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.
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.