Unions, dues and activism

In a unanimous decision Thursday, the Supreme Court corrected an attempt by the Washington State Supreme Court to turn the First Amendment on its head for the benefit of union political activism. Unions in Washington are permitted to collect fees from nonmembers, but unions are not — according to a provision in the state’s 1992 Fair Campaign Practices Act — allowed to use the fees collected from nonmembers for political purposes without first obtaining consent. Union members have no such control over how their dues are spent. The case, Davenport v. Washington Education Association (WEA), was heard by the Supreme Court in January.

The Washington State high court declared this provision, known as Section 760, to be unconstitutional for the absurd reason that it infringes on the First Amendment rights of the union. The court argued unconvincingly 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.” The court decided that a union “has the [First Amendment] right to use nondissenting nonmembers’ fees for political purposes,” but also, confusingly, that “presumption of dissent violates the First Amendment rights of both members and nonmembers.”

The Supreme Court reversed the erroneous ruling. Writing the opinion, Justice Antonin Scalia concluded that, “[t]he principal reason the Supreme Court of Washington concluded that 760 was unconstitutional was that it believed that our agency-fee cases, having balanced the constitutional rights of unions and of nonmembers, dictated that a nonmember must shoulder the burden of objecting before a union can be barred from spending his fees for purposes impermissible under” a ruling from a previous agency-fee case. “Those cases were not balancing constitutional rights,” as WEA had argued, “for the simple reason that unions have no constitutional entitlement to the fees of nonmember-employees.”

Section 760, the court also noted, “is not fairly described as a restriction on how the union can spend ‘its’ money; it is a condition placed upon the union’s extraordinary state entitlement to acquire and spend other people’s money.” And this gets to the heart of the problem. The court’s unanimous ruling is a victory for commonsense jurisprudence — and for a reasonable reading of the First Amendment. But the issue of why workers in Washington, along with several other states, can be forced to pay union dues even if they chose not to join the union remains unsolved. In that sense, Thursday’s ruling provides little help for reformers in addressing that issue.