McGeorge School of Law

Proposition 75

 
Proposition 75:
Public Employee Union Dues. Restrictions on Political Contributions.

By

Ira Gerald Clary Jr.
JD, McGeorge School of Law, University of the Pacific
to be conferred December, 2006
B.A., Organizational Studies, University of California, Davis, 2001

and

Nathan Barankin
JD, McGeorge School of Law, University of the Pacific
to be conferred May, 2006
B.A., Political Science, University of California, Davis, 1992

Copyright © 2005 by University of the McGeorge School of Law


Table of Contents

I. Executive Summary
II. The Law
III. Drafting Issues
IV. Constitutional Issues
V. Public Policy Considerations
VI. Conclusion


I. Executive Summary

Proposition 75 seeks to significantly change the existing rules governing public employee and union participation in political campaigns.

Under existing state law, once a majority of public employees within a bargaining unit have voted for union representation, the union is required to represent the interests of all workers within the bargaining unit. Public employee unions are authorized to collect dues and fees from their members and to collect a “fair share” fee from non-members who benefit from the unions bargaining services. Unless a non-member voices objection, unions may also use a portion of their fair-share fees for political purposes.

If approved by the voters, Proposition 75 will require public employee unions to obtain annual, written consent from each represented employee – including both union members and non-members – in order to charge and use a portion of his or her dues or fees for political purposes. California Official Voter Information Guide, Analysis of Proposition 75 (Secretary of State, 2005). The measure requires a specified form be used for this purpose and signed by the employee. Id. Unions would also be required to keep detailed records, including copies of all forms, records of the amount and dates funds are withheld from the employee, the amounts and dates the funds were transferred to a political committee, and the name of the committee to which the funds were transferred. Id.

This is not the first time the voters have been presented with a “Paycheck Protection” initiative. In the 1998 Primary Election, the voters rejected Proposition 226 which would have imposed similar requirements on all labor unions, not just public employee unions. There are five states with so-called “paycheck protection” statutes – Idaho, Michigan, Utah, Washington and Wyoming. Andy Furillo, Unions have Blunted Bids to Curb Political Spending, Sacramento Bee, A-1 (June 27, 2005). Only two states, Utah and Idaho, limit application exclusively to public employee unions. At least one state, Michigan, applies “opt-in” principles to both unions and public corporations.

The proponents argue that the measure is about fairness, while the opponents contend it seeks only to prevent unions from defending their interests in political campaigns. Both agree, however, that if Proposition 75 is enacted it will significantly affect future political campaigns in California.

II. The Law

A. Existing Law

Although workers have appreciated the value of banding together to improve and preserve their conditions of employment for centuries, it was not until the 1930s that the United States Congress created a statutory right for employees to formally organize and collectively bargain with their employers. National Labor Relations Board, The First Sixty Years, The Story of the National Labor Relations Board 1935-1995,. Employee organizations, or unions, have since evolved into sophisticated and complex private entities that not only provide “representational” services through direct negotiations with employers over wages, benefits and other conditions of employment, but also engage in “non-representational” activities through active participation in political causes deemed important to their membership.

In order to finance their activities, unions craft their own organizational rules for the collection of dues and fees from members and, if authorized by statute or pursuant to negotiated agreements, from non-members within the bargaining unit the union represents. Union elections and workplace conduct are also highly regulated under federal and state laws. Private sector employee organizational rights and protections are governed by the National Labor Relations Act (“NLRA”). 29 U.S.C. § 152 (1988) . The NLRA, however, specifically excludes public employees – those who work for federal, state and local governments – from its provisions. Id.

In California, a comprehensive statutory framework governs the rights and duties of public employees and their unions. California public school (K-12) and community college employees are governed by the Educational Employment Relations Act (EERA) of 1976. Cal. Govt. Code Ann. §§ 3540 – 3549.3 (West 1995 & Supp. 2005). State government employees are governed by the State Employer-Employee Relations Act of 1978, known as the Ralph C. Dills Act. Id. at §§ 3512 – 3524. California State University and University of California employees are governed by the Higher Education Employer-Employee Relations Act (HEERA) of 1979. Id. at §§ 3560 – 3599. Municipal, county and local special district employees are governed by the Meyers-Milias-Brown Act (MMBA) of 1968. Id. at §§ 3500 – 3511. In addition, union activity and employee rights in California are subject to the protections and limits established by both the State and Federal Constitutions.

1. Public Employee Unions and Exclusive Representation

Unions, like other private organizations, are authorized to organize their internal affairs as they see fit. As a general matter, public employee unions function democratically by allowing members to vote on union matters, including the ratification or rejection of proposed labor agreements and the election of union representatives who determine the amount of dues and fees to be paid by members of the union and how to allocate union funds. California Official Voter Information Guide, Text of Proposed Laws, Proposition 75 (Secretary of State, 2005). Dues collected from union members are used to finance the union’s bargaining and representational responsibilities. Id.

In order to ensure peaceful employer-employee relationships and avoid conflicting labor agreements among similarly situated employees, both the NLRA and California law allow employees to elect a union as the exclusive representative of all employees in a specified bargaining unit. See e.g. Cal. Govt. Code Ann. § 3512 (as applied to state employees); Chi. Teachers Union, Loc. No.1, AFT, AFL-CIO v. Hudson, 475 U.S. 292, 303 (1986) [“ Hudson”]. The elected union remains the exclusive bargaining agent for those employees unless and until a majority of union members vote to revoke this grant of authority to the union. See e.g. Cal. Govt. Code Ann. § 3520.5(c) (as applied to state employees). Once an exclusive representative has been elected, only the union is permitted to negotiate with the employer over wages, benefits, and working conditions on behalf of the bargaining unit.

