Erwin Chemerinsky’s sad criticism of Knox v. SEIU

Dean Erwin Chemerinsky published this article last week on the ABA Journal’s website complaining about the Supreme Court’s decision in Knox v. SEIU. That’s the case in which the Supreme Court said that the union must ask non-members before it takes away their money to run a political campaign. As I explain here, the rule had previously been that people who objected to having their paychecks docked to subsidize union political activities bore the burden of raising an objection and going through an expensive, time-consuming refund process. In Knox, the Court agreed with PLF that this was contrary to long-standing First Amendment precedent, which said that courts must not presume that people mean to give up their expressive freedoms.

There was a time when liberal lawyers believed that laws that infringe on speech and other rights central to the democratic process should be regarded with skepticism by the courts. In Knox, these concerns should be particularly heightened, since the union was taking non-members’ money in order to run a campaign opposing a California ballot initiative which would have imposed an opt-in requirement so as to protect those same non-members. In other words, the union was forcing people to subsidize a campaign in favor of forcing people to subsidize campaigns! Under the rule of the famous Footnote Four—once regarded as gospel by liberal constitutional lawyers—such efforts to “restrict[] those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” and “curtail the operation of those political processes ordinarily to be relied upon to protect minorities” deserve to be struck down, and the Supreme Court did so in Knox.

But nowhere in his article does Dean Chemerinsky express any consideration whatsoever for the rights of non-member dissenters who would prefer not to subsidize political campaigns with which they disagree. For him, it’s a simple case of the unions in the white hats versus the greedy corporations in the black hats. This simplistic us-against-them view leads him to his most remarkable claim: that the Knox decision is “ironic” because while unions are required to ask consent before spending non-members money on political campaigns, corporations are free to spend shareholders’ money on political campaigns. “If the Supreme Court is going to require opt-in for unions, it seems only fair and appropriate that the same be required for corporate political spending.”

Such Occupier rhetoric ignores the most essential question in the Knox case, which was the issue of consent. Corporations are already required to follow an opt-in rule, because unlike unions, they do not have a special legal privilege to take money directly from people’s paychecks against their will! They can’t spend non-shareholder money, the way that unions are empowered to take and spend the earnings of non-members. A shareholder who objects to the political activism of a corporation can sell his shares, and refuse to have anything to do with that corporation. But a person who had chosen—typically in the face of hostile peer pressure and possibly threats of violence—not to join a union, had no comparable alternative when the union decided to seize his money to spend on a political campaign aimed and further curtailing his First Amendment rights. The Knox case rectifies that by putting unions a little bit more on a level with the rule corporations are already required to follow: that is, respecting the free speech rights of individuals.

Dean Chemerinsky’s effort to obscure this obvious point is bad enough, but the fact that it is further evidence of the left’s continuing drift away from its older concerns for (some) individual rights is more worrisome. There was a time when liberal lawyers and judges, whatever their faults otherwise, at least took expressive rights very seriously. But each day we see the left growing less and less sensitive to the needs of a robust, open regime of free speech.