The U.S. Supreme Court next month has a chance to teach some important lessons to a major teachers’ union — and to the Washington state high court that acted as the teachers’ union pet.
In the case of Davenport v. Washington Education Association (henceforth the WEA), the Washington State Supreme Court upended at least three separate legal principles. If the state court’s ruling stands, the union will be allowed, against the express intent of the state Legislature, to use the compulsory dues of non-members for political purposes without the workers’ direct consent.
You read that correctly: At issue are workers who specifically chose not to join the union. Yet without their express consent, dues are deducted from their paychecks not just for collective bargaining but also for union-backed politics. And the state high court ruled that the same state Legislature that created the system of compulsory dues has no constitutional right to protect those workers from the misuse of those dues.
The principles abused by the Washington court are obvious. First, the court confuses statutory authority with constitutional imperatives. Second, the court creates a non-existent First Amendment right for a union while withholding an obvious First Amendment right from individuals. Third, this supremely activist court shows a severely insufficient deference to legislative prerogatives.
A tiny bit of background is in order. Unlike at least 22 other states that, with the U.S. Supreme Court’s express permission, prohibit compulsory union dues, Washington State requires such dues to be paid under certain circumstances. In doing so, however, Washington lawmakers require that the unions in question seek affirmative consent from non-members before using those fees for politics. In other words, the law says such non-members’ fees are safe from political use unless the non-members opt in to such use. The WEA, however, has been using those dues for political purposes unless the non-members specifically opt out of such “representation.”
Bizarrely, the state court (in a sharply split decision) ruled that although the Constitution does not guarantee the union an automatic right to assess such fees on non-members, it does give the union the right to a particular means of collecting such fees. Thus does a power that is optional to begin with get transmuted to one that is (supposedly) a protected constitutional right. Go figure.
There went the first principle down the drain.
As for the second principle, the court forgets that constitutional rights are possessed first and foremost by individuals rather than by groups. Somehow the court goes from noting the First Amendment right of individuals to associate for political purposes to asserting that the right extends to the use of funds from those who choose not to so associate. With unintentional irony, the court writes that “the freedom to associate encompasses the freedom to contribute financially to an organization for the purpose of spreading a political message.” But the very definition of “freedom” of necessity implies the freedom not to contribute financially.
The court advances some balderdash about how the restrictions on political use of forced dues amount to the “majority” somehow “being silenced by the dissenters.” But as the Solicitor General of the United States aptly notes in an amicus brief, “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. Nor does it restrict the amount of money unions can raise or spend on speech.”
As for the third principle, it is well accepted that courts should not lightly intervene in legislative judgments. In fact, courts ought to apply at most only a moderate scrutiny to legislative enactments — in other words, to assume the laws pass muster as long as courts can discern a “rational basis” for them — unless a fundamental right is so threatened that it requires “strict scrutiny” of the sort that presumes from the start that the legislators probably erred. Only a dangerously hyper-activist court would apply “strict scrutiny” in the area of compulsory union dues, because the courts themselves admit that the states have free rein to absolutely forbid all such dues collections. If compulsory dues themselves are not a fundamental right, how can a specific means of assessing those dues be fundamental?
It can’t and it isn’t.
In their brief against the WEA, the aggrieved non-WEA teachers provide an admirably long list of U.S. Supreme Court cases that support their commonsense argument that they can’t be forced, even by default, to give money to political causes they oppose. The Washington high court’s alternative is tyranny. It must not stand.
Examiner columnist Quin Hillyer is a senior editor of The American Spectator.