2. The Free-Rider Problem and Agency Shops

Statutory rules governing union representation necessarily implicate First Amendment issues. Because a simple majority of employees can vote for union representation, absent unanimous agreement, those members of the bargaining unit who did not vote for the union are still subject to its representation. In order to protect the free association rights guaranteed under the First Amendment, state law gives public employees the right to refuse to join or participate in the activities of the elected union. See e.g. Cal. Govt. Code Ann. § 3515 (as applied to state employees). In other words, public employees can choose not to become dues-paying members of the elected union.

At the same time, a union elected as the exclusive representative is required to represent the interests of all employees within the bargaining unit – whether they are members of the union or not. See e.g. Cal. Govt. Code Ann. §§ 3515.7 & 3519.5(b) (union commits an unfair labor practice by discriminating against employees in the bargaining unit who exercise their right not to join the union). Absent a statute to the contrary, non-union members can avoid paying membership dues and still benefit from the representational services provided by the union to obtain more favorable wages, benefits and working conditions.

In order to address this “free-rider” problem, state law authorizes, as a condition of employment, the deduction of a “fair share” payment from every employee in the bargaining unit who declines to become a union member in order to defray the costs associated with contract negotiation, administration, and other activities germane to its functions as the exclusive bargaining representative. Cal. Govt. Code §§ 3513(k) & 3515.7(a) (for state employees); § 3546 (for educational employees); § 3583.5 (for higher education employees). These fair-share fees cannot exceed the amount of dues imposed on union members. See e.g. Cal. Govt. Code Ann. § 3540.1(i)(2) (as applied to K-12 employees). Statutes which authorize the collection of fair-share fees from non-members are often referred to as “agency shop” provisions.

Although these compelled payments to the union burden the First Amendment rights of non-members, the United States Supreme Court has found constitutional agency fee statutes as applied to public employees. Abood v. Det. Bd. of Educ., 431 U.S. 209, 225-26 (1977) [“Abood”]. The court held that the policy of exclusive representation promotes the government interest of obtaining labor peace and the imposition of agency fees on non-members furthers that objective by eliminating the free-rider problem. Id. at 220-22. For most public employees, membership dues and fair-share fees are automatically deducted each month from their paychecks.

3. Use of Union Dues and the Rights of Union Members v. Non-Members

Union-imposed dues and fees are generally used to fund representative purposes such as collective bargaining activities and other efforts to improve wages, hours and benefits for bargaining unit members. Public employee unions may also use a portion of the revenue for non-representational purposes such as campaign contributions to support or oppose political candidates and issues. Analysis of Proposition 75.

a. The Rights of Union Members

Under California law, public employee unions are free to set their own standards for membership, including requiring the payment of dues and fees as a condition of membership. See e.g. Cal. Govt. Code § 3515.5 (as applied to state employees). At least one federal court has held that voluntary union members have no right to object to the payment of dues that are used for either representational and non-representational purposes. Kidwell v. Transp. Commun. Intl. Union, 946 F.2d 283, 300 (4th Cir. 1991), cert. denied, 503 U.S. 1005 (1992).

Three public employee unions in California currently give union members the option of preventing the use of their dues for political purposes. The California Teachers Association, the California State Employees Association and the California School Employees Association each have adopted “opt-out” provisions to their bylaws allowing union members to prevent their share of dues from being spent on specified political causes. Real Parties’ Memo. of Points and Authorities in Opposition to Cross-Compl. at 7, Hard v. Lockyer , No. 05 CS 01161 ( Sacramento Sup. Ct. August 2005). In the absence of such a provision, union members are required to pay the full amount of their dues – unless they resign membership – and may object to the use of union funds only by exercising their voting rights.

Union members are often given exclusive rights to participate in union matters and obtain specified benefits. For instance, only members may be authorized to vote on whether to strike, ratify contracts and elect representatives. See e.g. SEIU Local 1000, Answers to Objections to Joining the Union, (accessed Sept. 28, 2005). Members may also be entitled to specified benefits funded directly by the union itself, such as group insurance plans and legal services. Id.

b. The Rights of Non-Members

Although non-members are not prohibited from supporting the union’s political activities and member-only benefits, state law and decisions by the California and United States Supreme Courts protect the right of non-members to control the union’s use of their fair-share fees for non-representational purposes. See e.g. Abood, 431 U.S. at 234 (dissenting non-union employees have a First Amendment right to prevent a union from using agency fees for certain political and ideological purposes unrelated to collective bargaining activities); Ellis v. Bhd. Of Ry. Clerks, 466 U.S. 435, 444 (1984) [“Ellis”] (a union cannot use dissenting employees agency fees for prohibited purposes even temporarily subject to reimbursement); and, Hudson, 475 U.S. at 310 (union must provide specific procedural safeguards allowing employees to make informed decision on whether to dissent to, or request reimbursement for, specified use of agency fees).

