Lawsuit threatens teachers unions’ power

“Money is the mother’s milk of politics”

          — Former Assembly Speaker Jesse ‘Big Daddy’ Unruh

The California Teachers Association has poured more than $150 million into state politics in the past decade – most of it going to Democratic candidates and liberal ballot measures. That kind of spending makes the 325,000-member CTA one of the greatest political forces in state history.

But a lawsuit filed by a group of teachers threatens to turn off the CTA’s political funding spigot: the automatic deduction of dues from paychecks for political purposes.

The suit, Friedrichs vs. California Teachers Association, is on behalf of the Christian Educators Association International and 10 teachers who have quit the teachers union and disagree with the CTA’s politics. They seek to stop the CTA from automatically collecting union dues.

Forced to ‘opt out’

Currently, their only recourse is to opt out every year by applying for a rebate of the portion of their dues used for political purposes. The portion’s percentage is determined by the union.

That has led to an over-reach into the wallets of those nonmembers who do not want to contribute to political spending, according to the Supreme Court in a similar case last year, Knox vs. Serv. Emps. Int’l Union, Local 1000.

In what could be precursor of Friedrichs, the court ruled 7-2 in Knox in favor of a group of California teachers who wanted to opt out of a special dues hike to fight Propositions 75 and 76 on the 2005 ballot.

Proposition 75 would have required unions to receive employee consent before charging fees for political purposes. Proposition 76 would have limited state spending, and allowed the governor to reduce government-employee compensation in certain circumstances.

Both propositions lost after opponents spent $10 million, nearly half of it from the CTA.

Republicans get stiffed

Although the CTA has deep pockets for Democrats and liberal causes, the union is quite stingy when it comes to Republican candidates, according to followthemoney.org.

From 2003-12, the CTA gave $15.7 million to Democratic candidates, but only $92,700 to Republicans. The California Democratic Party received $11.4 million from the CTA from 2004-12, while the California Republican Party got just $20,000, which it received in 2004.

Receiving more than $50,000 each were Insurance Commissioner Dave Jones, Gov. Jerry Brown, state Sen. Jim Beall, state Treasurer Bill Lockyer, state Sen. Mark Leno, former state treasurer Phil Angelides, former Assembly speaker Cruz Bustamante, Sen. Loni Hancock and School Superintendent Tom Torlakson.

But the CTA truly flexes its political muscles with ballot measures, which have received more than $135 million from the union from 2003-12. The union spent more than $33 million in 2012 alone.

Most of it, $21.3 million, went to the Alliance For a Better California 2012, which defeated Proposition 32. That measure would have prohibited unions from using payroll deductions for political purposes. CTA’s contribution was nearly $15 million more than the next highest contributor for the measure.

The CTA also donated $10.2 million last year to Californians To Protect Schools, Universities & Public Safety, which helped pass the Proposition 30 tax hike. Again the CTA gave more than twice as much as the nearest contributor for the measure.

In 2005 the CTA donated $20.3 million to Alliance For A Better California Yes On Propositions 79 & 80, although neither measure had anything to do with education. Proposition 79 would have provided prescription drug discounts for low-income residents. Proposition 80 would have required increased renewable energy resource procurement by 2010.

Despite the CTA’s $20.3 million, both measures failed.

District Court rules in favor of CTA

CTA’s large donation days could be over if the Friedrichs lawsuit is successful, forcing the CTA (and other public employee unions) to stop automatically deducting paychecks for political purposes.

The suit recently took either a step backward or a step forward in the judicial process, depending on which side you’re on. On Dec. 5 U.S. District Court Judge Josephine L. Staton ruled against the teachers, based on Supreme Court precedents allowing the current opt-out system.

CTA President Dean Vogel celebrated the lawsuit’s dismissal in a statement:

“It’s always satisfying when the courts side with working people and the rights of their unions to protect and defend them. On a daily basis, CTA works tirelessly to represent all educators – members and non-members alike. Because non-members benefit from this work to ensure they have quality teaching and learning conditions, the U.S. Supreme Court has repeatedly ruled it is only fair that they contribute toward these expenses. The Supreme Court has held these fees to be fair, constitutional and proper.

“It’s gratifying to see that this court has ruled that these fair share fees are lawful and entirely constitutional. We are confident that this attempt by forces to use the courts to gravely diminish the voices of CTA and other unions will not succeed if appealed, as we expect this case will be.”

The litigation is now headed to the Ninth Circuit Court of Appeal. That was the goal of the Center for Individual Rights, which is representing the teachers, in requesting Staton’s ruling against their complaint.

