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SUPREME COURT OF THE UNITED STATES
_________________
No. 10–1121
_________________
DIANNE KNOX, et al., PETITIONERS
v. SERVICE EM- PLOYEES INTERNATIONAL UNION, LOCAL 1000
on writ of certiorari to the united states
court of appeals for the ninth circuit
[June 21, 2012]
Justice Alito delivered the opinion of the
Court.
In this case, we decide whether the First
Amendment allows a public-sector union to require objecting
nonmembers to pay a special fee for the purpose of financing the
union’s political and ideological activities.
I
A
Under California law, public-sector employees
in a bargaining unit may decide by majority vote to create an
“agency shop” arrangement under which all the employees
are represented by a union selected by the majority. Cal. Govt.
Code Ann. §3502.5(a) (West 2010). While employees in the unit
are not required to join the union, they must nevertheless pay the
union an annual fee to cover the cost of union services related to
collective bargaining (so-called chargeable expenses). See
Lehnert v.
Ferris Faculty Assn.,
500 U.S.
507, 524 (1991);
Machinists v.
Street,
367 U.S.
740, 760 (1961).
Our prior cases have recognized that such
arrangements represent an “impingement” on the First
Amendment rights of nonmembers.
Teachers v.
Hudson,
475 U.S.
292, 307, n. 20 (1986). See also
Davenport v.
Washington Ed. Assn.,
551 U.S.
177, 181 (2007) (“[A]gency-shop arrangements in the
public sector raise First Amendment concerns because they force
individuals to contribute money to unions as a condition of
government employment”);
Street,
supra, at 749
(union shop presents First Amendment “questions of the utmost
gravity”). Thus, in
Abood v.
Detroit Bd. of
Ed.,
431 U.S.
209 (1977), we held that a public-sector union, while permitted
to bill nonmembers for chargeable expenses, may not require
nonmembers to fund its political and ideological projects. And in
Hudson, we identified procedural requirements that a union
must meet in order to collect fees from nonmembers without
violating their rights. 475 U. S., at 302–311. The First
Amendment, we held, does not permit a public-sector union to adopt
procedures that have the effect of requiring objecting nonmembers
to lend the union money to be used for political, ideological, and
other purposes not germane to collective bargaining.
Id., at
305. In the interest of administrative convenience, however, we
concluded that a union “cannot be faulted” for
calculating the fee that nonmembers must pay “on the basis of
its expenses during the preceding year.”
Id., at 307,
n. 18.
Hudson concerned a union’s regular
annual fees. The present case, by contrast, concerns the First
Amendment requirements applicable to a special assessment or dues
increase that is levied to meet expenses that were not disclosed
when the amount of the regular assessment was set.
B
In June 2005, respondent, the Service
Employees International Union, Local 1000 (SEIU), sent out its
regular
Hudson notice informing employees what the agency
fee would be for the year ahead. The notice set monthly dues at 1%
of an employee’s gross monthly salary but capped monthly dues
at $45. Based on the most recently audited year, the SEIU estimated
that 56.35% of its total expenditures in the coming year would be
dedicated to chargeable collective-bargaining activities. Thus, if
a nonunion employee objected within 30 days to payment of the full
amount of union dues, the objecting employee was required to pay
only 56.35% of total dues. The SEIU’s notice also included a
feature that was not present in
Hudson: The notice stated
that the agency fee was subject to increase at any time without
further notice.
During this time, the citizens of the State of
California were engaged in a wide-ranging political debate
regarding state budget deficits, and in particular the budget
consequences of growing compensation for public employees backed by
powerful public-sector unions. On June 13, 2005, Governor Arnold
Schwarzenegger called for a special election to be held in November
2005, where voters would consider various ballot propositions aimed
at state-level structural reforms. Two of the most controversial
issues on the ballot were Propositions 75 and 76. Proposition 75
would have required unions to obtain employees’ affirmative
consent before charging them fees to be used for political
purposes. Proposition 76 would have limited state spending and
would have given the Governor the ability under some circumstances
to reduce state appropriations for public-employee compensation.
