The U.S. Supreme Court recently heard oral arguments in the consolidated cases of Washington vs. Washington Education Association and Davenport vs. WEA, which could have major implications for organized labor and the free-speech rights of workers nationwide.
Organized labor's numbers have been plummeting for decades. The U.S. Department of Labor reported in January that the number of union members is at a record low. Over the last year, the percentage of union workers has declined in 31 states. Today, only 12 percent of workers are members of a union, compared with 35 percent in the 1950s. As a result, labor unions fight any common-sense measures that give workers a choice whether to pay dues.
The cases before the Supreme Court came out of Washington state, where workers can be required to pay union dues as a condition of employment. In 1992, the state passed a law requiring unions to get permission from these nonmembers before using their mandatory dues on political activity. The Washington Education Association (WEA) ran afoul of this law in 2001 after my organization, the Evergreen Freedom Foundation, filed a complaint with the state attorney general. A trial court fined the WEA $590,375 for its intentional violations. Amazingly, the state Supreme Court threw the law out as an "undue administrative burden" on the union's free-speech rights.
Washington Attorney General Rob McKenna and a group of concerned teachers appealed the cases to the U.S. Supreme Court. The Supreme Court has held that workers cannot be forced to pay for a union's ideological activities in several landmark cases, including Abood vs. Detroit Board of Education and Communications Workers of America vs. Beck. Typically, workers have an opportunity to object to a union's spending and can get a refund of dues. The unique question in the Washington cases, however, was whether states can require unions to get permission before spending dues on politics.
If the questions from the justices are any indication, the court could be poised to issue a ruling that reshapes national labor policy.
The WEA claimed the requirement to get permission imposed an "insurmountable hurdle" that "cuts deeply" into the rights of the union. Justice Anthony M. Kennedy repeatedly scolded the union lawyer for ignoring the rights of teachers. "You begin by talking about the First Amendment, but you proceed as if there are no First Amendment rights of workers involved at all," he said.
At least four justices asked how the Washington law could be unconstitutional when past court decisions have allowed even broader regulation of unions. When the WEA lawyer replied that nonmember rights are "fully protected" under current case law, Justice David H. Souter asked, "Why can't the state protect it more?"
The WEA lawyer argued that the law is flawed because it regulates only unions, leaving corporations and trade associations untouched. The justices seemed to reject this argument. The union doesn't own the funds, pointed out Justice Ruth Bader Ginsburg. "If the nonmember wants it back, the nonmember would be entitled," she said.
Justice Antonin Scalia was even more forceful. Unions are given "extraordinary power to exact funds from people," he said, "but only for certain purposes. ... The state says, however, you will not use this money for this purpose without their consent."
Chief Justice John G. Roberts Jr. appeared to agree that teachers should have final say: "Well surely, they get to make that decision, don't they? Under the statute, it's their decision."
Arguing in favor of teachers' rights, Mr. McKenna summarized the issue vividly. These individuals have resigned from the union, and it's reasonable to assume they don't want their money spent on the union's political priorities. "Nonmembers should not be required to say no twice," he said.
If the Supreme Court rules in favor of the teachers, union officials will have to learn a lesson every first-grader is taught: You must ask permission before taking something that does not belong to you.
Michael Reitz is legal counsel of the Evergreen Freedom Foundation, a free-market think tank in Olympia, Wash. Information on the cases is available at www.teachers-vs-union.org. His e-mail is email@example.com.