Legal Pitfalls of Paycheck Protection

May 27, 1998

The San Diego Union Tribune

May 27, 1998

Legal Pitfalls of Paycheck Protection

By E. Joshua Rosenkranz

Proposition 226, the upcoming ballot initiative here on “paycheck protection” promises to fuel a trend that seems poised to sweep the nation. Paycheck protection has passed in two states and is being pushed in nearly 30 more.

Proponents are hawking it with slogans about protecting workers’ paychecks from pickpockets and preserving their First Amendment rights. Who could be against that? Evidently no one, for these proposals are overwhelmingly favored at the polls with approvals ranging from 67 to 82 percent.

Don’t be fooled. These provisions are not pro-worker. And, it turns out, they violate the First Amendment.

In most states, a union can bargain with an employer to deduct union dues automatically from the paycheck of every union member. These dues fund both the union’s collective bargaining activities—which directly benefit every worker—and the union’s political messages.

The usual paycheck protection provision forbids an employer to deduct from any employee’s paycheck money that would fund the union’s political messages without first securing the employee’s explicit written authorization. Typically, the written authorization must be renewed annually.

Proponents of paycheck protection would have us believe that this restriction is necessary because otherwise workers would be compelled to pay for speech with which they disagreed. They cite Thomas Jefferson’s immortal precept that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors is sinful and tyrannical,” a precept that is at the heart of the First Amendment.

But paycheck protection laws do not protect workers from compelled speech because no worker is ever compelled to pay for the political speech of a union. If a worker does not want his money to go toward the union’s political speech, he is free to decline to join the union. The Supreme Court has made clear that the worker can be forced to pay his fair share of the union’ collective bargaining expenses—after all, the First Amendment does not guarantee a free ride—but the union must refund any portion of the dues allocable to the union’s general political messages.

That is the lesson of a 1988 Supreme Court case, Beck v. UAW. The National Labor Relations Board has imposed stringent requirements to ensure that unions remind every worker annually of his right to opt out of the union and thereby to avoid funding any political message with which he disagrees. And when the worker avails himself of the option, the union still has a duty to represent him just as it represents any full-fledged member.

Workers join unions for the same reasons people join any group. To feel a part of something larger. To enhance their collective power. To amplify their own voices. And, often, because they care passionately about issues to which the collective gives voice. That is not to say they agree with every word that issues from the collective voice.

But my decision to join a collective is a decision to allow the collective to speak for me, even on matters, every once in a while, on which I disagree. That is true whether the collective is a union or the Sierra Club, the Christian Coalition, the National Rifle Association, or any trade association. I may not like some of their messages. But that does not entitle me to slice up my dues and pay for only those messages with which I agree. My options are to grin and bear it; agitate for change from the inside; or quit.

As is true of any other member of a collective, a union member may have incentives toretain membership even though he might want to quit. He may, for example, want to retain the right to vote for union representatives, a prerogative reserved only for members, or he may wish to avoid the ire of his co-workers.

Those psychic benefits may make it harder to quit, but they do not make union membership any less voluntary. As long as the union member is permitted to make the choice to dissociate without losing his job and without severe repercussions, and so long as the union member is informed of and can exercise that right without undue burdens, the government has no business galloping in to undermine the collective will. Since every worker is free to decline to join the union, no worker can complain that he is compelled to fund political messages he abhors.

If workers do not need paycheck protection, what is really motivating its proponents? Here’s a hint: Some of the nation’s most ardent foes of labor are behind paycheck protection, most notably arch-conservatives like Grover Norquist of Americans for Tax Reform and insurance executive J. Patrick Rooney.

Their transparent motive is not to protect workers, but to silence them by diminishing their collective voice. Their goal is to stanch the flow of funds that labor relies upon to promote worker interests on issues such as NAFTA or the minimum wage. They also hope to prevent a repeat of the 1996 elections, when labor pumped millions into advertisements supporting pro-labor candidates. If they had their way, corporations would be able to flood the airwaves with anti-labor messages driven by the funds of unwary and unwilling shareholders, but unions would have to bear the enormous costs of securing contributions specifically earmarked for political messages. Both the motive and the means are unconstitutional.

First, the means: Imagine an initiative requiring all membership organizations to itemize their political messages and offer every member rebates for any message, or category of messages, he or she didn’t like. Any such rule would intolerable. It would infringe the right of these collectives to issue messages and it would infringe the right of their members to associate with one another and set their own rules. Under a long line of Supreme Court precedents protecting the right to organize and collect funds for political causes, such rules would be blatantly unconstitutional.

As for the motive: If the proponents of paycheck protection were truly worried about people being impressed to fund speech they find abhorrent, the most natural target would be business corporations, not the unions. After all, business corporations spend far more than unions on political speech, and none of it is ever pre-cleared by the shareholders who fund it.

The usual answer is that shareholders are free to express their disapproval by selling the stock. Not always. For some shareholders selling stock at any particular moment could mean financial ruin. And many shareholders—for example, those whose investments are made through pension funds or mutual funds selected by their employers—have no choice at all about
whether to sell the stock they hold. So it makes no sense to single out unions for these harsh rules.

Sure, it is usually permissible for laws to draw distinctions that make no sense. But not when the First Amendment is involved. Not when the law is devised to silence one viewpoint while allowing the opposing viewpoint to flourish.



E. Joshua Rosenkranz is Executive Director of the Brennan Center for Justice at New York
University School of Law.