Because non-member First Amendment rights are at stake, the U.S. Supreme Court has held that strict procedural safeguards must be followed before non-member fair-share fees may be used for non-representational purposes. Hudson, 475 U.S. at 303. First, the union must provide non-members with detailed descriptions of its expenditures, verified by an independent audit, sufficient for non-members to determine how their money is being spent. Id. at 310. Second, non-members must be given a reasonably prompt opportunity to challenge the amount of the fee before a neutral decision-maker. Id. Finally, any amounts of the fee reasonably in dispute must be placed in escrow pending the resolution of any challenges. Id. This three-part test was formally incorporated into California constitutional law three years later by the state Supreme Court. Cumero v. Pub. Empl. Rel. Bd., 49 Cal. 3d 575, 590 (1989). State statutes further specify the method public employee unions must use to fulfill their “ Hudson” requirements. See e.g. Cal. Govt. Code § 3546.5 (as applied to K-12 employees).

A non-member also has the right to prevent the union from using, even temporarily, any of his or her fair-share fees for non-representational purposes. Ellis, 466 U.S. at 443. Once the union is informed of the non-member’s objection to such use, it must reduce his or her fair-share fees by the amount used to fund non-representational activities. See e.g. Cal. Govt. Code Ann. § 3546(a) (as applied to K-12 employees).

c. Representational v. Non-Representational Purposes

Non-members do not have the right to object to, or receive reimbursement for, representational expenditures made by the union. Such expenditures are commonly referred to as “chargeable activities.” Under state law, public employee unions are allowed to use agency fees for the purpose of lobbying activities “designed to foster collective bargaining negotiations and contract administration, or to secure for the represented employees advantages in wages, hours, and other conditions of employment in addition to those secured through meeting and negotiating with the employer.” See e.g. Cal. Govt. Code § 3546(b) (as applied to K-12 employees).

For purposes of First Amendment analysis, the United States Supreme Court has established a three-part test for assessing the constitutionality of chargeable activities. Lehnert v. Ferris Faculty Assn., 500 U.S. 507, 519-33 (1991) [“Lehnert”]. The court acknowledged that the line between chargeable and non-chargeable activities by public employee unions is “somewhat haz(y)” because achieving employee benefits often requires more than mere negotiations, but also subsequent budgetary action by legislative bodies, the governor and, potentially, the voters. Id. at 518. In order to be non-reimbursable, the use of the fee must: (1) be germane to collective bargaining activity; (2) be justified by the government’s vital interest in labor peace and avoiding “free riders” who benefit from union efforts without paying for union services, and (3) not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop. Id. at 519-33.

4. The Definition of Political Campaign Committees and Contributions

California law defines political campaign committees as those which receive contributions of at least $1,000 in a calendar year. Cal. Govt. Code Ann. § 82013. A “contribution” is defined as a payment made for political purposes. Id. at § 82015(a). State law and interpretations by the Fair Political Practices Commission (“FPPC”) provide that payments made to expressly advocate for the election or defeat of a candidate for state or local office or to support or oppose a state or local ballot measure are campaign contributions. Id. at §§ 82015(b)(2)(B)(iii) & (b)(2)(C)(i)-(viii); Fair Political Practices Commission, Candidates and Committees, (accessed October 10, 2005). Payments that are made principally for legislative, governmental, or charitable purposes are not contributions. Cal. Govt. Code Ann. §§ 82015(b)(2)(B)(iii) & (b)(2)(C)(i)-(viii).

B.The Effects of Proposition 75

Proposition 75 would impose a variety of new duties on public employee unions pertaining to the collection of dues and fees used to make contributions to political campaigns. The impact the measure ultimately has on spending to influence political decisions, however, may be limited.

1. Proposed Changes

Public employee unions would be required to obtain annual, written consent from every employee in the bargaining unit, including both union members and non-members, before it could use any portion of their dues or fees for political campaign purposes. Proposition 75.

The measure requires public employees to specify the amount, if any, of their dues or fees that may be used for political purposes. Id. Only those amounts specified by each public employee can be used for political campaigns. Id. If the union previously used any portion of union dues or fair-share fees for political purposes, employees who do not sign an authorization form must have their dues or fees reduced by the amount used for that purpose. Id.

Proposition 75 also requires that a new form, using specific language in precise font-sizes, be used by the union to obtain the employee’s consent. According to the proposed statute, the form’s title must be printed in 24-point bold type as, “Consent for Political Use of Dues/Fees or Request to Make Political Contributions.” In at least 14-point bold type the following specific text must also be included:

Signing this form authorizes your union to use the amount of $____.00 from each of your dues or agency shop fee payments during the next 12 months as a political contribution or expenditure.

Signing this form requests your union to make a deduction of $____.00 from each of your dues or agency shop fee payments during the next 12 months as a political contribution to the [name of committee].

The form must be signed and dated by the public employee and a union official, however it cannot include the employee’s home address or telephone number. Id.

The public employee union would not be required to obtain prior employee consent for use of his or her dues or fees to benefit charitable organizations, secure health care insurance, or obtain other members-only benefits provided by the public employee union. Id.

Proposition 75 also imposes significant new record-keeping requirements on public employee unions. Unions that use at least $1,000 of public employee dues or fees for political purposes would be required to maintain specified records, including copies of each consent form received. Id. These records shall not include the employee’s home address or telephone number. Id. Although they would be exempt from the California Public Records Act, upon request, the public employee unions must provide copies of the records to the Fair Political Practices Commission (“FPPC”). Id.

