by
Bradley C.S. Watson
#1999-61, January 12, 1999
Introduction
When the American republic was founded, it was understood to be unique in several respects. One of the most important was that the people, who were to be sovereign, would not take part in the administration of government. That is, unlike democracies in the ancient world, the people would not meet together to make laws directly. Americaís government would be conducted by representatives, who in turn would be controlled by the sovereign people, primarily through the mechanism of elections. Since the 1970s, American elections have become heavily regulated. Both in degree and kind, this regulation differs from anything in Americaís past. The problem this poses is obvious: if elections are the peopleís main way of controlling government, and government comes to control elections through regulation, who is controlling whom?
Government regulates elections today by regulating campaign finance. In such a vast republic, it is an inexorable fact of political life that financial resources, used to support candidate and party organizations, are essential if voters are to be fully informed of political arguments. By controlling campaign finance, then, government controls political speech. Predictably, this regulation has tended to favor some and disfavor others inÝthe political process. It is often noted, for instance, that it tends to benefit incumbents at the expense of challengers. A less noted but more fundamental modern development-begun long before campaign finance regulation but aided by itóhas been an increase in the power of interest groups at theÝexpense of individuals. The immense political power today of labor unionsóspecifically, union leadersóas opposed to individual workers is one example.
As an illustration, in 1996, labor unions earmarked $35 million in so-called "soft money" for a voter education campaign that amounted to an effort to defeat candidates-almost all of them Republicans-nationwide. This money came mostly from compulsory union dues and fees. Yet these expenditures were dramatically unrepresentative of the political views of the individual workers whose money was used: 40 percent or more of union households typically vote Republican.
California's recently defeated Proposition 226 was in large part an attempt to curb this power of unions to use their members' dues and fees, without their consent, for political purposes. This targeted effort at campaign finance reform raised a fundamental constitutional question: who is primarily responsible for political action, individual citizens or groups purporting to act in their interest? In other words, who is primarily responsible for controlling the government? In short, who is sovereign?
Despite the defeat of 226, the issue of paycheck protection will not disappear. Nor should it, in light of its ramifications for democracy. This paper will place the issue in legal and constitutional context, and recommend ways to address it.
The Legal Context: "Right to Work, Laws and Beck Rights"
Some states today have "right to work" laws which stipulate that workers can neither be required to pay money to a union if they do not wish to join, nor be fired for making this choice. But the majority of states, including California, don't afford such protections. In these states, although workers cannot be compelled to join a union, they can be required to pay money to a union regardless of membership. Under the National Labor Relations Act (NLRA), workers in these non-"right to work" states who decline to join unions can still be compelled to pay "agency fees" to unions having collective bargaining agreements with their employers.
The U.S. Supreme Court upheld this "agency fee" requirement in a 1988 decision called Communications Workers of America v. Beck (hereinafter referred to as Beck). But this decision also stipulated that the NLRA authorizes the exaction of only those fees and dues necessary to performing the duties of an exclusive representative of the employees in dealing with the...employer on labor-management issues. In other words, "agency feesî" collected by the union from non-members must be limited to the amount spent directly on collective bargaining, grievance procedures and contract administration. Thus Beckówhich, notably, was written by liberal, Justice William J. Brennanópaved the way for workers to reclaim any portion of their union fees spent on politics.
Does Beck provide sufficient paycheck protection for workers in non-"right to work" states? The evidence suggests not. Over ten years after theÝdecision was handed down, it remains very difficult for workers to exercise their Beck rights. There are two main reasons for this. First, polls show that a large majority of workers are still not aware they have these rights. Second, there is serious dispute over what percentage of total union dues and fees are spent directly on collective bargaining, grievance procedures and contract administration, i.e., over the legitimate level at which unions may set "agency fees" for non-members. Union finances are intentionally very murky.
