Davenport, Gary, et al. & Washington v. Washington Education Assn. (06/14/2007)

Questions presented: (1) Do labor union officials have a 1st Amendment right to seize and use for politics the wages of nonmembers who have chosen not to become union members? (2) Does a state campaign finance law that prohibits labor unions and their officials from seizing and using the wages of nonmembers for partisan political campaigns without obtaining the nonmembers' affirmative consent violate the 1st Amendment rights of labor unions?

BY ZENA MCFADDEN, MEDILL NEWS SERVICE

In the state of Washington, ninety-five percent of those in the field of education who are able to join the union do so and they aren't concerned that the Washington Education Association is spending part of their union dues on political campaigns.

The state of Washington insists that the union has a responsibility to approach the five percent who don't join the bargaining unit and ask them individually if they can have some of their money to use for political activities.

The U.S. Supreme Court announced Sept. 26, 2007, that it would hear a consolidated case dealing with this issue.

The justices have been asked to decide whether public sector unions can use agency fees deducted from non-member paychecks, for political activity; and whether a law that would require the union to obtain the non-members consent before using that money is allowed under the Constitution.

The cases pit the Washington Education Association (WEA), with more than 80,000 members, against the State of Washington and five non-member teachers.

The conflict can be traced to the passage of the Fair Campaign Practices Act in 1992. The law provides that a union cannot use agency fees, payments made by non-members to the union for representation, for political purposes unless "affirmatively authorized" by the individual.

WEA sees the law as burdensome. The union also says it curtails its right to engage in political advocacy. The Supreme Court of Washington agreed, saying that the law "regulates the relationship between the union and agency fee payers with regard to political expression and thus violates the union's right of expressive association."

Anti-union forces and campaign reform groups say Washington's "opt-in" law is necessary to protect the individual non-member's right to withhold contributions for unions' political activity.

Under opt-out legislation, the union is obligated to let the non-members know what portion of their agency fee went to political activity and then the non-member has the responsibility to ask for the money back. Opt-in laws require the union to ask non-members if they would like to contribute.

Some political organizations are weighing in on the side of the constitutionality of the Washington law.

William Maurer, of the Institute for Justice, a libertarian public interest law group that works on compelled free speech issues said that every organization must adhere to the requirements that the Washington law dictates. "The National Right to Life can't compel me to give it money and then make me ask to get it back," he said.

The unions on the other hand, maintain that they are arguing for 1st Amendment rights and not arguing over the lost funds.

Ninety-five percent of the employees WEA represents are union members. "The estimated amount of money that the non-members contribute to political activity is about $10 per person" said Charles Hasse, a teacher on sabbatical and spokesman for the WEA.

The bad result of these court cases for the union is that "these allegations about our organization have an effect on our good name, and this has been damaging," said Hasse.

The WEA urged the Court not to review the case saying that its impact was related to the State of Washington only.

On June 14, 2007, a unanimous Court upheld the Washington state law.

“The purpose of the voters of Washington was undoubtedly the general one of protecting the integrity of elections by limiting electoral spending in certain ways,” Justice Antonin Scalia wrote. “Quite obviously, no suppression of ideas is afoot, since the union remains as free as any other entity to participate in the electoral process with all available funds other than” those fees by nonmembers who refuse to give their approval.

In a concurrence joined by Chief Justice John Roberts and Justice Samuel Alito, Justice Stephen Breyer expressed disagreement with Part II–B of the opinion, “which addresses numerous arguments that the Washington Education Association raised for the first time in its briefs before this Court.”

“I would not address those arguments until the lower courts have been given the opportunity to address them,” Breyer wrote.

Meanwhile, the Institute for Justice’s Maurer hailed the ruling, noting: “The Court spelled out very clearly that the 1st Amendment doesn’t permit unions to confiscate other people’s money for their own political causes.”

“There’s nothing unconstitutional about letting teachers and other workers decide for themselves whether to fund union political activity,” he said.