioned to win—and where membership organizations with a capacity to employ “people power” rather than “money power” are likely to be advantaged. Ultimately, a people-powered politics is better for working familes and for organized labor.
Awhile back, Trumka said of the America political process: “If you want to look at the system, the system is broken. The Supreme Court helped break it even more with Citizens United. The system needs to be changed so that average, ordinary Americans can have as strong a voice as ExxonMobil does in the Congress.”
Now, more than ever, it is time to repair what the Court has broken with the best tool that is available to us: a constitutional amendment.