Dissenting teachers in the State of Washington put forth a long and mighty effort, and were rewarded for their patience – even though the rewards may be more psychic than monetary. In a unanimous 9-0 decision, the U.S. Supreme Court on June 14 ruled in favor of the right of nonunion public employees under union contract to exercise discretion over how their fees are spent. Consolidating the cases of Davenport v. Washington Education Association (No. 05-1589) and Washington v. Washington Education Association (No. 05-1657), the Court upheld a Washington State law passed by voter referendum a decade and a half ago giving public-school teachers the right to withhold payments for what they might consider objectionable political purposes. In so doing, the court overturned a state decision holding this “paycheck protection” law to be a violation of a union’s free-speech rights. At the same time, it’s a limited victory. The High Court sidestepped the issue of constitutionality of union forced-dues collections. Moreover, just weeks before the decision, the state’s union-friendly Democrat political establishment gutted the law.
Back in 1992, state voters passed by a 72-28 percent margin the Fair Campaign Practices Act. Appearing on the ballot as Initiative 134, the measure was an understandable – and as supporters argued, overdue – response to the excesses of public-employee union political spending. Almost invariably, the destination of that money was the Democratic Party and its candidates. Washington State allows (but does not require) teacher unions to negotiate nonmember partial dues, or “agency fees,” as part of a contract with local school districts. And should the union successfully negotiate these fees, set at a certain percentage of full dues, covered employees must pay them. Fees, like full member dues, can be directed toward hardball politics, if often disguised as “educational” projects. After passage of Initiative 134, contributors to union-sponsored political action committees (PACs) dramatically dropped, especially after the 1994 elections. Alarmed, the Washington Education Association (WEA), the state affiliate of the National Education Association (NEA), engaged in a set of maneuvers to conceal the nature of its political spending, and in the process actually expanded it. About 4,000 nonunion fee payers – about 5 percent of all WEA members and payers – led by suburban Seattle high school history teacher Gary Davenport, about 4,000 nonunion fee payers – about 5 percent of 80,000 WEA-covered employees – filed a class-action suit against the WEA for violating Initiative 134.
They got help from an Olympia, Wash.-based think tank, the Evergreen Freedom Foundation (EFF). In August 2000, EFF filed a complaint with the Washington State Attorney General’s office demanding it enjoin the WEA from using union funds for election-related expenditures. Thurston County (Wash.) Superior Court Judge Gary Tabor in November 2001 granted the injunction on behalf of the state. The heart of the new law was Section 760. This provision required unions to obtain “affirmative consent” from workers. In other words, a union would have to do more than provide a partial refund to dissenting workers; it would have to obtain a written waiver beforehand from all covered employees. This “opt-out” clause was a modest step, at once affirming and expanding upon prior U.S. Supreme Court decisions, most notably Chicago Teachers Union v. Hudson (1986), which required that the union provide an adequate explanation for fees, an opportunity to challenge them, and an escrow account for amounts in dispute during pending challenges. Such cases had established the principle that unions, especially teacher unions, must refrain from political spending that does not have employee consent. Colorado and Utah eventually would pass similar laws. In Washington, the WEA, set back by Judge Tabor’s 2001 injunction, regrouped, filing an appeal with the state Supreme Court. In March 2006, fully two years after hearing the case, the court reversed the lower-court ruling. The Fair Campaign Practices Act, the court concluded, “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.” That was an unusual interpretation of the First Amendment, presuming that restrictions placed on spending derived from forcibly taken funds constitutes a denial of rights of the entity doing the taking.
The plaintiffs in Davenport, aided by the Evergreen Freedom Foundation and the Springfield, Va.-based National Right to Work Legal Defense Foundation, appealed to the U.S. Supreme Court, which heard arguments this January. The High Court’s unanimous decision made clear that the WEA’s position rested on a weak foundation. Justice Antonin Scalia’s wrote:
(T)he principal reason the Supreme Court of Washington concluded that [Section] 760 was unconstitutional was that it believed that our agency-fee cases, having balanced the constitutional rights of unions and non-members, dictated that a nonmember must shoulder the burden of objecting before a union can be barred from spending his fees for purposes impermissible under (previous agency-fee rulings). Those cases were not balancing constitutional rights for the simple reason that unions have no constitutional entitlement to the fees of non-member employees.
Such logic may be sensible, but its probable impact is debatable. Gary Davenport, the lead plaintiff, thinks the decision will benefit dissenting workers. “We’re very pleased with the decision,” he said. “It’s a good thing for First Amendment rights that the justices rejected the Washington panel’s belief that unions can essentially trample on an individual’s rights.” Likewise, Paul Ryan, associate legal counsel for the Campaign Legal Center, which supported the 1992 law, said he is “very happy” with the latest ruling. Had the Supreme Court not ruled as it did, unions and their supporters may well have tried next to overturn even more restrictive federal campaign finance laws governing union political expenditures.
But the losing side believes there’s much ado about nothing here. Washington Education Association President Charles Hasse pointed out that the Supreme Court didn’t rule on either the constitutionality of the law or whether his union violated it. The WEA’s parent organization, the National Education Association, likewise thinks the dissenting teachers’ victory was empty. The ruling has “no practical impact,” said NEA general counsel Bob Chanin, adding that the Supreme Court refused to apply the affirmative-consent principle beyond Washington state. “(W)e remain confident that at the end of the day, courts will show that WEA acted in good faith to comply with a very vague and poorly written law.”
While the union officials’ words sound like face-saving, they may well enjoy the last laugh anyway. This May 10, the Washington legislature, sensing imminent defeat at the U.S. Supreme Court, passed a law stipulating that union political spending is to be considered as originating from sources other than agency fees. Even without the legislation, the WEA had been prevailing, given its ability to change accounting procedures and make cosmetic adjustments in the stated nature of the expenditures. And while the new law does not negate the right of the class-action plaintiffs to collect refunds based on past violations of rights, the refunds will amount to petty cash – a per-employee average of about $10 a year, estimates the National Right to Work Legal Defense Fund. It’s not the money, but the principle, respond supporters of Initiative 134. They are right, yet appear to miss the larger principle. The real issue is not how unions spend money after they forcibly collect it; it’s the very fact of forcible collection. Labor law in 28 states plus Washington, D.C. allows private-sector unions to write “security agreements” into their contracts, requiring private-sector employers to fire employees who refuse to pay full dues or agency fees.
The public sector, which is the focus of this case, operates on a different wavelength. Yet the same issue is the same. Paycheck-protection laws deal only with the destination of dues. Right to Work laws, by contrast, address the issue of the origin of dues – that is, the legal authority of labor unions to collect money from workers not wishing to contribute. Regardless of whether dues go for “good” or “bad” causes, they are derived without employee consent in non-Right to Work states. The Supreme Court’s upholding of paycheck protection is a step in the right direction, but only a small one. (Washington Times, 6/15/07, 6/17/07; Washington Post, 6/15/07; National Right to Work Legal Defense Foundation, 6/14/07; other sources).