Last week, the United States Supreme Court unanimously upheld Washington’s “paycheck protection” law against a constitutional attack by the Washington Education Association (WEA). The law was passed in the hope of protecting workers who refuse to join a union, but are required by law to pay it a so-called “agency fee” for collective bargaining, from having these fees used for political purposes without the worker’s consent.
While the Court’s decision in Davenport v. WEA is welcome, other states should not rush to enact similar laws. They should instead address the underlying problem of state compulsion, namely, requiring employees to pay fees to unions that they refuse to join.
More than 25 states compel workers at unionized workplaces to join the union or at least pay an agency fee. This is fundamentally wrong. Workers should not be forced to accept, and pay for, monopoly representation by a union that they do not want (and may believe is detrimental). A paycheck-protection act (PPA) actually endorses and supports this underlying compulsion and merely attempts to remove some of the objectionable effects of such compulsory arrangements.
In prior cases, which the Supreme Court reaffirmed in Davenport, the Court established that a worker who is not a union member can be compelled to pay for proven collective-bargaining expenses of the union. These earlier rulings also establish that a worker’s First Amendment rights are violated if his compulsory fees are used by the union for ideological causes with which the worker disagrees. Unions tend to make this forced agency-fee amount as large as possible, and a worker can only challenge the union’s annual-fee calculation with great difficulty.
A PPA does not address this problem of compulsion. Instead it seeks to remove the burden of objecting to “political” expenditures by the union. But unions attempt to characterize as little as possible of their activities as “political,” and state PPAs can only constitutionally focus on a narrow scope of union activities in state and local elections, such as direct cash contributions and the most pointed partisan communications. But, of course, a lot of other union activity (the vast majority of it), such as express-advocacy communications to union members, nonpartisan voter-registration and get-out-the-vote drives, and advocacy of issues, can have some effect on elections. While workers may well object to the use of their fees for these activities, PPAs don’t cover this type of activity. So there is a gap. PPAs can only affect the most direct political expenditures on state and local (not federal) campaigns, while most union activities remain unaffected.
For the direct political activity actually covered by PPAs, it is certainly preferable that prior consent be required, as PPAs do. Unions want nonmembers to have to affirmatively “opt-out” by standing up before their employer, coworkers, and union officials every year and contest the use of their money for union political activity in order to stop their fees from being used for this purpose. On its face, Washington’s advance consent, “opt-in,” requirement appears to be a better, and easily met, approach. But this offers false hope because the reach of PPAs is so limited. Why not just broaden the definition of “political activity” to encompass all union ideological activity? There you encounter serious constitutional questions.
Unions are protected by First Amendment rights to free association and speech. Voluntary associations have a right to communicate with their members, even if the communication expressly advocates for or against a candidate, and they have a right to engage in non-partisan voter registration and get-out-the-vote drives and to advocate for issues in communications to the general public. In a line of cases from Buckley v. Valeo to the present, the Supreme Court has confined government regulation of free speech and association to that which is, in Buckley’s words, “unambiguously related to the election of a particular candidate.” And once a restriction has cleared this hurdle, it must be narrowly tailored to a compelling governmental interest (such as preventing quid pro quo corruption). So attempting to fix the severe shortcomings of PPAs by expanding the definition of “political activity” raises insurmountable constitutional problems.
But, of course, workers have First Amendment rights, too, and government should not be compelling them to associate with a union or pay for the union’s political speech. So the key here is voluntariness. It is the only way to resolve the tension between the First Amendment rights of both workers and unions. Workers should not be compelled to associate with or fund a union, unless they voluntarily choose to do so. And unions should remain free to spend voluntary contributions for anything protected by the Constitution.
The Court in Davenport recognized this problem of coercion in upholding Washington’s PPA. But PPAs are an inadequate solution to this real problem. States should, therefore, focus on assuring voluntarism.
— James Bopp Jr. is a campaign-finance litigator with the law firm of Bopp, Coleson & Bostrom. He also serves as general counsel to the James Madison Center for Free Speech.