More on the Decision in Davenport v. WEA

The following entry is by Adam Jed, a summer associate in Akin Gump’s DC office and a student at Harvard Law School.

In Washington, as in many states, unions are permitted to collect fees from non-members to use towards collective bargaining and similar activities. In 1992, Washington voters passed the Fair Campaign Practices Act, section 760 of which provides that unions cannot use fees paid by non-members for political purposes unless those non-members “affirmatively authorize” the expenditure. Section 760 was seen as calling into question two competing First Amendment interests. On one side is the right of a union to engage in political advocacy without the burden of obtaining permission from non-members, most of whom do not strongly object to the use of a small amount of their union fees. On the other side is the right of non-members to avoid entanglement with such political advocacy. The question before the Court was whether Washington’s opt-in rule was a permitted protection of the latter or an unconstitutional violation of the former. By a vote of 9-0, today the Court held that “opt-in” systems like these do not violate the First Amendment in cases of public-sector unions.

The Washington Education Association (WEA), a labor union representing most educational workers in Washington, collects fees from non-members and spends approximately ten dollars of each non-member’s fee on political activity every year, in violation of section 760. In 2000, the State of Washington brought legal action against the WEA. Soon after, a group of non-member educational employees sued, seeking a refund of union fees. The cases were consolidated, and the Supreme Court of Washington voted 6-3 to overturn the law, reasoning that it “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.” The court further reasoned that the existing Supreme Court jurisprudence on the matter established a balance between the First Amendment rights of unions and employees from which section 760 deviated. Because employees are “given a simple and convenient method of registering dissent,” the court explained, they have “not been compelled to support a political cause” and have “not suffered a violation of his or her First Amendment rights” which would justify that deviation.

Today, the Supreme Court reversed, holding that it does not violate the First Amendment for a State to require that its public-sector unions receive affirmative authorization from a non-member before spending that non-member’s agency fees for election-related purposes. The court declined to address the application of opt-in requirements to private-sector unions – which, it explained, “collect agency fees through contractually required action taken by private employers rather than by government agencies” and therefore present “a somewhat different constitutional question.”

Justice Scalia delivered the opinion of the Court. Justice Scalia began by pointing out that although Abood v. Detroit Board of Education and Teachers v. Hudson require unions to observe certain procedures to ensure that an objecting non-member can prevent the use of his fees for electioneering purposes, the First Amendment does not require a public-sector union to obtain affirmative consent before spending a non-member’s agency fees for electioneering purposes.

Justice Scalia proceeded to reason that the greater state power to grant or abolish the right to collect union fees from non-members includes the lesser power to set this condition on a particular use. The public-sector agency-shop arrangement, authorizing a union to levy fees on government employees who do not wish to join the union, grants an “unusual” power to a private entity to “in essence . . . tax government employees.” Therefore, he reasoned, section 760 “is simply a condition on the union’s exercise of this extraordinary power.” Because the State could have restricted these fees to cover only collective bargaining or even abolished the fees altogether, this “far less restrictive limitation the voters of Washington placed on respondent’s authorization to exact money from government employees is of no greater constitutional concern.”

Justice Scalia further reasoned that the Court’s jurisprudence did not strike any balance between the rights of unions and non-members “for the simple reason that unions have no constitutional entitlement to the fees of nonmember-employees.” The constitutional right outlined in Abood prevents states and unions from using non-member union fees for certain speech against the wishes of those nonmembers. Justice Scalia agreed with the State that the procedures outlined in cases such as Hudson are merely a “minimum set of procedures by which a [public-sector] union in an agency-shop relationship could meet its requirement under Abood.” States are free to choose procedures exceeding that minimum. Justice Scalia observed that the Washington Supreme Court placed too great an emphasis on the oft-quoted point that “dissent is not to be presumed—it must affirmatively be made known to the union by the dissenting employee” in concluding that the U.S. Supreme Court’s jurisprudence on this matter struck a balance between the First Amendment rights of unions and non-members. That presumption is merely an explanation for why courts should not “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.” Although “courts have an obligation to interfere with a union’s statutory entitlement no more than is necessary to vindicate the rights of nonmembers,” he reasoned, that “does not imply that legislatures (or voters) themselves cannot limit the scope of that entitlement.”

Justice Scalia proceeded to reject WEA’s claim that under the reasoning of Randall v. Sorrell and First National Bank v. Bellotti, section 760 is a restriction on political advocacy and is subject to strict scrutiny. He reasoned that although non-member union fees are lawfully in unions’ possession, it does not follow that these fees belong to the unions to be spent as they wish. The key distinction between section 760 and unconstitutional election spending restrictions is that section 760 is not a ban on spending the “union’s” money; “public-sector agency fees are in the union’s possession only because Washington and its union-contracting government agencies have compelled their employees to pay those fees.” In other words, section 760 is not “a restriction on how the union can spend ‘its’ money” but rather “a condition placed upon the union’s extraordinary state entitlement to acquire and spend other people’s money.”

Furthermore, Justice Scalia reasoned, although this condition separated election-related speech from other types of speech, it is not an unconstitutional, content-based restriction. The reason, he explained, is that it is a “a reasonable, viewpoint-neutral limitation on the State’s general authorization allowing public-sector unions to acquire and spend the money of government employees” and did not “impermissibly distort[] the marketplace of ideas.” Section 760 did not drive any ideas or viewpoints underground because it still permitted unions to engage in election-related speech. Rather, the voters of Washington believed that the “integrity of the election process . . . was being impaired by the infusion of money extracted from nonmembers of unions without their consent”; they therefore fashioned a “restriction on the state-bestowed entitlement” that was “limited to the state-created harm that the voters sought to remedy.”

Justice Breyer, joined by the Chief Justice and Justice Alito, concurred in part and concurred in the judgment. Justice Breyer joined the Court’s holding and its reasoning that past jurisprudence about union fees merely creates a minimum set of safeguards for the rights of nonmembers. However, he would not have addressed the Respondents’ arguments that section 760 unconstitutionally limits a union’s right to conduct election-related speech. In his view, because these arguments were raised for the first time before the U.S. Supreme Court, they should not be addressed until lower courts have had an opportunity to rule on them.

Interestingly, On May 11, 2007, Governor Christine Gregoire of Washington signed into law House Bill 2079 amending section 760 to only apply if a general fund would not have had “sufficient revenues” from sources other than shop fees in order to fund political contributions and expenditures. The parties submitted supplemental briefs about this development which raised the question of whether the case had become moot. However, the Court held that it was not moot because petitioners were seeking damages for the WEA’s violation of section 760 and observed that this legal issue may still arise in Washington, albeit less frequently.