CIR President Terry Pell issued the following statement:

“With today’s decision, the ten California teacher plaintiffs we’re representing will be able to continue their efforts in obtaining the relief they are entitled to from the forced collection of union dues. These fees do nothing but cause ongoing and irreparable injury to their First Amendment rights.

“California’s ‘closed shop’ law is an egregious violation of one’s First Amendment rights because it forces all public school teachers to financially support highly controversial, political and ideological causes that often run contrary to their political and policy beliefs….

“With this case now one step closer to reaching the United States Supreme Court, our goal is to restore the constitutional right of millions of teachers to be able to decide for themselves whether to join and financially support a union.”

Supreme Court may welcome anti-CTA suit

Based on the reasoning and arguments in last year’s court ruling in Knox vs. SEIU, the court’s conservative justices and swing voter Anthony Kennedy appear interested in taking on a case like Friedrichs and perhaps ruling in favor of the teachers and against CTA.

The majority opinion in the Knox case, written by Samuel Alito (with citations omitted), asserts that constitutional rights are at stake:

“A close connection exists between this Nation’s commitment to self-government and the rights protected by the First Amendment, which creates ‘an open marketplace’ in which differing ideas about political, economic, and social issues can compete freely for public acceptance without improper government interference.

“The government may not prohibit the dissemination of ideas it disfavors, nor compel the endorsement of ideas that it approves. And the ability of like-minded individuals to associate for the purpose of expressing commonly held views may not be curtailed.

“Close­ly related to compelled speech and compelled association is compelled funding of the speech of private speakers or groups. Compulsory subsidies for private speech are thus subject to exacting First Amendment scrutiny and cannot be sustained unless, first, there is a comprehensive regulatory scheme involving a ‘mandated association’ among those who are required to pay the subsidy and, second, compulsory fees are levied only insofar as they are a ‘necessary incident’ of the ‘larger regulatory purpose which justified the required association.’”

Also from the Knox ruling:

“When a State establishes an ‘agency shop’ that exacts compulsory union fees as a condition of public employment, ‘[t]he dissenting employee is forced to support financially an organization with whose principles and demands he may disagree.’ This form of compelled speech and association imposes a ‘significant impingement on First Amendment rights.’ The justification for permitting a union to collect fees from nonmembers – to prevent them from free-riding on the union’s efforts – is an anomaly.

“Similarly, requiring objecting nonmembers to opt out of paying the nonchargeable portion of union dues – rather than exempting them unless they opt in – represents a remarkable boon for unions, creating a risk that the fees nonmembers pay will be used to further political and ideological ends with which they do not agree.”

Afoul of the First Amendment

The court majority in Knox also criticized the SEIU’s treatment of those wanting to opt out, saying it “ran afoul of the First Amendment.”

The union claimed that those wanting to opt out still had to give up 56.35 percent of the amount taken from their pay for chargeable expenses, even though all of the dues money was slated for fighting those propositions.

“[T]he SEIU’s understanding of the breadth of chargeable expenses is so expansive that it is hard to place much re­liance on its statistics,” wrote Alito. “[E]ven a full refund would not undo the First Amendment violations, since the First Amendment does not permit a union to ex­tract a loan from unwilling nonmembers even if the money is later paid back in full.”

Sonia Sotomayor and Ruth Bader Ginsburg joined the majority in the vote, but are reluctant to change the status quo.

“[T]he majority strongly hints that this line may not long endure,” Sotomayor wrote. “To cast serious doubt on longstanding precedent is a step we historically take only with the greatest caution and reticence.”

Stephen Breyer’s dissent noted that the dues opt-out process goes back to the court’s ruling in 1986 in Chicago Teachers Union vs. Hudson:

“For the last 25 years unions and employers across the Nation have relied upon this Court’s statements in Hudson in developing administratively workable systems that (1) allow unions to pay the costs of fulfilling their representational obligations to both members and non­members alike, while (2) simultaneously protecting the causes not germane to [the union’s] duties as collective ­bargaining agent.

“Even were the underlying facts different, I can find no constitutional basis for charging an objecting nonmember less than the 56 percent that the preceding year’s audit showed was appropriate.”

The one thing that all sides agree on is that the fight is far from over.

Breyer wrote that the majority’s opinion in Knox could be read to apply not just to the specific special dues hike by SEIU, “but to ordinary yearly fee charges as well. At least, its opinion can be so read. And that fact virtually guarantees that the opinion will play a central role in an ongoing, intense political debate.”

He certainly was right that the political debate is intense, and will continue.