The SEIU joined a coalition of public-sector unions in vigorously
opposing these measures. Calling itself the “Alliance for a
Better California,” the group would eventually raise
“more than $10 million, with almost all of it coming from
public employee unions, including $2.75 million from state worker
unions, $4.7 million from the California Teachers Association, and
$700,000 from school workers unions.”[
1]
On July 30, shortly after the end of the 30-day
objection period for the June
Hudson notice, the SEIU
proposed a temporary 25% increase in employee fees, which it billed
as an “Emergency Temporary Assessment to Build a Po- litical
Fight-Back Fund.” App. 25. The proposal stated that the money
was needed to achieve the union’s political objectives, both
in the special November 2005 election and in the November 2006
election.
Id., at 26
. According to the proposal,
money in the Fight-Back Fund would be used “for a broad range
of political expenses, including television and radio advertising,
direct mail, voter registration, voter education, and get out the
vote activities in our work sites and in our communities across
California.”
Ibid. The proposal specifically stated
that “[t]he Fund will not be used for regular costs of the
union—such as office rent, staff salaries or routine
equipment replacement, etc.”
Ibid. It noted that
“all other public worker unions are in the process of raising
the extraordinary funds needed to defeat the Governor.”
Id., at 27. And it concluded: “Each of us must do our
part to turn back these initiatives which would allow the Governor
to destroy our wages and benefits and even our jobs, and threaten
the well-being of all Californians.”
Ibid. On August
27, the SEIU’s General Council voted to implement the
proposal.
On August 31, the SEIU sent out a letter
addressed to “Local 1000 Members and Fair Share Fee
Payers,” an- nouncing that, for a limited period, their fees
would be raised to 1.25% of gross monthly salary and the
$45-per-month cap on regular dues would not apply.
Id., at
31. The letter explained that the union would use the fund to
“defeat Proposition 76 and Proposition 75 on November
8,” and to “defeat another attack on [its] pension
plan” in June 2006.
Ibid. The letter also informed
employees that, in the following year, the money would help
“to elect a governor and a legislature who support public
employees and the services [they] provide.”
Ibid.
After receiving this letter, one of the
plaintiffs in this case called the SEIU’s offices to complain
that the union was levying the special assessment for political
purposes without giving employees a fair opportunity to object. An
SEIU area manager responded that “even if [the employee]
objected to the payment of the full agency fee, there was nothing
he could do about the September increase for the Assessment.”
Knox v.
Westly, No. 2:05–cv–02198,
2008 WL 850128, *3 (ED Cal., Mar. 28, 2008). “She also stated
that ‘we are in the fight of our lives,’ that the
Assessment was needed, and that there was nothing that could be
done to stop the Union’s expenditure of that Assessment for
political purposes.”
Ibid. As a consolation, however,
those employees who had filed timely objections after the regular
June
Hudson notice were required to pay only 56.35% of the
temporary increase.
Petitioners filed this class-action suit on
behalf of 28,000 nonunion employees who were forced to contribute
money to the Political Fight-Back Fund. Some of the class members
had filed timely objections after receiving the regular
Hudson notice in June, and others had not. Those who had
objected argued that it was wrong to require them to pay 56.35% of
the temporary assessment, which had been billed as intended for use
in making political expenditures that they found objectionable.
Those who had not objected after receiving the June
Hudson
notice contended that they should have received a new opportunity
to object when the SEIU levied the special assessment for its
Political Fight-Back Fund.
The District Court granted summary judgment for
the petitioners, finding that the union “fully intended to
use the 12 million additional dollars it anticipated to raise for
political purposes.” 2008 WL 850128, *7. “Even if every
cent of the assessment was not intended to be used for entirely
political purposes,” the court stated, “it is clear
that the Union’s intent was to depart drastically from its
typical spending regime and to focus on activities that were
political or ideological in nature.”
