BILL ANALYSIS Ó AB 1179 Page A Date of Hearing: May 4, 2011 ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT Sandre Swanson, Chair AB 1179 (Mansoor) - As Amended: April 25, 2011 SUBJECT : Labor organizations: union dues: political activities SUMMARY : Enacts the California Voluntary Contributions Act to place limitations on expenditures for political activities made by labor organizations. Specifically, this bill : 1)Provides that a labor organization may make expenditures for political activities only if the labor organization establishes a separate fund from which to make those expenditures and complies with all of the following: a) In soliciting contributions to the fund from a member, the labor organization shall inform the member that expenditures from the fun will be for political activities, that contributions are voluntary, and that the member has a right to refuse to contribute without fear of reprisal or loss of membership in the organization. b) The labor organization does not use union dues for political activities, transfer union dues to the fund, or intermingle union dues in any way with moneys in the fund. c) The labor organization pays the costs of administering the fund using fund contributions and not union dues. d) The labor organization ensures that each contribution to the fund is voluntary and is made by the member and not made by the employer of the member. 2)Places the burden on the labor organization to show that it has complied with these requirements. 3)Specifies that a labor organization may use union dues to lobby or communicate directly with its own members regarding political candidates, ballot measures, and other political issues. FISCAL EFFECT : Unknown AB 1179 Page B COMMENTS : According to the author, this bill will bar payroll deductions from employees being used for union political purposes. Background on Union Security Agreements and the Use of Union Dues for Political Purposes Under current California law, employers make a variety of payroll deductions from their employees' wages, including deductions for Social Security, income taxes, medical plans and charitable contributions. The Labor Code also requires employers to notify employees at the time of payment of wages regarding the amount of compensation and any deductions therefrom. Many employees in California are represented by labor organizations and pay union dues or similar fees for representation to the union. Under many collective bargaining agreements, such dues or fees are automatically deducted by the employer from employee wages and forwarded directly to the labor organization. Section 8(a)(3) of the National Labor Relations Act (NLRA) allows employers and unions to enter into union-security agreements requiring all employees in a particular bargaining unit to become "members" after a 30-day period following hire. However, in a 1963 decision, the Supreme Court held that the term "member" requires only the payment of periodic dues and fees as opposed to full membership in the union. NLRB v. General Motors Corporation, 373 U.S. 734 (1963). Since the court noted that "the membership that is required has been whittled down to its financial core," individuals choosing that approach are often referred to as "financial core members." This has also been termed an "agency shop" arrangement. Therefore, under current law, no employee is required to become a member of a union in order to maintain a job, but all employees subject to a union security clause can be required to pay union dues and fees to defray the costs of representation. In Communication Workers of America v. Beck, 487 U.S. 735 (1988), the Supreme Court held that the section of the NLRA that allows employers and unions to enter into union security agreements does not "permit a union, over the objections of dues-paying nonmember employees, to expend funds so collected AB 1179 Page C Ýpursuant to a union security clause] on activities unrelated to collective bargaining, contract administration or grievance adjustment." Thus, federal labor law does not permit a union to spend funds from dues-paying non-union employees on certain activities unrelated to collective bargaining when those employees object to such expenditures. At issue in Beck was the specific use of dues for political purposes. In Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991), the Supreme Court articulated a test for determining whether a particular expenditure of union funds may be charged to nonmember employees. Chargeable uses must (1) be germane to collective bargaining activities, (2) be justified by governmental interest in the maintenance of labor peace and the prevention of "free riders" who benefit from the union's collective bargaining activities without contributing to the costs of such activities; and (3) not add significantly to the burdening of free speech rights. The Lehnert decision also expanded the scope of the Beck holdings to include public sector employees so that such employees may not be compelled to subsidize political or ideological activities of public employee unions. Under Beck and subsequent cases, a union has several general obligations to ensure that employee's Beck rights are protected. First, the union must provide notice to nonmember employees of their Beck rights. Second, the union must refrain from charging objectors for nonrepresentational expenses. Finally, the union must provide objectors with a financial disclosure and establish procedures for objectors to challenge the accuracy of the union's disclosure. Therefore, applicable federal labor law establishes a mechanism whereby employees covered under union security agreements can become "financial core" nonmembers and therefore avoid having to pay that portion of their dues or fees for purposes unrelated to collective bargaining. The Federal Election Campaign Act of 1971 The Labor Management Relations Act of 1947 prohibited many forms of labor union contributions to federal election campaigns. The AB 1179 Page D