‘Paycheck Protection’ Showdown Looms at U.S. Supreme Court

Published January 1, 2007

The U.S. Supreme Court was expected to review on January 10 a case in which Washington State’s high court overturned a campaign finance regulation known as “paycheck protection” and denied that employees have a right to determine what political speech to support financially.

The National Right to Work Foundation (NRTW), which provided free legal assistance for the effort, used the state court’s decision as an opportunity to challenge a 1961 workers’ rights case.

A U.S. Supreme Court ruling is expected by June.

The state’s 1992 paycheck protection law was designed to require union officials to obtain prior consent from non-union workers before spending their compulsory dues, taken as a condition of employment, on certain political activities. In striking down the law, the state supreme court asserted a constitutional right for union officials to spend the money of employees who disagree with the union’s political spending.

In a dissent joined by two others, Justice Richard B. Sanders argued the March 2006 Washington v. WEA decision “turns the First Amendment on its head.” If upheld, that decision and the court’s companion ruling in Davenport v. Washington Education Association could open the door for union lawyers to try to attack 22 states’ Right to Work laws, which make union affiliation and dues payment strictly voluntary.

“It is absolutely imperative that the nation’s highest court overturn this dangerous precedent that gives union bosses a ‘constitutional right’ to spend forced union dues on politics,” said NRTW President Mark Mix. “In negating the state’s ‘paycheck protection’ regulation, the activist court inflicted serious collateral damage on the First Amendment and worker freedom.”

If union officials have a constitutional right to spend non-union employees’ forced dues on politics, union attorneys could argue states violate the First Amendment by banning forced union dues altogether, Mix noted.

Forced Payment

In 2001, NRTW attorneys filed the Davenport class-action lawsuit in Washington Superior Court on behalf of 4,000 non-union teachers forced to pay union dues or be fired. The WEA had seized $10 to $25 annually from each, violating provisions of the state’s campaign finance law.

Even if the paycheck protection statute had achieved its goal, under Davenport non-union employees would have been refunded only $10 to $25 per year, as most of the union’s political expenditures fall outside the law’s deliberately narrow definition of politics.

Because the law left intact all forced unionism privileges, covered only a fraction of state and local electioneering expenditures, and didn’t touch other political and non-bargaining expenditures, the WEA union hierarchy was able to collect and spend more money on politics after the law took effect, Mix said. The union simply changed its accounting practices and then increased forced union dues even higher.

Analysts at several free-market think tanks–including The Heritage Foundation, Public Service Research Council, Mackinac Center for Public Policy, and Capital Research Center–found the WEA spent 60 percent more on political activities after the law took effect.

Broader Relief

The precedents won in 1986 with Chicago Teachers Union v. Hudson allow broader relief to employees–an annual reduction of $200 to $300 in their forced dues attributable to all union politics, lobbying public relations, and other non-bargaining costs.

Because of the legal issues involved in Davenport, NRTW attorneys are challenging a doctrine stemming from a 45-year-old Supreme Court ruling, Machinists v. Street, which union bosses have used to hamstring workers who do not want to pay for union politics.

Street was one of the earliest Supreme Court cases dealing with forced unionism. The case involved both dues-paying union members and non-members threatened with discharge for not joining the union. Although the Court found workers have a right to withhold forced dues for politics, “dissent is not to be presumed.”

Union bosses use those six words to place extraordinary burdens on workers, especially non-union members. The Washington Supreme Court used those words to justify its decision in Davenport.

‘Presumed Dissent’

The labor unions argue that even if employees take the dramatic step of resigning from union membership, they can’t be “presumed” to dissent from paying full dues, including those spent for non-bargaining activities such as electioneering, lobbying, and public relations.

Mix said it’s ridiculous to suppose that when someone quits a union or never joins he or she nevertheless somehow supports it. The result of this logic has been dramatic: Union bosses have used it to justify setting up procedures that make non-members submit objections during narrow annual “window periods” to get refunds of forced dues to which they are already entitled.

That is why the Washington non-union teachers in Davenport had not already received the $200 to $300 rebate they deserved, Mix said.

Non-Member Distinction

In addition, Ray LaJeunesse, NRTW’s vice president and legal director, said if the Court focuses on this legal issue and clarifies that an employee registers sufficient dissent through the act of refusing membership in the union, then every forced-dues-paying non-union member nationwide automatically will be entitled to a reduction in forced dues.

“If NRTW attorneys can persuade the U.S. Supreme Court to make it clear that the ‘dissent is not to be presumed’ doctrine logically applies only to members,” LaJeunesse said, “unions will rue the day Davenport made its way to the nation’s highest court.”

Six states, two federal agencies, 27 public policy groups, and several legal foundations and independent teacher organizations have filed amicus briefs supporting the non-union teachers’ position.

“Let’s hope that the U.S. Supreme Court gives the Washington judges some remedial instruction about the First Amendment,” said Mix. “And let’s further hope that our nation’s highest court clarifies that when someone resigns from a union, it means they are indeed a dissenter.”

Stefan Gleason ([email protected]) is vice president of the National Right to Work Legal Defense Foundation.

For more information …

A National Right to Work Foundation summary of the issues involved in Davenport v. WEA is available through PolicyBot™, The Heartland Institute’s free online research database. Point your Web browser to http://www.policybot.org and search for document #20306.