Id., at *8. In
light of this fact, the court held that it would be inappropriate
for the union to rely on previous annual expenditures to estimate
that 56.35% of the new fee would go toward chargeable expenses. The
court ordered the SEIU to send out a new notice giving all class
members 45 days to object and to provide those who objected with a
full refund of their contributions to the Political Fight-Back
Fund.
Id., at *12.
A divided panel of the Ninth Circuit reversed.
Knox v.
California State Employees Assn., Local 1000,
628 F.3d 1115 (2010). According to the panel majority,
Hudson prescribed the use of a balancing test. 628
F. 3d, at 1119–1120. The majority therefore inquired
whether the procedure that the SEIU employed reasonably
accommodated the interests of the union, the employer, and
nonmember employees.
Id., at 1120–1123. Judge Wallace
dissented, arguing that the majority had misinterpreted
Hudson and sanctioned the abridgment of the First Amendment
rights of nonmembers. 628 F. 3d, at 1123–1139.
We granted certiorari. 564 U. S. ___
(2011).
II
The SEIU argues that we should dismiss this
case as moot. In opposing the petition for certiorari, the SEIU
defended the decision below on the merits. After certiorari was
granted, however, the union sent out a notice offering a full
refund to all class members, and the union then promptly moved for
dismissal of the case on the ground of mootness. Such
postcertiorari maneuvers designed to insulate a decision from
review by this Court must be viewed with a critical eye. See
City News & Novelty, Inc. v.
Waukesha,
531 U.S.
278, 283–284 (2001). The vol-untary cessation of
challenged conduct does not ordinar- ily render a case moot because
a dismissal for mootness would permit a resumption of the
challenged conduct as soon as the case is dismissed. See
City of
Mesquite v.
Aladdin’s Castle,
Inc.,
455 U.S.
283, 289 (1982). And here, since the union continues to defend
the legality of the Political Fight-Back fee, it is not clear why
the union would necessarily refrain from collecting similar fees in
the future.
The union argues that concerns about voluntary
cessation are inapplicable in this case because petitioners do not
seek any prospective relief. See Motion to Dismiss as Moot
11–12. But even if that is so, the union’s mootness
argument fails because there is still a live controversy as to the
adequacy of the SEIU’s refund notice. A case becomes moot
only when it is impossible for a court to grant
“ ‘ “any effectual relief
whatever” to the prevailing party.’ ”
Erie v.
Pap’s A. M.,
529
U.S. 277, 287 (2000) (quoting
Church of Scientology of
Cal. v.
United States, 506 U.S.
9, 12 (1992), in turn quoting
Mills v.
Green,
159 U.S.
651, 653 (1895)). “[A]s long as the parties have a
concrete interest, however small, in the outcome of the litigation,
the case is not moot.”
Ellis v.
Railway Clerks,
466 U.S.
435, 442 (1984).
The District Court ordered the SEIU to send out
a “proper” notice giving employees an adequate
opportunity to receive a full refund. 2008 WL 850128, *12.
Petitioners argue that the notice that the SEIU sent was improper
because it includes a host of “conditions, caveats, and
confusions as unnecessary complications aimed at reducing the
number of class members who claim a refund.” Brief for
Petitioners in Opposition to Motion to Dismiss 19. In particular,
petitioners allege that the union has refused to accept refund
requests by fax or e-mail and has made refunds conditional upon the
provision of an original signature and a Social Security number.
Id., at 18–19. As this dispute illustrates, the nature
of the notice may affect how many employees who object to the
union’s special assessment will be able to get their money
back. The union is not entitled to dictate unilaterally the manner
in which it advertises the availability of the refund.
For this reason, we conclude that a live
controversy remains, and we proceed to the merits.
III
A
Our cases have often noted the close
connection between our Nation’s commitment to self-government
and the rights protected by the First Amendment. See,
e.g.,
Brown v.
Hartlage,
456 U.S.
45, 52 (1982) (“At the core of the First Amendment are
certain basic conceptions about the manner in which political
discussion in a representative democracy should proceed”);
Buckley v.
