Free-speech dispute over union fees

The US Constitution forbids unions from using fees collected from nonunion workers to finance political activities unless the nonmembers grant permission.

Without consent, such action would raise the specter of nonmembers being dragooned into subsidizing political efforts they may not support. And that would violate the free speech and association clauses of the First Amendment.

But how much permission is necessary?

That's the question at the center of two consolidated cases set for oral argument Wednesday at the US Supreme Court.

The cases examine a Washington State campaign-finance law that pits a union's constitutional right to engage in politics on behalf of its like-minded members against a nonmember's right to disassociate from those activities.

The case arises amid a nationwide effort by a number of conservative groups to undercut the ability of union leaders to use compulsory union dues and fees to influence political campaigns without first obtaining the clear permission of those who contributed the money.

The Supreme Court case revolves around fees collected by Washington State's teachers union. If you want to be a teacher in the state, you have to pay a fee to the union, even if you aren't a member. That's because the state Legislature assigned exclusive authority to the union to negotiate pay and other employment issues for all teachers. Nonunion teachers must agree to a payroll deduction equal to the union dues.

The provision requires nonunion members to help pay for benefits that accrue to all the state's teachers through the collective bargaining efforts of the Washington Education Association (WEA).

But this also provides a ready pool of cash to the union for political activities. And that has triggered allegations that the union's use of a portion of the fees for politics is forcing nonmembers to subsidize political speech that they do not support.

A 1992 state campaign-finance law mandates that the 80,000-member union obtain the consent of some 3,000 nonmember teachers before using a portion of their dues for politics. Union officials say they already obtain that consent by offering nonmembers the option of objecting to the political use of their fees.

But a group of current and former teachers say that's not enough. They say the state law requires prior authorization. If no such prior consent is given, the money is off limits for political purposes and must be refunded, they say.

In contrast, the union's current system relies on implied consent. Twice a year, the WEA mails a packet of information to nonmembers telling them they have a right to object to the use of their fees for politics. If they object, the money is refunded. If they do nothing, forget, or otherwise fail to return a form within the 30-day deadline, the union interprets it as permission to use the money for political purposes.

The state campaign-finance law requires the union to determine consent through an opt-in system, while the union insists that its current opt-out system provides nonmembers with enough protection against political coercion.

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