In addition to the consent forms, public employee unions would be required to record the amount and dates funds were actually withheld, the amounts and dates the funds were transferred to a committee, and the committee to which the funds were transferred. Id. The measure also specifies that public employees who do not authorize the union to collect any of their dues or fees for political campaigns cannot have their dues increased “in lieu of” that contribution. Id.

2. A Lobbying Loophole for Issue Advocacy that May Limit the Impact of Proposition 75

Proposition 75’s employee consent requirements would only apply to union dues or fees used for political campaign purposes. Under existing law, political contributions do not include payments made for the purpose of influencing the legislature or other government officials which do not expressly advocate for the election or defeat of a candidate or ballot measure. Cal. Govt. Code Ann. §§ 82015(b)(2)(B)(iii) & (b)(2)(C)(i)-(viii); Fair Political Practices Commission, Candidates and Committees, (accessed October 10, 2005). In light of the substantial expenditures public employee unions have made to influence public opinion and government action unrelated to political campaigns, Proposition 75’s limited application may not affect the amount of dues and fees public employee unions can collect from represented employees without their consent.

In addition to their collective bargaining activities, public employee unions have sought to represent the interests of their members through lobbying and issue advocacy campaigns. For instance, the California Teacher Association (“CTA”) reported spending $8.2 million of employee dues and fees during the first six months of 2005 for the purpose of influencing government action. Dan Smith, Prop. 75 loophole limits its impact, Sacramento Bee, A-1, (Sept. 28, 2005). The money was used for television and radio advertisements in January 2005 which called on Governor Arnold Schwarzenegger to “stop balancing the budget on the backs of our children.” Id. Although the ads arguably injured the political popularity of the Governor, the funds used to purchase them were not considered political campaign contributions because the ads did not specifically advocate for the election or defeat of a candidate or measure.

The proponents and opponents of Proposition 75 appear to agree that the measure would not limit the ability of public employee unions to collect dues and fees without employee consent for the purpose of issue advocacy. Lewis Uhler, the author of Proposition 75, said the measure was intentionally drafted to exclude issue advocacy. Id. Uhler explained, “In terms of advocacy, we’ve never taken the position that they (public employee unions) can’t advocate on issues of importance. (Restricting) lobbying would have been overreaching.” Id .

3. Still Likely to Reduce Money

Even if Proposition 75 does not apply to issue advocacy, the measure will likely reduce the amount of money public employee unions have available to contribute to political campaigns. According to the proponents of Proposition 75, after implementing an employee consent law in Washington state, the percentage of public school employees that contributed to their union’s political causes dropped from 80 percent to 11 percent. Decl. of Michael J. Reitz, Hard v. Lockyer, No. 05 CS 01161 ( Sacramento Sup. Ct. August 2005). In Utah, the percentage of public school employees making political contributions dropped from 68 percent to 6.8 percent. Id. In the absence of an employee consent requirement in California, 40 public employee unions contributed $52.2 million to candidates and causes through 120 political committees during the 2003-04 legislative session. Andy Furillo, State worker unions flexing muscle, Sacramento Bee, A-1 (Sept. 26, 2005). If Proposition 75 is approved and California’s public employee unions experience the reductions seen in other states with employee consent laws, the amount of money available for political campaigns may diminish significantly.

The measure would also prohibit public employee unions from unilaterally imposing increased dues on represented employees in order to quickly obtain funding for political campaigns. For example, CTA recently enacted a three-year, $60-per-member increase in dues and fees that will be used to finance its estimated $50 million campaign in opposition to several measures on the November Special Election ballot. Andy Furillo, Suit challenges union fundraising bid, Sacramento Bee, A-3 (Sept. 25, 2005). The proponents of Proposition 75 allege that because the union will not actually receive the money from the increase until several years from now, it is being used to secure loans that can be applied to this November’s election. Id. If Proposition 75 is approved, public employee unions will not be able to accurately forecast how many employees will consent to the use of their dues for political purposes and, therefore, will be hampered in their ability to participate in political campaigns.

III. Drafting Issues

A. Specific Ambiguity with the Consent Form

Proposition 75 prescribes that a specific consent form be provided to employees who choose to contribute a portion of their dues or fees to political purposes through a named political committee. The form leaves a blank where the name of a political committee can be filled in, but it does not specify whether it is the employee or the union who is allowed to specify the committee. During the course of pre-election litigation, the proponents and opponents of the measure disagreed about whom has the right to fill in the name of the committee. However, the superior court did not conclusively resolve the issue. Hard v. Lockyer , No. 05 CS 01161 ( Sacramento Sup. Ct. August 2005) [“Hard”]. As a result, a post-election challenge over the matter may result if Proposition 75 is approved.