Valeo,
424 U.S.
1, 93, n. 127 (1976)
(per curiam)
(“[T]he central purpose of the Speech and Press Clauses was
to assure a society in which ‘uninhibited, robust, and
wide-open’ public debate concerning matters of public
interest would thrive, for only in such a society can a healthy
representative democracy flourish”);
Cox v.
Louisiana,
379 U.S.
536, 552 (1965) (“Maintenance of the opportunity for free
political discussion is a basic tenet of our constitutional
democracy”);
Whitney v.
California,
274 U.S.
357, 375 (1927) (Brandeis, J., concurring);
Patterson v.
Colorado ex rel.
Attorney General of Colo.,
205 U.S.
454, 465 (1907) (Harlan, J., dissenting).
The First Amendment creates “an open
marketplace” in which differing ideas about political,
economic, and social issues can compete freely for public
acceptance without improper government interference.
New York
State Bd. of Elections v.
Lopez Torres,
552 U.S.
196, 208 (2008). See also
Hustler Magazine, Inc. v.
Falwell,
485 U.S.
46, 51 (1988);
Mills v.
Alabama,
384 U.S.
214, 218–219 (1966). The government may not prohibit the
dissemination of ideas that it disfavors, nor compel the
endorsement of ideas that it approves. See
R. A. V. v.
St. Paul,
505 U.S.
377, 382 (1992);
Brandenburg v.
Ohio,
395 U.S.
444, 447–448 (1969)
(per curiam); West
Virginia Bd. of Ed. v.
Barnette,
319
U.S. 624 (1943);
Wooley v.
Maynard,
430 U.S.
705, 713–715 (1977);
Riley v.
National
Federation of Blind of N. C., Inc.,
487 U.S.
781, 797 (1988) (The First Amendment protects “the
decision of both what to say and what not to say” (emphasis
deleted)). And the ability of like-minded individuals to associate
for the purpose of expressing commonly held views may not be
curtailed. See
Roberts v.
United States Jaycees,
468 U.S.
609, 623 (1984) (“Freedom of association . . .
plainly presupposes a freedom not to associate”);
NAACP v.
Alabama ex rel. Patterson, 357 U.S.
449, 460–461 (1958).
Closely related to compelled speech and
compelled association is compelled funding of the speech of other
private speakers or groups. See
Abood, 431 U. S., at
222–223. In
United States v.
United Foods,
Inc.,
533 U.S.
405 (2001), we considered the constitutionality of a state
scheme that compelled such funding. The subject of the speech at
issue—promoting the sale of mushrooms—was not one that
is likely to stir the passions of many, but the mundane commercial
nature of that speech only highlights the importance of our
analysis and our holding.
The federal Mushroom Promotion, Research, and
Consumer Information Act required that fresh mushroom handlers pay
assessments used primarily to fund advertisements promoting
mushroom sales. A large producer objected to subsidizing these
generic ads, and even though we applied the less demanding standard
used in prior cases to judge laws affecting commercial speech, we
held that the challenged scheme violated the First Amendment. We
made it clear that compulsory subsidies for private speech are
subject to exacting First Amendment scrutiny and cannot be
sustained unless two criteria are met. First, there must be a
comprehensive regulatory scheme involving a “mandated
association” among those who are required to pay the subsidy.
Id., at 414. Such situations are exceedingly rare because,
as we have stated elsewhere, mandatory associations are permissible
only when they serve a “compelling state interes[t]
. . . that cannot be achieved through means significantly
less restrictive of associational freedoms.”
Roberts,
supra, at 623. Second, even in the rare case where a
mandatory association can be justified, compulsory fees can be
levied only insofar as they are a “necessary incident”
of the “larger regulatory purpose which justified the
required association.”
United Foods,
supra, at
414.
B
When a State establishes an “agency
shop” that ex- acts 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.”