Federal Election Campaign Act of 1971, as amended (FECA), generally continued this broad prohibition of labor union activities and funds in federal elections. However, the FECA provided for three broad exemptions to this general prohibition of labor union political activities in federal elections: (1) communications by a labor organization directed at its members or their families on any subject: (2) non-partisan voter registration and get-out-the-vote activities by a labor organization which are directed to its members or their families: and (3) the establishment and administration of a political action committee or separate segregated fund (commonly known as a PAC or SSF) for the purpose of the solicitation of contributions to such fund for political purposes. Generally, any other type of political activity by labor unions in federal elections would be prohibited under the FECA, and labor union contributions and expenditures concerning federal elections outside these exceptions would be prohibited. In a 1972 Supreme Court decision, the Court concluded that a legitimate labor union political fund must be separate from the labor union in that there must be a strict segregation of the political fund's monies from the union's dues and assessments. The Court noted that, while the former law, which prohibited labor organizations from making contributions or expenditures connected with a federal election, might be interpreted to prohibit the use of union funds to establish and maintain a union political fund for the purposes of soliciting and making political contributions in federal campaigns, the provision of the Federal Election Campaign Act of 1971 allowing labor unions to establish separate segregated funds or political action committees impliedly repealed that former law. No similar prohibition currently exists under California election law. The Citizens United Decision On January 21, 2010, the United States Supreme Court issued a decision that had significant impacts on federal campaign finance law. Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010). That case resulted from a dispute over whether the nonprofit corporation Citizens United could air a film critical of Hillary Clinton (Hillary: The Movie), and whether the group could AB 1179 Page E advertise the film in broadcast ads. At issue were portions of the 2002 Bipartisan Campaign Reform Act (commonly known as the McCain-Feingold Act) that prohibited all corporations and unions from broadcasting "electioneering communications. An "electioneering communication" was defined in McCain-Feingold as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or thirty days of a primary. The Court held that the law's prohibition of all independent expenditures by corporations and unions was invalid and could not be applied to spending such as that in Hillary: The Movie. Justice Kennedy, who wrote the majority opinion, stated: "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." The Campaign Legal Center has described the Court's holding as follows: "In Citizens United v. FEC, the Supreme Court struck down the decades-old federal ban on independent expenditures by corporations (and unions) to influence federal elections. The Court reasoned that the First Amendment does not permit laws to discriminate between corporations and individuals when it comes to electoral spending that is independent of candidates and political parties. However, the federal ban on direct corporate and union contributions to candidates and parties was not considered and remains in effect. Citizens United allows corporations and unions to spend their treasury funds on advertisements expressly advocating the election or defeat of a candidate for the first time in over 60 years. A corporation or union can either spend directly on such express advocacy or it can give to an outside group, such as one of the tax-exempt vehicles described in the sections below. The practical impact of this decision is a vast change in the magnitude of the political money available - the difference between a corporate political action committee ("PAC") spending perhaps hundreds of thousands dollars voluntary donated by corporate employees and a corporation AB 1179 Page F spending millions out of its multi-billion treasury." Following the decision, it was reported that laws in 24 states were directly or indirectly called into question by the ruling. "The states that explicitly prohibit independent expenditures by unions and corporations will be most affected by the ruling. The decision, however, has consequences for all states, since they are now effectively prohibited from adopting restrictions on corporate and union spending on political campaigns."<1> As discussed below, opponents to this measure argue that its limitations on union political expenditures run afoul of the recent holding in Citizens United. California Proposition 226 (1998) Proposition 226 of 1998 would have, among other things, required employers to obtain a signed authorization from employees on an annual basis in order to deduct money from an employee's wages to be used for political campaign activities. The measure also would have required that, in order for a labor organization to use a portion of the dues or fees it collects for political campaign activities, the union must obtain a signed form from the employee each year authorizing the use of the money for those activities. Proposition 226 was defeated by the voters in the June 2, 1998 primary election. California Proposition 75 (2005) Proposition 75 of 2005 would have prohibited the use by public employee labor organizations of dues or fees for political contributions except with the prior consent of individual --------------------------- <1> Urbina, Ian. "24 States' Laws Open to Attack After Campaign Finance Ruling." New York Times (January 23, 2010). AB 1179 Page G employees annually on a specific written form. Proposition 75 was defeated by the voters in the November 8, 2005 special statewide