In Hard, the opponents of Proposition 75 claimed that the measure requires each individual employee to select the political committee he or she wishes to receive the contribution. The opponents argued that requiring an employee to make such a designation would implicate privacy issues by disclosing the employee’s “political views” on a document that could be circulated around the workplace. Verified Pet. for Writ of Mandate, Hard v. Lockyer, No. 05 CS 01161 ( Sacramento Sup. Ct. August 2005). The opponents reasoned that an employee’s selection of a specific political committee is enough to “glean the political predilections of a person.” Real Parties’ Memo. of Points and Authorities in Opposition to Cross-Compl. at 9, Hard v. Lockyer , No. 05 CS 01161 ( Sacramento Sup. Ct. August 2005). This interpretation of the measure prompted the opponents to include the following passage in their proposed argument against Proposition 75 to be published in the Official Voter Information Guide:

Proposition 75 requires members who want to participate to sign a government-imposed personal disclosure form that could be circulated in the workplace. This form, with personal information about employees and their political views, could be accessed by a state agency – an invasion of individual privacy …

In response, the author of Proposition 75, Lewis Uhler, complained that the opponent’s argument was false or misleading and, therefore, should be deleted or amended. Cross-Compl. of Verified Pet. for Writ of Mandamus, Hard v. Lockyer, No. 05 CS 01161 ( Sacramento Sup. Ct. August 2005). Uhler claimed that it is clear that unions, and not individual employees, are entitled to name the political committee. Cross-Complainant Lewis Uhler’s Reply to Opposition to Cross-Compl. at 7, Hard v. Lockyer, No. 05 CS 01161 ( Sacramento Sup. Ct. August 2005). Uhler reasoned that the consent form only impacts those instances where a union seeks authorization to use employee dues or fees for political expenditures, not when the employee seeks to voluntarily contribute to the union’s political activities. Cross-Complainant Lewis Uhler’s Reply to Opposition to Cross-Compl. at 7, Hard v. Lockyer, No. 05 CS 01161 ( Sacramento Sup. Ct. August 2005). Thus, Uhler claimed, the privacy rights of employees are not implicated because unions will only request authorization to make a deduction to its own committee or a committee it supports. Id.

The trial court rejected Uhler’s demand the opponent’s ballot argument be deleted, but did not resolve the question of whether it is the employee or the union who is entitled to fill in the name of the chosen political committee. Tentative Ruling on Petition for Writ of Mandate and Related Cross-Complaint, Hard v. Lockyer, No. 05 CS 01161 ( Sacramento Sup. Ct. August 2005). However, the court did order that the language in the disputed argument against Proposition 75 be amended to replace “political views” with “political contributions.” Id. By finding that only an employee’s “political contributions” will be potentially disclosed by the consent form, the court’s order suggests that the union is solely responsible for naming the specified committee, and the employee is solely responsible for identifying the amount he or she wishes to contribute.

B. Severability

Proposition 75 contains a severability clause which purports to allow provision(s) to be severed from any portions of the initiative later found invalid. Proposition 75. The severability clause states:

SEC. 7. If any provision of this measure, or part thereof, is for any reason held to be invalid or unconstitutional, the remaining provisions shall not be affected, but shall remain in full force and effect, and to this end the provisions are severable.

The Supreme Court of California has held that, “Although not conclusive, a severability clause normally calls for sustaining the valid part of the enactment. …” Calfarm Ins. Co. v. Deukmejian, 771 P.2d 1247, 1256 ( Cal. 1989). However if the validity of the remaining parts of the enactment are challenged, the California Supreme Court has developed a three part test to determine whether the remaining provision(s) can be severed from the invalid sections of the initiative. Gerken v. Fair Pol. Practices Commn., 6 Cal. 4th 707 ( Cal. 1993) [“Gerken”]. The severable provision(s) must be (1) grammatically, (2) functionally, and (3) volitionally separable. Id.

Each part of Chapter 5.9, section 85990 to Title 9 of the Government Code could be severed grammatically without affecting the understanding of the other provisions. Proposition 75 appears to have one purpose and intent in adding Chapter 5.9; namely, to guarantee the right of California public employees to have a say whether their dues and fees may be used for political campaign purposes. However, each part of Chapter 5.9 is a detailed step or formality in guaranteeing the right of the California public employee to have a say if their dues or fees go to political campaign purposes and cannot be functionally severed without impeding the function of the other provisions unless the invalid provision is deemed to be an unnecessary formality.

Further, severing Proposition 75 will not stand up to the volitionally separable part of the Gerken test unless the voters would have individually considered voting on the severable section. In Gerken, the court stated in order for the provision to be volitional, the test is “whether it can be said with confidence that the electorate’s attention was sufficiently focused upon the parts to be severed so that it would have separately considered and adopted them in the absence of the invalid portions.” Id. at 714. Therefore, unless the invalid provision is found to be an unnecessary formality, the court would mostly likely not be able to say with confidence that the electorate of Proposition 75 would individually adopt one provision without the others because it would leave out a step in guaranteeing that California public employees will have a say in whether they pay dues or fees used for political purposes. If a court agrees with this analysis, it could potentially find that the voters of California could not read and distinguish the different provisions independently and would have no choice but to invalidate the entire proposition.

C. Future Changes

Proposition 75 would permit the Legislature to amend the measure with a two-thirds vote of both houses so long as the amendment furthers the purpose of this proposed law. Analysis of Proposition 75 . The California Constitution states that an initiative may only be amended or repealed “when approved by the electors unless the initiative statute permits amendments or repeal without their approval.” Cal. Const. art. II, § 10(c). The language in Section 9 does exactly that. Id. By voting for this proposition, the people are giving their permission and agreeing to this provision to allow the Legislature to amend this code. The condition that the amendment must further the purpose of the proposition could, however, be open to interpretation.

IV. Constitution Issues

A. Federal Constitution

Because Proposition 75 will likely have a significant impact on the ability of public employee unions to participate in political campaigns, if it is approved by the voters the opponents may challenge it on both First Amendment and equal protection grounds.