Ellis, 466 U. S., at
455. Because a public-sector union takes many positions during
collective bargaining that have powerful political and civic
consequences, see Tr. of Oral Arg. 48–49, the compulsory fees
constitute a form of compelled speech and association that imposes
a “significant impingement on First Amendment rights.”
Ellis,
supra, at 455. Our cases to date have
tolerated this “impingement,” and we do not revisit
today whether the Court’s former cases have given adequate
recognition to the critical First Amendment rights at stake.
“The primary purpose” of permitting
unions to collect fees from nonmembers, we have said, is “to
prevent nonmembers from free-riding on the union’s efforts,
sharing the employment benefits obtained by the union’s
collective bargaining without sharing the costs incurred.”
Davenport, 551 U. S., at 181. Such free-rider
arguments, however, are generally insufficient to overcome First
Amend- ment objections. Consider the following examples:
“If a community association engages
in a clean-up campaign or opposes encroachments by industrial
development, no one suggests that all residents or property owners
who benefit be required to contribute. If a parent-teacher
association raises money for the school library, assessments are
not levied on all parents. If an association of university
professors has as a major function bringing pressure on
universities to observe standards of tenure and academic freedom,
most professors would consider it an outrage to be required to
join. If a medical association lobbies against regulation of fees,
not all doctors who share in the benefits share in the
costs.”[
2]
Acceptance of the free-rider argument as a
justification for compelling nonmembers to pay a portion of union
dues represents something of an anomaly—one that we have
found to be justified by the interest in furthering “labor
peace.”
Hudson, 475 U. S., at 303. But it is an
anomaly nevertheless.
Similarly, requiring objecting nonmembers to opt
out of paying the nonchargeable portion of union dues—as
opposed to exempting them from making such payments unless they opt
in—represents a remarkable boon for unions. Courts “do
not presume acquiescence in the loss of fundamental rights.”
College Savings Bank v.
Florida Prepaid Postsecondary Ed.
Expense Bd., 527 U.S.
666, 682 (1999) (internal quotation marks omitted). Once it is
recognized, as our cases have, that a nonmember cannot be forced to
fund a union’s political or ideological activities, what is
the justification for putting the burden on the nonmember to opt
out of making such a payment? Shouldn’t the default rule
comport with the probable preferences of most nonmembers? And
isn’t it likely that most employees who choose not to join
the union that represents their bargaining unit prefer not to pay
the full amount of union dues? An opt-out system creates a risk
that the fees paid by nonmembers will be used to further political
and ideological ends with which they do not agree. But a
“[u]nion should not be permitted to exact a service fee from
nonmembers without first establishing a procedure which will avoid
the risk that their funds will be used, even temporarily, to
finance ideological activities unrelated to collective
bargaining.”
Hudson,
supra, at 305 (internal
quotation marks omitted).
Although the difference between opt-out and
opt-in schemes is important, our prior cases have given
sur-prisingly little attention to this distinction. Indeed,
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.
The trail begins with dicta in
Street,
where we considered whether a federal collective-bargaining statute
authorized a union to impose compulsory fees for political
activities. 367 U. S., at 774. The plaintiffs were employees
who had affirmatively objected to the way their fees were being
used, and so we took that feature of the case for granted. We held
that the statute did not authorize the use of the objecting
employees’ fees for ideological purposes, and we stated in
passing that “dissent is not to be presumed—it must
affirmatively be made known to the union by the dissenting
employee.”
Ibid. In making that offhand remark, we did
not pause to consider the broader constitutional implications of an
affirmative opt-out requirement. Nor did we explore the extent of
First Amendment protection for employees who might not qual-ify 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.
In later cases such as
Abood and
Hudson, we assumed without any focused analysis that the
dicta from
Street had authorized the opt-out requirement as
a constitutional matter. Thus in
Hudson we did not take
issue with the union’s practice of giving employees annual
notice and an opportunity to object to expected political
expenditures. At the same time, however, we made it clear that the
procedures used by a union to collect money from nonmembers must
satisfy a high standard.
