Thursday, June 14, 2007
Thanks to Jeff for getting a summary of Davenport v. Washington Ed. Assn., Nos. 05-1589 and 05-1657 (U.S. June 14, 2007) (the Breyer concurrence is here) up so quickly. The case holds that the State of Washington was not prohibited under the First Amendment from keeping public-sector labor unions from using the agency-shop fees of a nonmember for election-related purposes unless the nonmember affirmatively consents (our previous posts about the case are here, here, here, and here).
Now I have had a chance to read the decision (and who in their right mind could pass on one of the few public labor law cases heard by the Court!), here are my thoughts:
1. Surprise. I thought this case would be remanded back to the lower courts without a decision as a result of the amendment to the Washington law in question. That amendment seems to moot the constitutional issue about whether Washington State could go beyond what Abood v. Detroit Bd. of Ed., 431 U. S. 209, 235–236 (1977) requires (giving nonmembers the chance to opt-out) and make union nonmembers opt-in before using their union fees for ideological purposes. The amendment clearly exempts union from having to follow the opt-in procedure, so what gives? It's all about money. Justice Scalia, writing for the court, explains in footnote 1: "As respondent concedes, . . . these cases are not moot. Because petitioners sought money damages for respondent’s alleged violation of the prior version of §760, it still matters whether the Supreme Court of Washington was correct to hold that that version was inconsistent with the First Amendment." But won't this opinion also act to put other states on notice about what they can and cannot do as far as public-sector union agency fees?
2. No surprise. On the merits, I thought this case would come out against the union. The only surprise here is that I predicted 7-2 and it was 9-0 (albeit with three judges concurring). But to be fair to Rick Hasen who predicted a 9-0 outcome (and to Eugene Volokhn, who wrote an amici brief for the winning side), the concurrence does not represent a substantive disagreement (see point #5 below).
3. Whatever the merits in deciding this case, the important point is that States can beyond what is constitutionally required at the minimum and provide more restrictions when the constitution only sets the floor and not the ceiling:
The notion that this modest limitation upon an extraordinary benefit violates the First Amendment is, to say the least, counterintuitive. Respondent concedes that Washington could have gone much further, restricting public-sector agency fees to the portion of union dues devoted to collective bargaining . . . . Indeed, it is uncontested that it would be constitutional for Washington to eliminate agency fees entirely . . . . For the reasons that follow, we conclude that the far less restrictive limitation the voters of Washington placed on respondent’s authorization to exact money from government employees is of no greater constitutional concern . . . .
The mere fact that Washington required more than the Hudson minimum does not trigger First Amendment scrutiny. The constitutional floor for unions’ collection and spending of agency fees is not also a constitutional ceiling for state-imposed restrictions.
This is an important point not only for this case, but also for other cases which rest on the distinction between what is required and what is permitted by the Constitution (see, for instance, the Establishment Clause case of Locke v. Davey).
4. This case only applies to public-sector unions not under the jurisdiction of the National Labor Relations Act (NLRA). Justice Scalia in his majority opinion was clear that this decision has no impact on agency fee arrangements in the private-sector:
We emphasize an important limitation upon our holding: we uphold §760 only as applied to public-sector unions such as respondent. Section 760 applies on its face to both public- and private-sector unions in Washington. Since private-sector unions collect agency fees through contractually required action taken by private employers rather than by government agencies, Washington’s regulation of those private arrangements presents a somewhat different constitutional question. We need not answer that question today, however, because at no stage of this litigation has respondent made an overbreadth challenge.
5. Justice Breyer's concurrence, joined by the Chief Justice and Justice Alito, was not about disagreeing with the outcome of the case, but a disagreement over Supreme Court procedure. Justice Breyer did not believe that certain arguments (involving election law and content-based discrimination under the First Amendment) should be addressed because they were not raised below. The surprise here is that Justices Scalia and Thomas, usually sticklers for this type of procedure, did not follow this usually sound piece of appellate practice.
6. The Court found that the Supreme Court of Washington improperly relied on the expressive association case of Boy Scouts of America v. Dale, 530 U. S. 640 (2000) because "Section 760 does not compel respondent’s acceptance of unwanted members or otherwise make union membership less attractive."
All in all, I guess an important outcome for those nonmembers who wanted their money back from the union, but the greater import of this case will depend on how many states in the future decide to use the affirmative opt-in procedure that Washington initially adopted and subsequently amended out its statute for unions.