1. First Amendment

Legal challenges to state and federal statutes authorizing exclusive representation and agency shops for unions have focused on the First Amendment rights of employees who are compelled to be represented by the union but who choose not to become members. The U.S. Supreme Court has acknowledged these statutes infringe on the First Amendment rights of non-members, but has found them constitutional so long as specific procedural safeguards are implemented that allow the non-member to object to non-representational uses. Hudson, 475 U.S. at 303. The First Amendment analysis may be different, however, if a union member challenges a statute which burdens the union’s ability to use member dues and fees for political purposes.

At least one federal district court has held unconstitutional a proposed statutory initiative that prohibits a union from compelling an employee, as a condition of membership, to pay dues or fees in support of political causes. Nevadans for Fairness v. Heller , 1998 WL 357316 ( Nev. Dist. Ct.) (unpublished) . Nevada state law prohibits exclusive representation agreements and, therefore, employees cannot be compelled to agree to union representation or membership. The court held, however, that once a worker voluntarily chooses to become a union member, the union’s First Amendment right to regulate their internal structure permits them to refuse membership if a portion of dues used for political purposes is not paid. The court reasoned that, “…if a worker exercises his or her personal free agency and voluntarily joins a labor organization and voluntarily pays dues then there is an obligation to support the decisions of the majority.” Id. By requiring unions to obtain prior consent from members before using their dues for political purposes, opponents may claim that Proposition 75 unconstitutionally restricts the union’s organizational right to set dues or fees as a condition of membership.

Similarly, the 4th Circuit Court of Appeal has held that where an employee voluntarily joins the union, the union’s First Amendment right to expressive association allows it to collect membership dues from that employee and use it for non-representational purposes. Kidwell v. Transp. Commun. Intl. Union, 946 F.2d 283, 299 (4th Cir. 1991) [“Kidwell”]. In Kidwell, a union member objected to the union’s use of her dues for political and ideological purposes. Id. at 285. The court rejected the union member’s First Amendment claims and reasoned that, “[i]f she chooses to join the union, she is no longer an involuntary contributor and may be bound by the will of the majority.” Id. at 300. Although some public employee unions currently allow members to opt-out of paying for non-representational activities, the 4th Circuit’s reasoning suggests that they are in no way obligated, as a matter of constitutional law, to do so. This reasoning also has been followed by federal district courts in California. See e.g. Farrell v. Intl. Assn. Of Firefighters, 781 F.Supp. 647, 649 (N.D. Cal. 1992); Masters v. Screen Actors Guild, 2004 U.S. Dist. LEXIS 27297 (C.D. Cal. 2004). By expressly allowing union members to opt-out of paying some portion of union-imposed dues, Proposition 75 may be challenged for unconstitutionally infringing on the right of unions to associate with those who are interested in contributing to non-representative activities.

Opponents may also challenge Proposition 75 on the basis that it unduly interferes with their First Amendment right to obtain funds to engage in protected speech. Under established U.S. Supreme Court precedent, content-based regulations are subject to strict scrutiny and must be narrowly tailored to further a compelling government interest. Turner Broad. Sys., Inc. v. Fed. Commun. Commn., 512 U.S. 622, 642 (1994) (referring to Perry Ed. Assn. v. Perry Loc. Educators' Assn., 460 U.S. 37, 45) . Because the annual consent requirements of Proposition 75 apply exclusively to public employee unions and not to other private unions or corporations, opponents may argue that such narrow targeting constitutes a content-based regulation. Although proponents of the measure contend that it is necessary to ensure that funds extracted from organization members are not used for political causes they do not support, the under-inclusiveness of the statute would likely cause a court that applies strict scrutiny review to find it unconstitutional.

Efforts to persuade a court to apply intermediate scrutiny may fail despite arguments that Proposition 75 only targets the “method” of collecting political contributions as opposed to the use of those contributions by public employee unions. Intermediate scrutiny is appropriate if the restriction on speech is content-neutral and it will be upheld so long as the statute furthers an important government interest and does not burden substantially more speech than is necessary. Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989). The Sixth Circuit Court of Appeal recently upheld a Michigan state law requiring annual consent from dues payers in the face of a First Amendment challenge by applying intermediate scrutiny. Michigan St. AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir. 1997). The court declined to apply strict scrutiny, in part, because the Michigan law applied “evenhandedly” to all for profit and nonprofit corporations as well as public and private unions. Id. at 1251. The court reasoned that it was appropriate to apply intermediate scrutiny because “[w]e discern no invidious attempt to limit contributions…to favor one class of voters over another.” Id. In contrast to the Michigan law, Proposition 75 excludes all other organizations other than public employee unions and therefore a court may find intermediate scrutiny inappropriate.

2. Equal Protection Challenge

Proposition 75’s exclusive application to public employee unions may also give rise to an equal protection challenge. The outcome of an equal protection challenge would likely turn on whether a court determines that Proposition 75 infringes on public employees’ First Amendment rights. State laws which treat similarly situated groups differently by burdening a fundamental right, such as the First Amendment, are subject to strict scrutiny and must be narrowly tailored to further a compelling government interest. Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985). Statutes which merely make a distinction that is not based on a protected class or fundamental right are subject to rational basis review and need only be rationally related to any conceivable legitimate state interest. Heller v. Doe, 509 U.S. 312, 320 (1993).