Contrary to the view of the Ninth Circuit panel
major-ity, we did not call for a balancing of the
“right” of the union to collect an agency fee against
the First Amendment rights of nonmembers. 628 F. 3d, at
1119–1120. As we noted in
Davenport, “unions
have no constitutional entitlement to the fees of
nonmember-employees.” 551 U. S., at 185. A union’s
“collection of fees from nonmembers is authorized by an act
of legislative grace,” 628 F. 3d, at 1126 (Wallace, J.,
dissenting)—one that we have termed “unusual” and
“extraordinary,”
Davenport, supra, at
184, 187. Far from calling for a balancing of rights or interests,
Hudson made it clear that any procedure for exacting fees
from unwilling contributors must be “care-fully tailored to
minimize the infringement” of free speech rights. 475
U. S., at 303. And to underscore the meaning of this careful
tailoring, we followed that statement with a citation to cases
holding that measures burdening the freedom of speech or
association must serve a “compelling interest” and must
not be significantly broader than necessary to serve that
interest.[
3]
IV
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 SEIU, however, asks us to go
farther. It asks us to approve a procedure under which (a) a
special assessment billed for use in electoral campaigns was
assessed without providing a new opportunity for nonmembers to
decide whether they wished to contribute to this effort and (b)
nonmembers who previously opted out were nevertheless required to
pay more than half of the special assessment even though the union
had said that the purpose of the fund was to mount a political
campaign and that it would not be used for ordinary union expenses.
This aggressive use of power by the SEIU to collect fees from
nonmembers is indefensible.
A
First, we see no justification for the
union’s failure to provide a fresh
Hudson notice.
Hudson rests on the principle that nonmembers should not be
required to fund a union’s political and ideological projects
unless they choose to do so after having “a fair
opportunity” to assess the im- pact of paying for
nonchargeable union activities. 475 U. S., at 303. Giving
employees only one opportunity per year to make this choice is
tolerable if employees are able at the time in question to make an
informed choice. But a nonmember cannot make an informed choice
about a special assessment or dues increase that is unknown when
the annual notice is sent. When a union levies a special assessment
or raises dues as a result of unexpected developments, the factors
influencing a nonmember’s choice may change. In particular, a
nonmember may take special exception to the uses for which the
additional funds are sought.[
4]
The present case provides a striking example.
The special assessment in this case was billed for use in a broad
electoral campaign designed to defeat two important and
controversial ballot initiatives and to elect sympa- thetic
candidates in the 2006 gubernatorial and legislative elections.
There were undoubtedly nonmembers who, for one reason or another,
chose not to opt out or neglected to do so when the standard
Hudson notice was sent but who took strong exception to the
SEIU’s political objectives and did not want to subsidize
those efforts. These nonmembers might have favored one or both of
the ballot initiatives; they might have wished to support the
reelection of the incumbent Governor; or they might not have wanted
to delegate to the union the authority to decide which candidates
in the 2006 elections would receive a share of their money.
The effect on nonmembers was particularly
striking with respect to the union’s campaign against
Proposition 75 because that initiative would have bolstered
nonmember rights. If Proposition 75 had passed, nonmembers would
have been exempt from paying for the SEIU’s extensive
political projects unless they affirmatively consented. Thus, the
effect of the SEIU’s procedure was to force many nonmembers
to subsidize a political effort designed to restrict their own
rights.
As
Hudson held, procedures for collecting
fees from nonmembers must be carefully tailored to minimize
impingement on First Amendment rights, and the procedure used in
this case cannot possibly be considered to have met that standard.
After the dues increase was adopted, the SEIU wrote to all
employees in the relevant bargaining units to inform them of this
development. It would have been a relatively simple matter for the
union to cast this letter in the form of a new
Hudson
notice, so that nonmembers could decide whether they wanted to pay
for the union’s electoral project.
