Argument Recap: “Union Fees” Cases on 1/10

The following argument recap is by Lauren Popper Ellis, a student at Harvard Law School. Her preview of this argument can be found here.

Wednesday’s argument in Davenport v. WEA and Washington v. WEA revealed several theories that interested the Court and may influence its decision on the constitutionality of Section 760 of Washington State’s Fair Campaign Practices Act.

Initial questioning of Washington Attorney General Robert M. McKenna revolved around the purpose of § 760. Justice Scalia started off the questioning by asking whether the statute served to protect the First Amendment rights of nonmembers. This led to a series of questions from Justice Kennedy about whether the Supreme Court was bound by the Washington Supreme Court’s interpretation of the purpose of § 760 as protecting election integrity. Pursuing a similar theme, Justice Alito inquired whether any court could divine the purpose of a ballot initiative and Justice Scalia asked whether, in order to avoid constitutional issues, the Washington Supreme Court should have interpreted § 760’s purpose as protecting First Amendment interests. This questioning implied that protecting nonmembers’ First Amendment interests could be a compelling interest to justify § 760, but election integrity might not be.

Justice Breyer joined the discussion to question whether § 760 could possibly be designed to protected the speech interests of “compelled payors,” given that § 760 only prohibits labor unions, but not “the local swimming team . . . the bar association or the corporation” from spending portions of contributed funds on political activities. In response, Mr. McKenna repeatedly argued that the statute had a “hybrid purpose,” and indicated that the “plain language” of § 760 revealed that one of its purposes was to protect the individual speech interests of nonmembers. Justice Kennedy asked Mr. McKenna to confirm that Washington’s position was that § 760 was constitutional whether its purpose was to protect election integrity or protect the First Amendment rights of nonmembers. Before reserving time for rebuttal, Mr. McKenna concluded by reviewing the logistics of the WEA’s Hudson-packet process to argue that execution of § 760’s “opt-in” scheme would not impose an administrative burden on the union.

Arguing for the United States as amicus on behalf of petitioners, Solicitor General Paul D. Clement framed the Washington Supreme Court’s decision as having “constitutionalized an area of labor law” traditionally reserved to federal and state discretion. Initial questions to Mr. Clement attempted to separate out two arguments for why the Washington Supreme Court’s decision should be overturned: one made by Washington and the United States that § 760 is constitutional because it does not burden unions’ First Amendment rights and furthers state interests in promoting election integrity and one made by the Davenport petitioners that the opt-in process is actually required by the First Amendment to protect nonmembers’ rights.

Teasing out the second argument, Justice Alito asked why an opt-in process should not be required by the First Amendment if it is not overly burdensome and Justice Stevens asked whether the Washington Supreme Court could find § 760 unconstitutional under the state constitution without raising a federal constitutional issue.

Justice Ginsburg returned to the question of the purpose of the statute, asking whether it was relevant that the law did not seem “to be focused at all on beefing up the rights of nonmembers.” Mr. Clement argued that the statute clearly had hybrid purposes. He then addressed the fact that § 760 applies only to unions, but not other organizations, an issue raised by Justice Breyer to Mr. McKenna. Mr. Clement first argued that this issue was not before the court because it had not been considered below. He then argued, in response to a question from Justice Scalia, that even if this argument could be considered, § 760’s unique focus on unions was justified by the unique advantages conferred on unions by agency shop laws.

Arguing on behalf of respondent, John M. West began by describing § 760 as an unjustified content-based restriction on the First Amendment rights of unions. Justice Kennedy interjected to ask whether the First Amendment rights of workers were also at issue. Justice Kennedy went so far as to state that “absent some direction” that the Washington Supreme Court’s decision prevented the Court from conceiving of the statute’s purpose as protecting nonmembers’ First Amendment interests, § 760 seemed to him to fall within Washington’s “considerable discretion” to choose a means to protect workers’ First Amendment rights.

Justice Souter then probed the source and extent of the union’s claimed First Amendment right, inquiring whether such a right would be infringed by a law that required the maintenance of separate funds for political activity. Justice Ginsburg pointed out that federal laws required just such segregation and asked whether that system wasn’t more burdensome to unions.

The next round of questioning attempted to establish why § 760 was content discriminatory. Justices Stevens, and later Justice Kennedy, asked whether a law imposing an opt-in requirement on any non-germane use of shop fees would be constitutional. Chief Justice Roberts followed up by inquiring why such a law, which Mr. West admitted would be constitutional, did not pose similar content discrimination to § 760. Justice Scalia intimated several times that he did not see content discrimination if the government was merely placing limits on the purposes for which unions could lawfully “exact” funds from nonmembers.

The Court further probed the source of content discrimination in questioning Mr. McKenna during his rebuttal argument. Justice Breyer emphasized that a finding that § 760’s regulation of election-related speech triggered strict scrutiny would have far-reaching impact on judicial review of unrelated campaign finance laws. Justices Scalia and Ginsburg intimated that they believed § 760 did concern a category of speech, but Justice Scalia re-emphasized that the special coercion of union shop arrangements distinguished the regulation here from other content-based regulations.