It would seem that the first problem in enforcing Beck rightsóworker ignorance of the existence of these rightsócould be simply remedied. Indeed, President Bush appeared to have begun to do so by issuing an executive order for federal contractors to post notices of Beck rights at work sites. But President Clinton, immediately after taking office in 1992 (and after benefiting from enormous financial support by unions), rescinded this order. This demonstrates that an important part of securing any of ourÝrights is the political will of our representatives to respect them. The second problem in enforcing Beckóensuring union honesty about what percentage of union dues and fees go to ìdealing with the...employer on labor-management issuesîóappears even thornier.
In light of these obstacles to enforcement of Beck, paycheck protection initiatives like Proposition 226, which sought to require unions to obtain prior written consent on an annual basis from workers in order to use their dues and fees for political purposes, seem to offer the possibility of only partial success as well. They still leave room for unions to dissemble, and corrupt public officials can always ignore or defy the law.
"Corporatism" and the Extraordinary Legal Standing of Unions
In order to understand fully the difficulty of addressing the issue of paycheck protection, it is necessary to consider at least briefly the genesis of U.S. labor law as reflected in the NLRA. This law is a product of "corporatist" theory that came into vogue with the New Deal. By this theory, individual Americans in whom rights were traditionally understood to inhere, and political power to reside--are essentially subsumed by interest groups. These interest groups wield their member's rights and deploy their members' political power in what their leaders see as their members' interests. Needless to say this process is watched over by federal regulators, whose job is to maintain these interest groups, e.g., "business' and labor", in what they consider proper balance.
The law that grew out of such "corporatist" thinking clearly aimed at protecting the rights or standing of these interest groups rather than, and sometimes to the detriment of, individual rights. Labor unions, for example, were statutorily protected from class-action lawsuits, and employers were restricted from providing employees information on the advantages of non-unionism. As for the extraordinary grant of power to unions to compel workers to join them or pay them money in order to work, it was based on the so-called "free rider" theory. That is, workers who choose not to join a union, but maintain their job, nevertheless benefit from collective bargaining. This is unfair, according to the theory. Therefore even non-union members should be required to pay.
The problem with this theory is that it presupposes that unions are analogous to a "public good" such as national defense, from which all Americans truly benefit and for which all must share the cost. This analogy is false on two levels. First, unions are obviously not a public good in the same sense as national defense: they represent or benefit only one segment of society. Second, unions are not even a public good in the narrow sense of representing or benefiting the entire segment of society comprising their membership: consider again the fact that unions spend huge amounts of their members' money on political candidates and causes that large minorities or even majorities of those members oppose.
The only argument that would justify the legally-sanctioned power of unions to use workers' compulsory dues and fees in this way is that union leaders know better what are the interests of workers than the workers themselves. This has been the argument of communist theorists and parties from Marx on: there must be a dictatorship of the proletariat, because the proletariat doesn't know its own good. And indeed, there was an element of this in the "corporatist" theory that underlies current labor law. But as we will see below, it is foreign to and destructive of democratic principles.
As long as labor unions are granted special status by the law, enabling them to compel workers to join or pay any dues or fees whatsoever, court decisions such as Beck and paycheck protection legislation will offer only partial remedy to workers, for the reasons cited in the last section. Only the passage of "right to work" laws in California and all other states that do not yet have them, or a national "right to work" law, will offer full protection to workers by assigning unions the status of other private associations in which membership and dues-paying are voluntary. At that point unions can rightfully spend their money as they wish and enforcement of "Beck rights" and "paycheck protection" will be rendered unnecessary.
The Constitutional Context: Consent, Representation and Free Speech
To understand the seriousness of the issue of paycheck protection, it is appropriate to consider it in the context of three of our most fundamental constitutional principles.
The principle of consent follows from the principle of human equality or equal rights. Consent is the only legitimate basis of government because no man is by nature so superior to another as to rule him without his consent. Any man who thinks carefully and rationally about human nature will favor democracy, the idea that each citizen has a right to be consulted and to take part actively in political decision-making. The taking and spending of a citizen's money for political causes that he or she does not support violates this principle of consent, whether it is undertaken by union leaders or any other elite group or individual.
The principle of representation describes how the requirements of consent are fulfilled in our democracy. Americans demonstrate their ongoing consent by electing representatives. As James Madison explains in Federalist 10, this system acts "to refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations."
