There's nothing clear about the legal claims in this morning's consolidated cases of Davenport v. WEA and Washington v. WEA. Indeed the constitutional questions before the court are so fuzzy that the justices spend loads of time just trying to clarify with the advocates precisely what these constitutional questions are.
At issue is Section 760 of Washington State's Fair Campaign Practices Act, adopted in 1992 by state voters as part of a larger campaign-finance-reform law. 760 targets state unions, but this case is not about union members. It's about the nonmembers who are nevertheless assessed "agency fees" that go toward collective bargaining and other union activities from which they presumably benefit. Prior cases have held that those fees cannot be used toward political or ideological activities to which the nonmember would object. Thus, unions give nonmembers the power to "opt out" of any union activities not "germane" to collective bargaining—notably lobbying or political campaigning for ballot initiatives.
But Section 760 went further, requiring unions in Washington to refrain from using those agency fees for political activity unless the nonmembers "affirmatively authorize" them to do so. The burden was essentially shifted from objecting members to the unions, to protect the free-speech interests of nonmembers.
Remember that first day of college, when the dean of students explained to the young women that 19-year-old boys would be inclined to grope them pretty much constantly for the next four years unless they yelled, "No"? Section 760 more or less shifted the burden to the boys to ask if the girls want to be groped.
There are about 80,000 teachers represented by the Washington Education Association—the big teachers union whose case is before the court today, of whom only about 4,000 declined to join the union. The teachers union estimates that the amount of money per person, per year that goes from the pockets of nonmembers to political activity is about $10 per person. Still, the union's current opt-out system makes it arduous for nonmembers to reclaim their funds, requiring them to wade through dozens of pages of materials, write a letter, and mail it back, and do all this faster than the Flash in order to get their refund. No wonder unions don't want to shift to a system where they'd need to get affirmative consent.
In a 6-3 decision, the Washington State Supreme Court struck down Section 760 as unconstitutional, saying the whole provision burdened the First Amendment rights of labor unions. The state of Washington, backed by various conservative legal foundations, anti-union groups, and the Bush Justice Department, appealed. The Supreme Court agreed to hear the case.
State Attorney General Robert M. McKenna defends the opt-in requirement by characterizing it as part and parcel of a broader effort to promote electoral integrity. Justice Stephen Breyer wonders why this law targeted only unions as opposed to "the local swim team, or bar association, or corporation?" Justice Anthony Kennedy wonders whether the Supreme Court can simply disregard the constitutional conclusion of a state supreme court on a matter of state law. Breyer asks whether the non-union-members get their money back, or if the union can simply spend it on something else?
McKenna points out that crafting an opt-in system isn't a big deal for the unions; they'd merely need to send out an additional form: "When the WEA chose to form a PAC they did a good job of soliciting members. They include a very convenient form encouraging people to check off and send their dues ... yet they have no such form for the opt-out process." Then McKenna sits down (rather abruptly), and Solicitor General Paul Clement takes over arguing Washington's side. Clement uses the same language Scalia will use all morning to describe the unions' "forced extraction of fees" from nonmembers—the constitutional equivalent of pulling teeth without Novocaine.
John West, who represents the teachers union, faces rougher sledding. Kennedy asks him immediately whether, under his view of the case, "the First Amendment rights of the nonmembers are irrelevant?" West shifts his argument slightly to emphasize a claim that the law represents a content-based ban on certain types of political advocacy by unions, gutting core First Amendment rights. Justice David Souter questions whether the funds in question are truly the union's funds.
Scalia continues to club West about the state's "extraordinary power to exact funds from people," gleefully describing the "government as coercer." Justice John Paul Stevens asks whether a far-broader law, limiting unions from participating in any activity beyond those germane to collective bargaining, would be constitutionally permissible since it doesn't single out political speech. When West tries to answer him, Stevens blurts, "Can you just tell me yes or no and then explain?" West replies, "Yes and no," which cracks up the gallery, but not so much the justices.
Justice Sam Alito gets at the heart of the case when he disputes West's assumption that perhaps nonmembers of the union would nevertheless love to see their fees go to union political activity. "These are teachers who have chosen not to join the WEA, right?" Alito asks. "Then isn't it overwhelmingly likely that they, if you spoke to them and said would you like to give money to the union to spend on elections, they would say no?" He is baffled, adding, "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?"
West says he "absolutely disagrees" with that presumption, but it's hard to see why.
Attorney General McKenna makes this same point rather nicely in his rebuttal: "The state of Washington's position," he says, "is that nonmembers should not be required to say no twice. They said no when they chose not to join the union. The union's position now is 'we get to use your money for political purposes unless you say no a second time.' "
This probably isn't good news for the unions, which are about to see their power to engage in political advocacy sharply limited by the high court. But as the justices seem mostly to agree today, it's certainly not illogical to assume that if that cute freshman from your Russian-lit class already told you she didn't want to go on a date with you, it's a pretty safe bet she doesn't want to have sex with you, either.