The SEIU argues that we should not be troubled
by its failure to provide a new notice because nonmembers who
objected to the special assessment but were nonetheless required to
pay it would have been given the chance to recover the funds in
question by opting out when the next annual notice was sent. If the
special assessment was used entirely or in part for nonchargeable
purposes, they suggest, the percentage of the union’s annual
expenditures for chargeable purposes would decrease, and therefore
the amount of the dues payable by objecting nonmembers the
following year would also decrease. This decrease, how- ever, would
not fully recompense nonmembers who did not opt out after receiving
the regular notice but would have opted out if they had been
permitted to do so when the special assessment was
announced.[
5] And in any event,
even a full refund would not undo the violation of First Amendment
rights. As we have recognized, 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. See
Hudson, supra, at 305;
Ellis, 466 U. S., at 444. Here, for nonmembers who
disagreed with the SEIU’s electoral objectives, a refund
provided after the union’s objectives had already been
achieved would be cold comfort.[
6]
To respect the limits of the First Amendment,
the union should have sent out a new notice allowing nonmembers to
opt in to the special fee rather than requiring them to opt out.
Our cases have tolerated a substantial impingement on First
Amendment rights by allowing unions to impose an opt-out
requirement at all. Even if this burden can be justified during the
collection of regular dues on an annual basis, there is no way to
justify the additional burden of imposing yet another opt-out
requirement to collect special fees whenever the union desires.
B
1
The SEIU’s treatment of nonmembers who
opted out when the initial
Hudson notice was sent also ran
afoul of the First Amendment. The SEIU required these employees to
pay 56.35% of the special assessment, just as they had been
required to pay 56.35% of the regular annual dues. But the union
proclaimed that the special assessment would be used to support an
electoral campaign and would not be used for ordinary union
expenses. Accordingly, there is no reason to suppose that 56.35% of
the new assessment was used for properly chargeable expenses. On
the contrary, if the union is to be taken at its word, virtually
all of the money was slated for nonchargeable uses.
The procedure accepted in
Hudson is
designed for use when a union sends out its regular annual dues
notices. The procedure is predicated on the assumption that a
union’s allocation of funds for chargeable and noncharge-
able purposes is not likely to vary greatly from one year to the
next.[
7] No such assumption is
reasonable, however, when a union levies a special assessment or
raises dues as a result of events that were not anticipated or
disclosed at the time when a yearly
Hudson notice was sent.
Accordingly, use of figures based on an audit of the union’s
operations during an entire previous year makes no sense.
Nor would it be feasible to devise a new
breakdown of chargeable and nonchargeable expenses for the special
assessment. Determining that breakdown is problematic enough when
it is done on a regular annual basis because auditors typically do
not make a legal determination as to whether particular
expenditures are chargeable. Instead, the auditors take the
union’s characterization for granted and perform the simple
accounting function of “ensur[ing] that the expenditures
which the union claims it made for certain expenses were actually
made for those expenses.”
Andrews v.
Education
Assn. of Cheshire, 829 F.2d 335, 340 (CA2 1987). Thus, if a
union takes a very broad view of what is chargeable—if, for
example, it believes that supporting sympathetic political
candidates is chargeable and bases its classification on that
view—the auditors will classify these political expenditures
as chargeable. Objecting employees may then contest the
union’s chargeability determinations, but the onus is on the
employees to come up with the resources to mount the legal
challenge in a timely fashion.[
8] See,
e.g., Lehnert, 500 U. S., at
513;
Jibson v.
Michigan Ed. Assn.,
30 F.3d 723, 730 (CA6 1994). This is already a significant
burden for employees to bear simply to avoid having their money
taken to subsidize speech with which they disagree, and the burden
would become insupportable if unions could impose a new assessment
at any time, with a new chargeability determination to be
challenged.
2
The SEIU argues that objecting nonmembers who
were required to pay 56.35% of the special assessment, far from
subsidizing the union’s political campaign, actually received
a windfall. According to the union’s statistics, the actual
percentage of regular dues and fees spent for chargeable purposes
in 2005 turned out to be quite a bit higher (66.26%), and
therefore, even if all of the money obtained through the special
assessment is classified as nonchargeable, the union’s total
expenditures for 2005 were at least 66.26% chargeable. See Brief
for Respond- ent 5, n. 6. This argument is unpersuasive for
several reasons.
