Monday, December 3, 2007

Hutchinson on The First Amendment and Union Dues Restrictions

Hutchison05 Harry Hutchinson (George Mason) has posted on SSRN his forthcoming piece: Reclaiming the First Amendment through Union Dues Restrictions?

Here's the abstract:

In its recent Davenport v. Washington Education Association decision, the United States Supreme Court unanimously enforced a Washington State paycheck protection initiative that placed restrictions on the extraction of labor union dues for political purposes. This decision appears to substantiate the free speech interest of union dissenters. This case also provides an additional example of the ongoing conflict between individual and group interest and between individual and group preferences that have erupted in a society that appears to be falling apart. In such a society the myth of the “universal worker” is collapsing in the face of escalating incredulity, and an increasing focus on autonomy. Although human autonomy may find some protection in the First Amendment, I argue that the Supreme Court's holding in this case cannot fully vindicate individual liberty despite the claims and counter-claims of a number of observers. Correctly understood, this decision promises little and delivers less because it fails to deal decisively and comprehensively with issues that both earlier private sector and public sector union dues disputes illuminated but failed to settle. Tied to earlier precedent, the Davenport case falls short of recapturing fully the First Amendment values of expression and association.

This article represents an extension of my prior work that has considered the union dues controversy. I provide arguments, recommendations and some speculations that are aimed at reclaiming human autonomy, individual liberty and a principled understanding of First Amendment ideals. However ultimately, I suggest the implausibility of recapturing a principled understanding of the First Amendment in a society torn apart by simmering disagreement. While the Supreme Court rightly enforced Washington State's dues restrictions, it is unlikely that paycheck protection legislation or referenda can rescue First Amendment rights and values from adjudication that transforms principle into a wobbly platform.

The Davenport case was the subject of much conversation on this blog and elsewhere this year. It will be interesting to read how Harry proposes to reconcile the collective nature of unions with the First Amendment rights of individuals in the union dues setting.


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A dose of reality - when a union is really strong (along the lines necessary for survival in the current legal environment), everybody joins. Period. These cases only arise when employees know that their union can't get, in particular, a first contract, can't strike, and can't compel an employer even to bargain over minor but psychologically important workaday labor disputes. When I was a union official I always counseled not fighting over this issue. In fact, my Teamster Local had a practice back in the 1980s of not deducting or collecting any union dues from a non-member (we didn't want their money). The membership was so solid that a non-member knew that he or she would not be having so much as a a cup of coffee with a member during the course of a disaffiliation. No threats. No violence. Just complete ostracism. Very effective. If a union has to fight over whether non-members should have to pay dues, it as already lost the game.

Posted by: Michael Duff | Dec 4, 2007 8:20:18 AM

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