As noted above, a court that applies strict scrutiny to Proposition 75 may find its under-inclusiveness a basis for invalidating the statute. However, rational basis review will likely result in the measure being found constitutional.

In interpreting an Ohio state law that banned the use of automatic payroll deductions for public employee unions, the Sixth Circuit applied rational basis review after finding that the provision did not impair the union’s First Amendment rights. Toledo Area AFL-CIO Council v. Pizza, 154 F.3d 307 (6th Cir. 1998). The court held the provision did not impinge on First Amendment rights of public employee unions because the constitution does not require that the government provide the most effective methods for unions to engage in protected speech, it only prevents the state from enacting unconstitutional barriers to speech. Id. at 319. The court held that the state’s professed interest in removing partisan politics from places of public employment was a legitimate and rational concern. Id. at 322.

3. Lobbying: Chargeable or Non-Chargeable Activity?

The U.S. Supreme Court has established an analytical framework for determining what activities dissenting non-members may be required to support through agency fees. Lehnert, 500 U.S. at 514-19. In Lehnert, the court held that “chargeable” activities must: (1) be “germane” to collective bargaining activity; (2) be justified by the government’s interest in promoting labor peace and avoiding “free riders” who benefit from union efforts without paying for union services; and, (3) not significantly add to the burdening of free speech that is inherent in the allowance of an agency shop. Id.

Although a majority of the court agreed on the proper test, there was no majority that could agree on whether charging dissenters for lobbying activities was a proper expenditure under that test. At issue was a Michigan public employee organization’s use of dissenting, non-member employees’ agency fees to campaign for additional funds for public education in Michigan. Four members of the court found the expenditure inappropriate because it was not sufficiently related to “ratification of, or fiscal appropriations for” the union’s collective bargaining agreement with the state. Id. at 519-20. If public employee unions continue to use dissenting fee-payer dues for lobbying purposes, proponents of Proposition 75 may seek to challenge the practice under Lehnert.

B. California Constitution

Proposition 75 does not seem to have any State Constitutional issues that are distinguishable from the Federal Constitutional issues that may be raised.

V. Public Policy Considerations
A. Proponents’ Arguments in Favor of Proposition 75

1. Protects Public Employee Union Member’s Paychecks

Proponents of Proposition 75 argue there is a fundamental unfairness in California because public employees that belong to the unions are forced to contribute their “hard earned money” to political candidates or issues they may oppose. Californians for Paycheck Protection, Understanding the Issue, (accessed Sept. 11, 2004). They point out that union leaders make unilateral decisions to use public employee union dues to fund political campaigns without their employees’ consent by having the money automatically deducted from their paycheck. Id. Their solution, with the passage of Proposition 75, will require public employee unions to obtain written permission from their members before individual member’s dues are spent on political purposes. Californians for Paycheck Protection, Frequently Asked Questions, (accessed Sept. 11, 2004).

When asked why the measure is important, Californians for Paycheck Protection state on their website, “It is only fair that public employee union members have the right to give their permission before their hard earned dollars are used for political purposes that they may not agree with.” Id .

Currently, both members and non-members of the union pay a certain level of dues and/or fees to a union for their bargaining and representation services. Analysis of Proposition 75. In addition, union members are required to pay additional dues for various political purposes, including supporting and opposing political candidates and issues regardless of where they stand on the issue. Id. For example, proponents of Proposition 75 reference to a claim that despite opposition from more than 4,000 prison guards, their union increased dues by $18 million over two years to pay for political campaigns and to give to politicians. Id . In another example, they stress their point by using all capitals when stating, “WITHOUT A VOTE OF THE MEMBERSHIP,” the teachers union recently increased dues by $50 million over three years in order to fund political campaigns. Id .

If the initiative passes, union members who do not give their consent will see their paychecks increase as the money that was previously taken out of their paychecks for political activities is returned. Californians for Paycheck Protection, Frequently Asked Questions, (accessed Sept. 11, 2004).

2. Strengthens Public Employee Union Member’s Political Rights

Proposition 75 only affects dues that are spent for political purposes. Proponents stress that in no way does this measure affect public employee unions’ ability to collect dues that are used for charitable organizations, healthcare, or any other purpose. Californians for Paycheck Protection, Frequently Asked Questions, (accessed Sept. 11, 2004). Proponents further argue that this measure does nothing to restrict unions from participating in the political process of contributing directly to candidates and campaigns. Id.

In a rebuttal to an argument that Proposition 75 is an unfair attempt to diminish the voice of teachers, nurses, firefighters, and police, proponents argue that Proposition 75 will not prevent unions from collecting political contributions, but those contributions will be clearly voluntary. California Official Voter Guide, Rebuttal to Argument Against Proposition 75 (Secretary of the State, 2005).

As an example of the current mandatory system of dues leaving union members without a voice, proponents state that according to exit polling, nearly half of union voters voted “yes” on the recall and 56% voted for a Republican candidate. ( Los Angeles Times Exit Poll, October 2003). By contrast, not one dollar of public employee union campaign contributions was spent in support of recalling Governor Gray Davis or on behalf of Republican candidates. Id.

Essentially, it is argued Proposition 75 will strengthen public employee union members’ political rights by giving them the option of choosing whether they want their union dues spent on political candidates and campaigns. Californians for Paycheck Protection, Summary of the Initiative, (accessed Sept. 11, 2004).

