High-court ruling may set stage for more antiunion battles

Public-sector labor unions can be forced by a state government to first obtain permission of nonmembers of the union before using their fees to influence political campaigns.

In a unanimous ruling announced on Thursday, the US Supreme Court upheld a 1992 Washington State campaign-finance law that required unions to obtain the affirmative agreement of nonmembers that a portion of their fees could be used for politics.

The opinion comes in a case involving the 70,000-member Washington Education Association (WEA). At issue was whether the state could require the union to obtain explicit permission from some 3,000 nonunion members rather than the implied consent obtained under the union's preferred opt-out procedure.

The law at the center of the case has since been rewritten, eliminating the provision that required affirmative agreement. But the high court's holding may have broader significance beyond Washington State.

The decision comes amid an ongoing nationwide effort by several conservative groups to challenge the use of union treasury funds to influence political campaigns. The high-court decision only applies to nonmember fees at public-sector unions, but it may set the stage for broader antiunion battles in the future. For example, union opponents may seek to apply the same legal reasoning to union members who object to a portion of their union dues being used to support political causes they oppose.

In the Washington State case, the union had fought the new campaign-finance law in court, saying it violated its First Amendment right to advance the union's goals through political advocacy.

The fee issue arose because by law, all teachers in Washington State must be represented by the union for contract and other collective-bargaining issues. As a result, all teachers – even those who choose not to join the union – must agree to have their paycheck deducted by the equivalent of union dues.

The mandatory deduction means the union compiles a pool of funds from nonmembers. The law allows the union to use a portion of the funds for politics, but union leaders must obtain permission.

The WEA had adopted an opt-out system, obtaining permission from nonmembers by sending them a thick packet of information twice a year. If the nonmembers objected to the use of their fees for politics, they could opt out by writing a letter notifying the union that they objected. The political portion of their fees would be refunded. If the union did not receive the returned form, union officials interpreted that as consent to use the fees for politics. Consent was assumed even in cases where the letter might have been lost in the mail or the nonmember simply forgot to write or mail it.

In contrast, the 1992 state law mandated that labor leaders use an opt-in system, requiring the union to obtain affirmative permission from nonmembers before the union could use the fees for politics. If no permission was received, the union was supposed to return that portion of the fees to nonmembers.

The Washington Supreme Court struck down the 1992 campaign-finance law as an unconstitutional infringement of the WEA's First Amendment rights to engage in political activities without government interference.

On Thursday, the US Supreme Court reversed that decision, saying that the law did not violate the union's First Amendment rights.

"Unions have no constitutional entitlement to the fees of non-member employees," Justice Antonin Scalia wrote for the court. "The principal reason the Supreme Court of Washington concluded that [the law] was unconstitutional was that it believed that our agency-fee cases, having balanced the constitutional rights of unions and non-members, dictated that a non-member must shoulder the burden of objecting before a union can be barred from spending his fees."

But that was the wrong balance to strike in the Washington State case, Justice Scalia said. In earlier cases, the US Supreme Court had established that a worker's dissent was not to be presumed. The high court had ruled that a dissenting employee must make his objection known to the union.

Scalia said this created a perceived constitutional balance that was misconstrued. The earlier decisions of the US Supreme Court established a minimum set of procedures. States such as Washington are free to enact more rigorous regulations, he said.

"The mere fact that Washington required more than the … minimum does not trigger First Amendment scrutiny," Scalia wrote. "The constitutional floor for unions' collection and spending of agency fees is not also a constitutional ceiling for state-imposed restrictions."

The decision continues: "The Supreme Court of Washington read far too much into our admonition that 'dissent is not to be presumed.' We meant only that it would be improper for a court to enjoin the expenditure of the agency fees of all employees, including those who had not objected, when the statutory or constitutional limitations established in those cases could be satisfied by a narrower remedy."

The decision comes in two consolidated cases, Davenport v. Washington Education Association (No. 05-1589) and Washington v. Washington Education Association (No. 05-1657).