election. ARGUMENTS IN SUPPORT : The author states the following in support of this bill: "Certain employees who are forced to join and be represented by unions are forced to pay mandatory dues. These dues are often automatically deducted by the employer from the workers' wages and sent to the union. Unions can use these dues for political activities without the opinion of the employee on where and how the funds should be spent. ÝThis bill] fixes this problem by barring payroll deductions from these employees to be used for union political activities. A union members' ability to make political donations without payroll deductions will not be affected." The National Right to Work Committee, writing in support of this bill, states, "By requiring union bosses to collect funding directly from their membership, you will free taxpayers and local governments across California from having to finance what is nothing more than a union boss perk." ARGUMENTS IN OPPOSITION : Opponents argue that this bill unconstitutionally interferes with the right of contract and the right to free speech, and is preempted by the National Labor Relations Act, which already comprehensively regulates protection of employees who do not wish their union dues to be used for political purposes. In addition, opponents contend that this bill is unnecessary. No worker can be forced to fund a union's political program. Under current law, union members choose whether to join a union, they set their own dues, elect their own leaders and vote on how and where their money is to be spent. Those who disagree with their union's political activity can, and do, choose not to belong to the union. Finally, opponents state the following: AB 1179 Page H "We believe enactment of this bill would violate the First Amendment of the United States Constitution. Last term, the United States Supreme Court, in Citizens United v. Federal Election Commission, held that the First Amendment prohibits the government from restricting corporations, nonprofit groups and unions that choose to spend their regular treasury funds for independent public communications that "expressly advocate" the election or defeat of particular federal candidates. Even before Citizens United, California allowed unlimited corporate, nonprofit, and union treasury spending on general/public express advocacy and other electoral speech in state and local elections. Citizens United invalidated other states' restrictions on express advocacy. ÝThis bill] seeks to restrict union spending on express advocacy of political candidates, political parties, and ballot measures by outlawing employees' voluntarily authorized deductions of union dues if the dues are spent on political activities. ÝThis bill's] restriction would clearly violate the First Amendment, and the courts therefore would invalidate it as unconstitutional if it were to be passed." RELATED AND PRIOR LEGISLATION : AB 860 (Jones) of 2011 would prohibit corporations and labor unions, including public employee labor unions, from making contributions to candidates for elective office or entities, as specified, that would use contributions to fund a candidate or controlled committee. The bill also would prohibit a corporation, labor union, including a public employee labor union, government contractor, or government employer from deducting from an employee's compensation money to be used for political purposes. AB 860 is currently pending in the Assembly Committee on Elections and Redistricting. AB 2349 (Maze) of 2006 would have required a labor organization that is required to file a report of its income and expenditures with a government agency to post on its Web site either a copy of the report filed with the government agency or a link to the report on the Web site of the government agency. AB 2349 failed passage in the Assembly Committee on Labor and Employment. AB 2052 (Haynes) of 2004 would have, among other things, AB 1179 Page I required employers to notify employees when deductions are made from their paychecks to be used for political purposes. AB 2052 failed passage in the Assembly Committee on Labor and Employment. AB 674 (Leonard) of 1997 would have, among other things, prohibited an employer from withholding any amount from an employee's wages or salary for the purpose of making campaign contributions, except pursuant to a signed written request. AB 674 was referred to the Assembly Committee on Elections and Redistricting, but was never heard. AB 1347 (Kaloogian) of 1997 would have required a labor organization to disclose, in writing, to its members before the dues or other fees for membership are required to be paid, the actual amount it spends on political activities. AB 1347 was referred to the Assembly Committee on Public Employees, Retirement and Social Security, but was never heard. AB 1401 (House) of 1995 would have prohibited a school district from deducting any portion of the dues from any classified employees to support political activities of the labor organization. AB 1401 was held on the Assembly Inactive File. REGISTERED SUPPORT / OPPOSITION : Support Associated Builders and Contractors of California National Right to Work Committee Opposition American Federation of State, County and Municipal Employees California Conference Board of the Amalgamated Transit Union California Conference of Machinists California Official Court Reporters Association California Professional Firefighters AB 1179 Page J California School Employees Association California Teamsters Public Affairs Council Engineers and Scientists of California International Longshore and Warehouse Union Orange County Employees Association Professional and Technical Engineers, Local 21 Service Employees International Union UNITE HERE! United Food and Commercial Workers - Western States Conference United Nurses Association of California/Union of Health Care Professionals United Transportation Union Utility Workers Union of America, Local 132 Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091