Alito challenges unions on spending non members money on campaigns

NY Times:

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Justice Alito appeared particularly energized by the case, a defense by the state of Washington of a provision of its campaign law that bars unions from spending nonmembers’ fees on political activity without first receiving permission.

This “opt-in” provision of the Washington law, adopted by referendum in 1992 as part of a broad campaign finance measure, goes a step beyond the protection for nonmembers that the Supreme Court has found to be constitutionally required. The court has required unions to permit nonmembers to “opt out” of having their fees used for any purpose that is not “germane” to the union’s collective bargaining responsibilities.

Under federal labor law, states may authorize “union shop” provisions under which employees who choose not to join the union must pay fees to support the union’s collective bargaining.

The Washington Supreme Court held in this case that requiring the union to receive affirmative permission before spending nonmembers’ money on election-related activity imposed an unconstitutional burden on a union’s right of free speech and association.

The state teachers’ union is defending that judgment, while the state and a group of teachers, represented by the National Right to Work Legal Defense Foundation, challenged it in separate appeals. The justices consolidated the cases, Davenport v. Washington Education Association, No. 05-1589, and Washington v. Washington Education Association, No. 05-1657, for a single argument.

The Bush administration entered the case on the state’s side. Solicitor General Paul D. Clement said the Washington Supreme Court had “rigidly constitutionalized an area of labor law” that should be left to the “substantial discretion” of the states and the federal government.

Mr. Clement said that just because “as a minimum constitutional matter, the workers have to have an opt-out right” did not mean that a state could not go further and provide that the union could not spend nonmembers’ money on politics unless those workers affirmatively agreed.

That argument seemed to appeal to Justice Alito. “Why should the First Amendment permit anything other than an opt-in scheme?” he asked.

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“Isn’t it overwhelmingly likely,” Justice Alito asked Mr. West, that if nonmembers were asked whether they wanted to “give money to the union to spend on elections, they would say no?”

Mr. West said he “absolutely” disagreed, explaining that the union used its political money to campaign for higher taxes to support local school districts and other purposes “that it has every reason to believe is in the interest of the vast majority of teachers.”

Chief Justice John G. Roberts Jr. sounded unpersuaded. “Well, surely,” he said, “you don’t get to say, well, this is in your interest, whether you want to spend the money or not.”

Justice Anthony M. Kennedy was also critical of the union’s position. “You want us to consider this case as if the First Amendment rights of non-union members were not involved,” he told Mr. West on two occasions.

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Way to go Sam Alito. The unions have a weak case here and the Washington Supreme Court had to use some convoluted reasoning to find the referendum provisions unconstitutional when a fair reading of the constitution would lead most people to the opposite conclusion. I am not sure the Court will adopt an opt in ruling in all cases, but it can surely uphold the Washington referendum.