From this perspective there are two problems with the political use of compulsory union dues or fees. First, the responsibility of consent and the right to support candidates and campaigns of one's choice are unalienable. It is just as undemocratic for Americans to be forced to surrender this responsibility and this right to union leaders as it would be to business CEOs or any other elite group or individual.
Second, current union campaign finance practices serve the very narrow and factional interests that representation as described by Madison is supposed to minimize. Again, recall that political expenditures by unions go almost entirely to one party, whereas union membership reflects a much more even split between parties. In fact, unions and other groups purporting to represent their members' "class interests" will always fall short of true representation, because people are not defined by their class. For one thing, in America people move rapidly between classes even within single generations. For another, class is irrelevant with regard to broad political issues like abortion and national defense, to name just two.
Finally, the principle of free speech is violated when union leaders use compulsory dues and fees in ways opposed to the deeply held views of theirÝmembers. Here we must recognize forthrightly that, in this or any large society, campaign money is a means to the end of political speech. To spend a person's money on politics is to speak for that person politically. No one ought to be able to do that in a way in which that person disagrees.
Recommendations (in order of short-term to long-term)
Citizens should demand that their elected representatives oversee theNational Labor Relations Board and the Department of Labor in a way to ensure that they carry out their mandate to inform workers of their legal rights under the Beck decision. Correspondingly, they must elect leaders who respect these rights and other fundamental democratic rights.
Individual workers aggrieved by union practices should commence legal actions to ensure their existing Beck rights are enforced.
In the absence of "right to work" laws, some form of paycheck protection legislation is desirable. Certainly the best way to achieve this is through normal legislative channels, that is, by demanding that state legislators and congressmen support laws that would combine the intent of Proposition 226 with the requirements set out in Beck. The law should require labor unions to obtain permission annually from workers to withhold money for purposes other than bargaining, contract administration, and grievance processing. It should also mandate that an independent auditor be allowed toÝmonitor union claims as to the percentage of fees which are chargeable for these purposes, before they are collected from employees.
(Note: The term "political purposes" or "political contributions or expenditures" should be avoided in paycheck protection legislation. There are too many ways for unions to redefine de facto political expenditures as "educational" or other non-covered expenditures. Allowable rather than prohibited uses of dues and fees should be explicitly listed.)
The long-term goal of paycheck protection advocates should be the passage of "right to work" legislation, nationally or in the states. Those who would oppose such legislation have a heavy burden: it is incumbent upon them to demonstrate that individuals should not be treated as free agents, capable of making effective decisions as to whether they wish to become union members and/or pay agency fees. The burden on supporters is of a different character. They must overcome the tremendous resources that will be deployed against them by union leaders and other beneficiaries of the status quo. More fundamentally, they will have to overcome the strong influence of "corporatist" thinking that is increasingly corrupting Americans' innate beliefs in individual rights, free speech and other bulwarks of democracy.
( Bradley C.S. Watson is an Adjunct Fellow at The Claremont Institute and a professor of Political Science and Military Graduate Programs, Norwich University.)
This number probably vastly underestimates actual union political spending. It represents only the additional earmarked expenditures of the AFL-CIO in 1996. It does not take into account what the organization typically spends on politics, nor the political spending of individual unions. Taken together, labor spending at the federal level alone was likely many times greater than this figure.
Communications Workers of America v. Beck, 487 U.S. 735 (1988).
For an excellent summary of the problems with the NLRA from the point of view of individual rights, see Sylvester Petro, Civil Liberty, Syndicalism, and the NLRA, 5 U. Toledo L.R. 447 (1974).
Future ballot initiatives should not be ruled out in principle. But we should recognize that initiatives tend to rely on a faulty understanding of representationóan understanding that the people are well represented only when their government responds immediately and directly to their wishes. The Founders of this country did not view representation in this light. We should try working within the system they gave us, attempting to persuade our legislators of the good that will come of their supporting constitutional principles. If we cannot persuade our current legislators, we should promote challengers who are in principled agreement with us. Let us recall the lesson of Beck: in the absence of representatives who share our principles, enforcement of laws upholding those principles is problematic.