First, the SEIU’s understanding of the
breadth of charge- able expenses is so expansive that it is hard to
place much reliance on its statistics. In its brief, the SEIU
argues broadly that all funds spent on “lobbying
. . . the electorate” are chargeable. See
id., at 51. But “lobbying . . . the
electorate” is nothing but another term for supporting
political causes and candidates, and we have never held that the
First Amendment permits a union to compel nonmembers to support
such political activities. On the contrary, as long ago as
Street, we noted the important difference between a
union’s authority to engage in collective bargaining and
related activities on behalf of nonmember employees in a bargaining
unit and the union’s use of nonmembers’ money “to
support candidates for public office” or “to support
political causes which [they] oppos[e].” 367 U. S., at
768.
The sweep of the SEIU’s argument is
highlighted by its discussion of the use of fees paid by objecting
nonmembers to defeat Proposition 76. According to the SEIU, these
expenditures were “germane” to the implementation of
its contracts because, if Proposition 76 had passed, it would have
“effectively permitted the Governor to abrogate the
Union’s collective bargaining agreements under certain
circumstances, undermining the Union’s ability to perform its
representation duty of negotiating effective collective bargaining
agreements.” Brief for Respondent 49–50 (internal
quotation marks omitted).
If we were to accept this broad definition of
germaneness, it would effectively eviscerate the limitation on the
use of compulsory fees to support unions’ controversial
political activities. 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.
Second, even if the SEIU’s statistics are
accurate, it does not follow that it was proper for the union to
charge objecting nonmembers 56.35%—or any other particular
per- centage—of the special assessment. Unless it is possible
to determine in advance with some degree of accuracy the percentage
of union funds that will be used during an upcoming year for
chargeable purposes—and the SEIU argues that this is not
possible—there is at least a risk that, at the end of the
year, unconsenting nonmembers will have paid either too much or too
little. Which side should bear this risk?
The answer is obvious: the side whose
constitutional rights are not at stake. “Given the existence
of acceptable alternatives, [a] union cannot be allowed to commit
dissenters’ funds to improper uses even temporarily.”
Ellis, 466 U. S., at 444. Thus, if unconsenting
nonmembers pay too much, their First Amendment rights are
infringed. On the other hand, if unconsenting nonmembers pay less
than their proportionate share, no constitutional right of the
union is violated because the union has no constitutional right to
receive any payment from these employees. See
Davenport, 551
U. S., at 185. The union has simply lost for a few months the
“extraordinary” benefit of being em- powered to compel
nonmembers to pay for services that they may not want and in any
event have not agreed to fund.
As we have noted, by allowing unions to collect
any fees from nonmembers and by permitting unions to use opt-out
rather than opt-in schemes when annual dues are billed, our cases
have substantially impinged upon the First Amendment rights of
nonmembers. In the new situation presented here, we see no
justification for any further impingement. The general
rule—individuals should not be compelled to subsidize private
groups or private speech—should prevail.
Public-sector unions have the right under the
First Amendment to express their views on political and social
issues without government interference. See,
e.g., Citizens
United v.
Federal Election Comm’n, 558 U. S.
___ (2010). But employees who choose not to join a union have the
same rights. The First Amendment creates a forum in which all may
seek, without hindrance or aid from the State, to move public
opinion and achieve their political goals. “ First Amendment
values [would be] at serious risk if the government [could] compel
a particular citizen, or a discrete group of citizens, to pay
special subsidies for speech on the side that [the government]
favors.”
United Foods, 533 U. S., at 411.
Therefore, when a public-sector union imposes a special assessment
or dues increase, the union must provide a fresh
Hudson
notice and may not exact any funds from nonmembers without their
affirmative consent.[
9]
* * *
The judgment of the Ninth Circuit is reversed,
and the case is remanded for further proceedings consistent with
this opinion.
It is so ordered.