The U.S. Supreme Court is contemplating the difference between saying yes and not saying no.
That distinction came up repeatedly in arguments last week in a case testing the constitutionality of a Washington state law that requires nonunion teachers to “affirmatively consent,” or opt in, before a teachers’ union may spend money from “agency fees” on political campaigns and similar activism.
Five nonunion teachers and the state of Washington sued the Washington Education Association, the state’s largest teachers’ union, for allegedly violating the state law, resulting in two appeals that were consolidated by the high court, Davenport v. Washington Education Association and Washington v. Washington Education Association (Case Nos. 05-1589 and 05-1657).
The case argued Jan. 10 is being watched nationally as part of a struggle between anti-union and pro-labor groups over the influence of unions in political campaigns.
The teachers’ union only ends its political use of a nonunion teacher’s agency fees when the teacher sends a letter opting out of such use. State law authorizes the agency fees, which ostensibly cover the costs of collective bargaining activities from which even nonunion members benefit.
The Washington Supreme Court, the state’s highest court, ruled last year that the opt-in provision in Section 760 of a campaign-integrity law that was passed by voter initiative in 1992 places an impermissible burden on the union’s First Amendment free-speech rights.
But in arguments last week, the question that seemed especially to bother the justices was why the union should be presumed to speak politically for teachers who have chosen not to join its ranks.
“If I’m a union member, I get various benefits,” Justice Samuel A. Alito Jr. said to John M. West, the lawyer for the 80,000-member WEA, an affiliate of the National Education Association. “If I choose not to be a union member, I don’t get those benefits. Why would I choose to give up the benefits of union membership and yet want to allow the union to spend my money for its political purposes?”
Mr. West replied that a nonmember of the union might still support union political goals such as increases in teachers’ cost- of-living raises and higher tax levies for education.
Teachers might choose not to join a union “whether from a free-rider motivation [or] whether from just not being a joiner,” not necessarily out of opposition to its views, Mr. West said.
“The union here is using this money for purposes that it has every reason to believe is in the interest of the vast majority of teachers,” he said at another point.
“Well, surely [the nonunion teachers] get to make that decision, don’t they?” Chief Justice John G. Roberts Jr. interrupted. “Under the state statute, it’s their decision whether or not. You don’t get to say, ‘Well, this is in your interests,’ ” he said.
Gary Davenport, a former high school history teacher who was one of the five nonunion teachers who challenged the WEA’s political use of his agency fees, was present in the courtroom for the hour of argument on the case.
“To say that the First Amendment rights of a large organization are more important than my First Amendment rights seems absurd,” Mr. Davenport said afterward, on the outdoor plaza of the Supreme Court building.
Competing Speech Rights
That comment echoed a line of argument taken by U.S. Solicitor General Paul D. Clement, representing the Bush administration in support of the nonunion teachers and Washington state.
Washington’s highest court “struck the [opt-in] statute down only by treating the worker’s minimum constitutional rights as a constitutional ceiling as well as a floor,” Mr. Clement said.
In fact, however, “the rights that are at issue in this area principally are the rights of the individual workers,” Mr. Clement said.
He went on to remind the justices that, because of the potential impact on workers’ First Amendment rights, the Supreme Court has found “forced extraction of fees is justified only to the extent that it can be justified by the government’s interest in maintaining labor peace or in avoiding free ridership.”
Robert M. McKenna, the attorney general of Washington state, argued that the state “opt-in” law was intended to preserve the integrity of the election process, in part, by reducing the influence of large organizations.
“We believe that the integrity of the election process … is in fact served by helping ensure that individuals make voluntary contributions,” he said.
One subtle difference in the arguments of the two parties challenging the WEA in the consolidated cases is that Mr. Davenport and the other teachers are asking the Supreme Court to stop the union from taking mandatory dues for union politics from the paychecks of nonunion members in the first place.
Washington state urges the court simply to uphold its “paycheck protection” law that requires teachers to opt in before political use.
Fees an ‘Anomaly’
Mr. Clement, the Bush administration lawyer, did not join the nonunion teachers in their position on collection of agency fees, but he defended the state’s right to put the union’s political use of them under a microscope.
“That the unions have a right to effectively take a claim on the paycheck on people who are nonmembers of the union—these are individuals who have already opted out of union membership, and that is a sufficient anomaly, and sufficiently unlike any other context, that I think there is nothing that prevents the state of Washington from targeting that problem and that problem alone,” Mr. Clement said.
Even Justice Ruth Bader Ginsburg, who seemed the most sympathetic to the union, was troubled by the WEA’s apparent sense of entitlement to the nonunion members’ fees.
She told Mr. West, the union’s lawyer, “You were very careful in your brief to say funds lawfully possessed by the union, as distinguished from what’s in a corporate treasury or—there is something peculiar about this—and you recognized it by saying ‘we possess them,’ because if the nonmember wants it back, the nonmember would be entitled. So it’s not like money in the corporate till.”
“Well it is, Justice Ginsburg,” Mr. West objected. “This is why the purpose of the statute is so important.”
Mr. West explained that the statute’s main goal was to protect the integrity of elections and suggested that the question of whether political spending represents the views of those who contributed the money could also be asked about other organizations—for example, the Michigan chamber of commerce.
At that point, Justice Anthony M. Kennedy asked Mr. West whether he placed the speech rights of nonunion workers at the same level as that of the union.
“We recognize that the nonmembers have First Amendment rights,” but believe that those are amply protected by the ability to opt out, Mr. West said.
The court is expected to rule in the case by late June.
