- The Washington Times - Thursday, January 18, 2007

Thomas Jefferson recognized: “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.” The Bush Administration last week fumbled an opportunity to take a stand against such tyranny during oral arguments in two consolidated U.S. Supreme Court cases.

Squarely before the court was a Washington law concerning collection procedures for forced union fees. More importantly, the high court may decide the constitutionality of prevalent union rules which were designed to bilk nonunion members in order to fund various union activities, including political speech. Unfortunately, instead of a full-throated, Jeffersonian defense, the administration chose to support a status quo that often forces employees to subsidize political activities they oppose.

Of course, optimal public policy would allow unions to negotiate solely for their members. Other workers would be free to negotiate directly with their employer, protecting their explicit First Amendment right not to associate with a union.

While the Supreme Court has recognized this constitutional interest, it has also held that, in the name of an abstract notion called “labor peace,” a state may grant union officials exclusive bargaining privileges to negotiate with employers, thereby binding even nonmembers. On paper, the unions have the duty to fairly represent everyone covered by their bargaining agreement, but in practice this often does not occur.

Having sought and obtained the power of exclusive representation, unions claim they should be able to charge nonmembers fees equivalent to dues that support the union’s activities, including political ones. Meanwhile, the Supreme Court has affirmed that states may pass right-to-work laws to prohibit all compulsory dues or fees.

But the Supreme Court has also held that states may impose these compulsory fees. An employee can reclaim the nonbargaining (including political) portion of the fee, but owing to the misapplication of a phrase from a 1961 Supreme Court case — “dissent is not to be presumed” — union officials say that even a nonmember must voice further objections. In later cases, the court developed minimal requirements for the objection process. But the facts show that the unions still obtain funds by intimidating nonmembers or erecting onerous procedural barriers to those who object.

As part of a 1992 reform initiative, Washington’s voters enacted a “paycheck protection” provision that prohibited a union from using any portion of the fee for certain narrowly defined political purposes unless the union obtained the nonmember’s “authoritative authorization.”

In a shocking 6-3 decision, the Washington Supreme Court, relying largely on the “dissent is not to be presumed” statement, held that the paycheck protection provision was unconstitutional since it interfered with the union’s “right” to spend nonunion members’ money for political purposes.

The “dissent is not to be presumed” notion emerged when formal union membership could still be required, a concept the courts have since rejected. Thus the need for clumsy methods of determining dissent no longer exists. A simpler criterion makes more sense: only those who join the union support it and its political causes, while those who do not join (or who resign) do not.

Four thousand nonmember Washington teachers and numerous amicus briefs, including the one I filed for the Mackinac Center for Public Policy, argued that the First Amendment requires clear and unmistakable consent before a union may compel payment of fees earmarked for non-bargaining activities including politics and lobbying. This commonsense policy would prevent union officials from using the state’s power and simple inertia to gain a financial advantage and compel political speech.

Enter the Bush Department of Labor. After DOL filed its amicus brief, the U.S. Solicitor-General obtained oral argument time to help defend the Washington law.

At the hearing, several justices voiced deep skepticism about these union opt-out procedures, hinting at the possibility of a broader First Amendment ruling. But when Justice Samuel Alito presented the administration with an opportunity to support a constitutional opt-in requirement, the solicitor-general pointedly refused. In fact, he argued that the First Amendment compels no such thing.

This is no small matter. A clear constitutionally based opt-in ruling would, in Washington, put more than $200 back into the pockets of thousands of teachers. This precedent would provide similar automatic rebates to the estimated 1 million nonunion employees paying compulsory fees. Hopefully, the court will ignore the administration’s disturbing hesitancy on this key constitutional question and curtail the tyranny of involuntary political contributions.

Patrick J. Wright is senior legal analyst at the Mackinac Center for Public Policy.

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