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Union loses "opt-in" agency fee case
June 14, 2007 by Ross Runkel at LawMemo
It does not violate the First Amendment for a State to require its public-sector unions to receive affirmative authorization from a nonmember before spending that nonmember’s agency fees for election-related purposes.
So says a unanimous US Supreme Court in Davenport v. Washington Education Association, decided June 14, 2007.
Washington State allows public-sector unions to charge nonmembers an agency fee equivalent to membership dues and to have the employer collect that fee through payroll deductions. An initiative approved by state voters (§760) requires a union to obtain the nonmembers’ affirmative authorization before using their fees for election-related purposes. The Washington Supreme Court thought this "opt in" requirement was an unconstitutional burden on the union's first amendment rights.
The US Supreme Court recognized that the state was creating a content-based speech regulation. However, the Court upheld §760 by applying precedents dealing with election campaign finance restrictions.
The basic reasoning:
- The union has this money only because the state granted to the union "the power to tax" members of the bargaining unit.
- "As applied to public-sector unions, §760 is not fairly described as a restriction on how the union can spend “its” money; it is a condition placed upon the union’s extraordinary state entitlement to acquire and spend other people’s money."
- The state placed a reasonable, viewpoint-neutral limitation on the use of these funds.
- The state did not impermissibly distort the marketplace of ideas.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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