Justices Hear Case on Right of Unions to Use Nonmembers' Dues

By Robert Barnes
Washington Post Staff Writer
Thursday, January 11, 2007

First Amendment rights are threatened in the state of Washington, the Supreme Court was told yesterday, but it will be up to the justices to decide who needs protection.

The Washington Education Association, the state's largest teachers union, said its freedoms would be endangered by a state law that would increase restrictions on the union's ability to use workers' money for political causes.

On the other side are workers who do not join the union but under state law must pay dues anyway. They say their money should not be used for the union's election causes without their explicit approval.

The issue could be boiled down to a somewhat straightforward question: Is it enough that nonmembers have the chance to opt out of having a portion of their money spent on political activism, or may states put the onus on the unions, forcing them to get explicit approval from each worker?

The issue is somewhat narrow, but the case has drawn special attention from the politically influential AFL-CIO on one side, and from conservative legal groups and national right-to-work organizations that want to limit the power of unions on the other.

The Washington Supreme Court ruled last year that the state's law requiring the union to get affirmative authorization from nonmembers was unconstitutionally burdensome.

"This has the practical effect of inhibiting one group's political speech (the union and supporting nonmembers) for the improper purpose of increasing the speech of another group (the dissenting nonmembers)," the state court ruled.

Justice Anthony M. Kennedy seemed to see it just the opposite way yesterday, saying it appeared to him that Washington had acted properly to protect the rights of nonmembers. He told union attorney John West: "You want us to consider the case as if the First Amendment rights of nonunion members were not involved."

West said that was not true, and that the Supreme Court in the past had found that those workers were properly protected by giving them the right to opt out of having their dues spent for political purposes. Those workers can object "simply by sending in a letter," West said.

"So it's a First Amendment right that is waived by failing to make a timely objection," Justice John Paul Stevens responded.

Justice Samuel A. Alito Jr. and Washington Attorney General Robert McKenna (R), who was defending the state law, seemed to agree that nonmembers have already made a statement about the union's political activities when they decided not to join. "They shouldn't be required to say no twice," McKenna said.

The Bush administration also joined the case in opposition to the union's position.

In practice, only about 5 percent of the teachers and other educational personnel eligible to join the Washington Education Association choose not to become members. The state nevertheless requires them to pay dues, and about 75 percent of that money is spent on collective-bargaining efforts. West said the other share spent on political purposes is used to support or oppose ballot issues rather than being used for candidate campaigns.

The consolidated cases the court heard yesterday are Davenport v. Washington Education Association, 05-1589, and Washington v. Washington Education Association, 05-1657.

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