Friday, November 17, 2006

Volokh Files Amicus Brief In Supreme Court Union Dues Case

WashingtonstateUpdate:  Oral argument is scheduled in the case for January 10, 2007.  Other briefs can be found here.

Eugene Volokh of the Volokh Conspiracy has posted on-line the amicus brief he filed with co-counsel on behalf of the American Legislative Exchange Council in the Davenport v. Washington Education Association case on which the United States Supreme Court has granted cert. (previous post about the case here by Jeff Hirsch).

To remind readers, this is a case concerning union dues of public employees in the State of Washington and whether a so-called opt-in mechanism for allowing nonmember union dues to be used for electioneering purposes complies with the First Amendment.  The Washington Supreme Court found that such an opt-in provision violated constitutional rights of the union, while Eugene and co-counsel sharply disagree.

Here is some of what Eugene and co-counsel had to say in their amicus brief:

Washington law balances the compulsion to contribute agency shop fees with safeguards to ensure that public employee unions cannot use those compelled contributions for political, nonbargaining activity unless the contributing nonmembers agree. Section 760 protects the nonmembers by providing that, before a union uses those fees to influence an election or to operate a political committee, it must get the nonmembers’ affirmative authorization. The union of course remains free to spend without hindrance every penny of its members’ dues, plus that portion of the agency shop fees not devoted to the excluded political activity.

A union, like any expressive association, has the right to fund political expression out of dues paid by voluntary members and contributions affirmatively authorized by nonmembers. But no association has a First Amendment right to fund election advocacy using money that was coercively extracted from nonmembers who have not affirmatively authorized its expenditure for that purpose. No case from this Court even hints at any such right, and there is no justification for this Court to create such a right now.

Unless state law compelled nonmembers to pay agency shop fees, this case would not exist, as only the voluntary dues of union members would be at issue. Here, however, Washington has decided that its interest in preserving the agency shop did not reach far enough to justify the use of nonmembers’ compelled payments for political purposes without the nonmembers’ express consent. Nothing compelled Washington to allow unions to force payment of agency shop fees at all. Washington surely has the leeway to limit the use of those fees in the way it has here.

This is a short and to-the-point appellate argument, basically arguing that the Constitution sets a floor in requiring an opt-out mechanism for nonmembers of a union who do not want to support political advocacy they do not agree with, but that the First Amendment does not establish a ceiling such that Washington cannot experiment with an opt-in procedure which requires nonmembers to affirmatively signal that they want their union dues used for electioneering purposes.

Whether you agree with this point or not, Eugene's brief is a model of clarity in setting forth the relevant considerations in this case.


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