In Davenport v. Washington Education Association, __ U.S. ___ (2007), the United States Supreme Court examined the boundaries within which a State may regulate the political expenditures of a union representing public employees.
This dispute came to the Court by way of a challenge to a Washington statute regulating unions' collection of so-called "agency fees." Agency fees are moneys paid by non-members of a union to a union that represents them for purposes of collective bargaining, notwithstanding the fact that the individuals are not members of the union. As explained by Justice Scalia in his decision, "the primary purpose of such arrangements is to prevent non-members from free-riding on the union's efforts, sharing the employment benefits obtained by the union's collective bargaining without sharing the costs incurred." In prior Supreme Court decisions, the Court had found that non-members of a union had a constitutional right to object to their agency fees being spent for political purposes by the union.
In the Davenport case, a statute was passed by Washington voters in 1992, which provided that a labor organization could not use agency shop fees paid by a non-member to "make contributions or expenditures to influence an election or to operate a political committee, unless affirmatively authorized by the individual."
Several public employee labor organizations were sued in 2001 by non-members, who were paying agency dues, over the issue of whether their practices of collecting and spending agency fees complied with Washington law. The labor organizations in question allowed members to "opt out" of making contributions that would be used for political purposes, but it was the agency dues payer's responsibility to affirmatively inform the union of his or her objections. The unions contended that this practice was consistent with prior Supreme Court precedent in this area, and that a strict interpretation of the statute to require agency dues payers' consent prior to spending the money for political purposes would be an impermissible restraint under the First Amendment. Lower courts were split on the issue, and the Washington Supreme Court favored the unions' position that requiring affirmative consent from employees posed a First Amendment problem.
Justice Scalia began his decision by pointing out that the practice of agency fee collection by public sector unions had a special importance because the ability of a public sector union to collect agency fees arose solely by legislative action. Justice Scalia characterized this practice as "undeniably unusual" because it gave public sector unions the right to "in essence, tax government employees."
One preliminary legal conclusion was central to Justice Scalia's analysis. In the Court's view, the State of Washington could have barred the collection of agency fees altogether or limited their collection to non-political expenses only. As a consequence, he found the mandate of non-member consent to be only a "modest limitation" when compared to a complete bar or statutory limit. The fact that the limitation was viewpoint-neutral and reasonable helped Scalia conclude that it was permissible.
The unions argued that the statute, in effect, was an impermissible limitation on how it spent its money and amounted to a constitutional restraint on its right to free speech. The unions supported their argument with decisions from the Court's line of campaign finance decisions. Justice Scalia rejected this argument, indicating that the unions were not being coerced or restrained, but rather were only being asked to properly account for (and separate) funds being used for political purposes.
As a final note, some watchers of these cases had thought that the Court might extend its decision into the area of private sector unions' political spending as well. The Court explicitly declined to do this, pointing out that such an application of the statute posed different constitutional questions not before the Court. However, Justice Scalia was careful to point out that this should not be read as an endorsement of the idea that a State could not similarly restrict the collection of agency fees by private-sector unions, and, in doing so, might have given a hint, by way of dicta, of the way he might vote if the issue was properly placed before him.
The decision of the Court was unanimous, with Justice Breyer writing a brief concurrence arguing that the unions' arguments concerning the Court's campaign finance cases were not properly preserved during the litigation in the lower courts.
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