B. Opponents’ Arguments Against Proposition 75

1. Silencing the Voice of Unions in Politics

Opponents of Proposition 75 claim that because many public employees already have the option to prevent their dues from being used for political purposes, and because non-members have a constitutional right to do the same, the measure’s real purpose is to erect practical and bureaucratic obstacles that will reduce the voice of public employee unions in political campaigns. California Official Voter Information Guide, Argument Against Proposition 75 (Secretary of State, 2005). Public employee unions argue Proposition 75 attempts to accomplish this goal in two ways. First, the measure will limit the amount of political funds unions receive by requiring employees to make their contribution decision at least one year before elected union representatives will know how they intend to use those political funds. Second, opponents contend that the consent forms and record-keeping requirements will make it extremely difficult for public employees to quickly respond to political campaigns that bear directly on bargaining issues such as hours, wages, benefits and conditions of employment.

Proposition 75 requires public employees to annually designate how much money they wish to contribute toward the political activities of their unions. At the time the employee is required to make this determination, the union may not be able to provide reliable information to the represented employee about what, if any, political causes the union may choose to support or oppose over the next twelve months. Confronted with this uncertainty, it is likely that public employees will either choose not to contribute, contribute a minimal amount, or simply choose to wait and see. The resulting reduction in the amount of political funds available to public employee unions will diminish their ability to participate in political campaigns.

Opponents also contend that the measure’s bureaucratic requirements will prevent public employee unions from responding to political threats on short notice. This November’s statewide election illustrates the opponents’ concern. The November 2005 special election was not officially announced until June 13, 2005. The Secretary of State did not announce which measures had qualified for the ballot until June 20, 2005. The Legislature was authorized to place measures on the ballot through legislation at least until June 30, 2005. In other words, there were only four months of pay-periods from the date the November special election was called to the date of the election. There were only three monthly pay periods between the date the Legislature could still place a measure on the ballot to the date of the election.

Among the measures appearing on the November 2005 ballot are proposals to impose spending limits on state-funded programs and to reform the method for creating legislative and congressional electoral districts. While these proposals are of great significance to all Californians, they are of keen interest to public employee unions and those they represent because their defeat or approval will affect bargaining topics and existing relationships with their public employers.

Opponents contend that even if every represented employee wanted to contribute toward a union committee to participate in these political campaigns, it would be procedurally impossible to obtain new consent forms from each employee and receive the contributions in time to actually participate.

2. Unfair to Target Public Employee Unions

Opponents argue that the measure selectively targets public employee unions, and not corporations, in an effort to reduce their influence in political campaigns. The opponents support their claim by drawing an analogy between unions and corporations. Opponents contend that unions use revenue collected from represented employees for political purposes in the same way that corporations collect and use money from shareholders. Public employee unions claim that it is unfair to require each individual who contributes to the union to pre-approve any campaign contributions while public corporations are not similarly required to obtain pre-approval from their owners – shareholders.

The “unfairness” argument is bolstered by a finding of the non-partisan Center for Responsive Politics that corporations outspent unions nationally 24 to 1, nationally, in political campaigns. Center for Responsive Politics, 2004 Election Overview, Business-Labor-Ideology Split in PAC & Individual Donations to Candidates and Parties, (accessed Oct. 13, 2005).

3. Measure Designed to Reduce Public Employee Benefits

Opponents contend that the measure is not about employee choice, but rather a concerted effort to reduce public employee union effectiveness on collective bargaining matters. In support of the claim, opponents point to a recent speech given by Governor Schwarzenegger in which he explained his support for Proposition 75 by noting that public employees’ end game is to “get more benefits for themselves, and more health care for themselves and all the things for themselves.” Andy Furillo, State worker unions flexing muscle, Sacramento Bee, A-1 (September 26, 2005).

To the extent the measure does not limit the union’s ability to collect dues and fees from all represented employees for lobbying purposes, it would seem that union influence with policymakers will not be dramatically diminished. However, restrictions on the ability of public employee unions to help elect candidates who are sympathetic to their collective bargaining issues may result in fewer elected officials who are willing to support labor agreements that provide improved “benefits” and “health care” for working people.

VI. Conclusion

Proposition 75, if passed, has the purpose to amend state statutes to require public employee unions to get annual, written consent from a government employee in order to charge and use that employee’s dues or fees for political purposes. Analysis of Proposition 75 . The requirement would apply to both members and nonmembers of a union. Id. The measure would also require unions to keep certain records, including copies of any consent forms. Id.

Proponents of Proposition 75 argue that the measure protects the paychecks of public employees and strengthens their political rights. California Official Voter Guide, Argument in Favor of Proposition 75 (Secretary of the State, 2005). The arguments in favor of Proposition 75 can be found in greater detail at .

Opponents of Proposition 75 argue that the measure’s real purpose is to erect practical and bureaucratic obstacles that will reduce the voice of public employee unions in political campaigns. Argument Against Proposition 75 . They also contend that the measure’s bureaucratic requirements will effectively prevent public employee unions from responding to political threats on short notice. No on Prop 75, Resources, (accessed Sept. 11, 2004). Lastly they argue that it is already unfair that unions get out spent 24 to one by corporations on political campaigns. Id. The arguments against Proposition 75 can be found in greater detail at .