Free-speech dispute over union fees

The Washington Supreme Court agreed with the union. It declared by a 6-to-3 vote that the state's tougher affirmative consent law violated WEA's right to use union funds for political advocacy without facing government-imposed restraints.

"The union's [opt-out] procedures amount to a constitutionally permissible alternative that adequately protects both the union and dissenters," the Washington Supreme Court declared.

Lawyers for the nonmember teachers argue in their brief to the US Supreme Court that the state high court "repeatedly misapplied and misinterpreted the First Amendment."

The case is about the free-speech rights of nonunion members, not the union itself, says Milton Chappell, a lawyer with the National Right to Work Legal Defense Foundation, which is representing a group of nonmember teachers in the case.

He says the union favors the opt-out system because it maximizes political dollars collected by the union. But, he says, it does little to ascertain whether nonmembers truly intend that their fees be used to support the political preferences of a labor organization they refuse to join.

"We are not against unions or anyone wanting to join them," Mr. Chappell says. "But for those people who have decided for whatever reason that they do not or cannot join or support a union, we believe that their rights should be protected."

Debra Carnes, a spokeswoman for the WEA, says the legal battle is aimed at undercutting the power of unions. "This is much bigger than WEA and opt-in or opt-out," she says. "The goal is to dry up the money so unions have no collective voice."

Lawyers for the WEA say in their brief that the campaign-finance law hinders the union's ability to engage in political speech by imposing restrictions on the use of funds lawfully held in the union's treasury. The state law requires burdensome record-keeping and accounting procedures that undercut its ability to engage in political action, they say.

Overall, nonmember fees make up 4 percent of the union's total revenue, according to briefs in the case.

"Far from abridging unions' freedom of speech, Washington's opt-in requirement leaves unions free to speak on any topic of their choosing, at any time or place, and in any manner," writes Solicitor General Paul Clement, in a friend-of-the-court brief filed in support of the state.

He says federal campaign-finance laws bar unions from spending any union treasury funds to influence federal elections – even funds obtained by member dues. The courts have upheld the constitutionality of such restrictions in federal elections, so it follows that Washington State's more modest opt-in requirement is also constitutional, Mr. Clement says.

One potential key to the case may be how the high court interprets a clause contained in a 1961 Supreme Court decision. "Dissent is not to be presumed – it must affirmatively be made known to the union by the dissenting employee," the high court declared in a case called Machinists v. Street.

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