Governing, November 2, 2012
Nov. 7, 2012 8:41 a.m. Update: With more than 94 percent of precincts reporting, 56 percent of Californians rejected Prop. 32.
For full election coverage and analysis, go to Governing's 2012 Election Center.
California labor unions and conservative groups are locked in a battle this fall that could drastically reshape the state's political landscape for years to come.
Proposition 32, up for vote next week, is aimed squarely at unions and their ability to raise campaign funds from members. Similar ballot measures have cropped up in other states in recent years, and five already have "paycheck protection" laws in place. But the proposed California ballot initiative goes a step further in that it would completely ban the use of payroll deductions for all political activities.
Ken Jacobs, chair of the UC Berkeley Labor Center, said Proposition 32 represents the most restrictive anti-union measure controlling political contributions in the country.
"It would have a significant impact on unions' ability to participate in politics in the state," he said. "You'd be effectively removing one side from the equation."
Proposition 32 differs from other states' rules in that it prohibits unions, corporations and government contractors from spending payroll deductions on "political purposes" in all circumstances. In the few other states with restrictions, unions can continue to use payroll deductions from members who opt in and give permission to expend dues for politics.
Passage of the measure would force unions to devise entirely new mechanisms for collecting voluntary contributions from members, such as credit card or checking accounts. Jacobs says implementing such an external system separate from payroll deductions is cumbersome and would greatly diminish money unions amass for political spending. "It would create a real barrier to combine their funds and have a political voice," he said.
Proposition 32 applies to both public and private sector unions. It is also broader than some other measures in that it only allows for independent expenditures, such as PACs, while banning contributions to candidates and committees directly supporting them.
By contrast, the business community's political contributions would largely remain intact under Proposition 32. Only legally-defined corporations are affected, sparing insurance companies, law firms, real estate developers and others from any new rules. And corporations that are subject to the proposal rarely collect political funds from payroll deductions, the primary restriction of the measure. They also don't need an OK from employees or shareholders before dolling out money to political causes. Affected corporations would only need to shift any money previously spent on direct contributions and funding committees to independent expenditures.
Local governments, along with the state, would implement and enforce the new rules, with a price tag that could exceed $1 million annually, according to the state Legislative Analyst's Office.
Proposition 32 doesn't completely remove unions from the political arena. But those opposed argue corporations already enjoy the most political clout in California, and the proposal would only tip the scales even more.
Various forms of "paycheck protection" laws were previously implemented in Idaho, Michigan, Utah, Washington and Wyoming. Similar initiatives passed in Alabama and Arizona are tied up in courts.
The recent wave of bills is part of a national effort by conservatives targeting public sector unions, said John Logan, associate professor and director of labor studies at San Francisco State University.
Michigan's bill, which Gov. Rick Snyder signed earlier this year, prohibits school districts from collecting dues from employee paychecks. Logan says the more comprehensive Proposition 32 would be the nation's most expansive anti-union measure yet.
States with tighter restrictions typically require union members to give prior permission to use dues for political purposes, rather than opting out on their own initiative.
Logan said many proposals introduced in states stem from model legislation drafted by the American Legislative Exchange Council, a prominent conservative lobbying group. The GOP's 2012 party platform calls for a ban on mandatory dues for political purposes and an end to governments collecting dues for unions.
Federal law already guarantees employees the right to instruct unions not to use individual dues for political purposes. But Justin Wilson, managing director for the Center for Union Facts, a Washington, D.C.-based group critical of unions, says the steps to opt out are often onerous. Some unions, for example, set deadlines to opt out early in the year or include a multitude of rules, like requiring forms to be sent via registered mail, he said.
States enacting stricter limits on unions have seen sharp declines in political spending.
Wilson said Republican members are underrepresented in labor-backed campaigns, which lean heavily Democratic. Proposition 32 would make it easier for these members to block spending for campaigns they oppose.
"When [unions] really get their back up is when anyone attempts to challenge their monopoly on their relationship with workers," Wilson said.
If Proposition 32 becomes law and cripples unions' ability to raise funds, Logan expects an onslaught of ballot initiatives targeting labor and employment standards in upcoming elections. "It would change the political calculus in California," he said.
But how could such an anti-union measure pass in a liberal state?
California voters struck down similar ballot initiatives in the past, most recently in 2005. The difference this time around is that supporters of Proposition 32 bill it as campaign finance reform by also including corporations in the proposal.
The stakes are high, and special interests are pouring money on both sides, accordingly.
Opposition efforts -- mostly unions -- have raised $66 million so far.
Groups supporting the measure have countered with $58 million, led by $36.6 million from the Small Business Action Committee PAC. The Lincoln Club of Orange County, which helped to bankroll the Hillary Clinton documentary that eventually led to the Citizens United case, is another primary backer of Proposition 32.
Polls signal the measure could be headed for defeat. An October Public Policy Institute of California poll found 53 percent of likely voters opposed, 39 percent supporting the measure and 7 percent undecided. The gap widened since September, when the same poll found a 49-42 percent advantage for those voting no.
Even if it is rejected, the U.S. Supreme Court could move to impose its own rules.
This summer, the court ruled a local union in California did not give proper notice to non-union members covered by Service Employees International Union contracts before deducting "special assessment" fees to fight two prior state ballot initiatives. Justice Samuel Alito wrote non-union members needed to give prior approval for the fees, instead of merely giving them the opportunity to opt out.
William Gould, former chairman of the National Labor Relations Board during the Clinton administration, said the ruling hints at a potentially more expansive opt-in requirement.
"The language in the Knox decision suggests a majority of the court may well be prime to overturn more than seven decades of Supreme Court labor law jurisprudence and require that employees opt in, at least in the public sector," he said.