Today the U.S. Supreme Court issued a unanimous decision in Davenport v. Washington Education Association, reversing the lower court and upholding a Washington law that prohibits the state’s public sector unions from spending non-member agency fees on political activity without those non-members first granting their consent. Supporters of campaign finance regulation had hoped to use the case as justification for further restrictions on political speech, but today’s opinion, even while upholding the Washington law, dashes the hopes of the anti-speech community.
First, a quick labor law primer: Washington public sector unions (which are governed by state, not federal, labor law) may negotiate "agency-shop" agreements. These allow the union to charge non-members in the bargaining unit a "agency fee" equivalent to full member dues, and to have this fee collected through mandatory payroll deductions. The idea is that employees should not be able to refuse to join and pay member dues while reaping the benefits of the union’s representation in contract negotiations. This arrangement has been upheld as constitutional by the courts, but the Supreme Court, in a series of decisions over the years, has held that public-sector unions must refund to non-members, on request, any part of their agency fees that are spent on ideological and political activity not germane to the collective bargaining efforts of the union. However, the Supreme Court has not held that the Constitution mandates prior consent before spending non-member agency fees on political activity – only that their be some process by which non-members can obtain a refund of that portion of their mandatory fee. Over the years, there have been many complaints that the post-spending remedy has proven cumbersome and ineffectual for non-member employees – that the unions have made it extremely difficult and time consuming for non-members to even know of their rights, let alone to collect the amounts owed them. Whether for these reasons or others, few non-members bother to collect the fee refunds owed them.
In 1992, as part of a campaign finance "reform" package, Washington voters approved a provision prohibiting unions from spending these agency shop fees on any electoral activity without first gaining express approval from the individual non-member. In other words, under this law, non-members would not have to pay fees and then request a refund of that portion used for political activity. Instead, the unions could not spend any portion of non-member fees for political activity without first getting consent from the non-members. The lower court ruled that this was an unconstitutional infringement on the unions’ speech rights. In today’s unanimous decision, the Supreme Court overruled the lower court and upheld the state law.
Supporters of campaign finance regulation attempted to frame this as a campaign finance law. They argued that the state could place such restrictions on the union as part of a plan of campaign finance regulation. Today’s opinion, while upholding the law, rebuffs that line of reasoning. The Washington Education Association, for its own obvious reasons, argued that the statute was an unconstitutional infringement of their speech rights and cited campaign finance cases for that proposition.
The Supreme Court, however, while upholding the Washington statute, analyzed it entirely as a question of labor law and mandatory fees. It held that the law is valid not because it is a legitimate campaign finance regulation, as the anti-speech, campaign finance regulators argued in their amicus brief, but simply because it related to mandatory fees available to the union only through the coercive power of the state. The Court specifically rejected reliance on campaign finance cases: "our campaign-finance cases are not on point."*
Thus, Davenport draws an important distinction between involuntary fees being spent on campaigns and voluntary payments being spent on campaigns. This is a proper distinction. The anti-speech proponents of campaign finance reform had hoped to sucker the Court into a decision it could use as precedent for further restrictions on political speech. They failed.
For campaign finance enthusiasts, that is the importance of Davenport.**
*In a brief concurrence, Justice Breyer, joined by the Chief Justice and Justice Alito, noted that the campaign finance cases had not been argued in the court below, and would not have addressed the issue.
**Update: We note that Marty Lederman grinds his axe and gets it entirely wrong. Professor Lederman thinks the case is based on the idea that a union gets "state conferred privileges," a notion he has been trumpeting to justify broad restrictions on corporate political speech for some time, and argues that this spells doom for free-speech advocates awaiting the Court’s decision in Federal Election Commission v. Wisconsin Right to Life. Now, it is true that the Courts have relied on this reasoning to justify campaign finance restrictions on unions and corporations. But it doesn’t do so here. No where does it use any variation of the term "conferred" or "privileges," or "benefits" as into "state-conferred benefits." The opinion focuses on the mandatory nature of the agency fees payments, not on the fact that the union has state-conferred benefits. It is not that the state merely confers benefits on the Washington Education Association – it is that it gives the WEA power to take the money of non-members and spend it without consent. With this in mind, we note that the Court also refused to go beyond the case and consider whether the law would be upheld as against private-sector unions, noting that those fees are collected from private contractual bargaining, not by the state itself. In short, Lederman attempts to resucitate the "reformers" anti-speech reliance on campaign finance law, an approach the Court specifically rejects.
