A free-speech salve

OPINION:

Right-of-center activists roundly applauded the Supreme Court’s Federal Election Commission v. Wisconsin Right to Life ruling this week because it rolled back aspects of the draconian McCain-Feingold campaign-finance law.

Yet only 11 days earlier, the Supreme Court unanimously upheld a Washington State campaign-finance provision dealing with unions, and a few activists viewed the ruling as a mandate to promote more such laws.

These contrary reactions are difficult to reconcile. Government regulation of political speech, no matter whom the target, is not the right approach.

In Davenport v. Washington Education Association (WEA), the Supreme Court slapped down an admittedly dangerous ruling by the Washington State Supreme Court because it had turned the First Amendment on its head.

In Davenport, the Supreme Court articulated what should have been a no-brainer: Unions have no First Amendment right to spend on politics the forced dues taken from nonunion employees. In writing the opinion of the high court, Justice Antonin Scalia unequivocally stated, “unions have no constitutional entitlement to the fees of nonmember-employees.” Davenport was indeed an important defensive victory for individual employees because union lawyers could have used the lower court’s rationale to challenge state right-to-work laws banning compulsory dues.

However, when the Supreme Court corrected the state court’s twisting of the First Amendment, it had no choice but to uphold the Washington provision misleadingly called “paycheck protection.” The few “paycheck protection” laws actually on the books generally require union officials to get permission before spending workers’ forced dues on certain political activities. Sounds fair, doesn’t it? After all, forced union dues are the law of the land for nonunion employees in more than 25 states. Except in states with right-to-work laws, union officials may force workers to pay dues to a union as a condition of employment, and union politicos use hundreds of millions of dollars in compulsory dues to fund their agendas.

In reality, however, these “paycheck protection” laws have not lived up to the hype or returned a material amount of funds to employees.

In fact, the concept was originally introduced as a mere rhetorical device to help block efforts by the political left to enact sweeping new regulation of political speech. Principled opponents of the McCain-Feingold campaign finance bill offered such union regulations as “poison pill” amendments throughout the 1990s.

A few activists, however, now view the Davenport holding that these union regulations are not inherently unconstitutional as a validation of their effectiveness. But more than a decade of experience indicates otherwise.

Because “paycheck protection” laws are generally written under the auspices of campaign-finance laws, they only affect a tiny sliver of union political expenditures. For starters, they generally only cover express advocacy of a candidate’s election or defeat which is a fraction of union political expenditures. Moreover, state campaign-finance laws do not apply to federal election activity.

The impact is negligible as a result. In the case of Washington State, WEA union officials merely shifted their accounting practices and slightly modified the nature of their expenditures. Accordingly, the union actually collected and spent 60 percent more money on politics, more broadly defined, the year after the law went into effect. Of course, the law left intact the union’s core privilege of forced union dues, so nothing stopped union officials from jacking up the dues even higher.

However, such laws’ lack of teeth is not the only reason why paycheck protection is a blind alley. By embracing the campaign-finance regulatory approach, its promoters are trying to use the tools of the political left, i.e. government regulations, to solve a problem caused by government in the first place. This path is fraught with danger and could continue to backfire, as it nearly did in Washington State.

The real problem is that forcing employees to pay any dues for politics or anything else is fundamentally unjust. The Davenport ruling made it completely clear that states can prohibit this practice by passing right-to-work laws. Justice Scalia even noted in the unanimous opinion that “it is undeniably unusual for a government agency to give a private entity the power, in essence, to tax government employees.”

The real solution is to end, not regulate, compulsory unionism. Only the elimination of unions’ “extraordinary benefit” (as Justice Scalia called it) to force workers to pay union dues or be fired will protect employee free speech.

Bradley A. Smith, a former chairman of the Federal Election Commission, is chairman of the Center for Competitive Politics.