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Stakes High in Fight Over Union Dues

Supreme Court case could set new ground rules

Attorneys for 4,000 Washington teachers filed their opening brief at the U.S. Supreme Court last week seeking a sweeping ruling that could give unionized employees new tools to reclaim their mandatory union dues. But the case didn’t start out with such high aspirations.

An effort to enforce a provision of state campaign finance law has ballooned into a critical legal battle that could set new ground rules for how union officials collect and spend compulsory union dues for politics across America. Now the stakes couldn’t be higher.

At the outset, the Davenport v. Washington Education Association (WEA) appeal was a legal rescue mission that should never have been necessary. Davenport, which the New York Times called among the “most prominent” of the cases the U.S. Supreme Court agreed to hear this term, arose from an outrageous Washington State Supreme Court ruling last March that somehow found a constitutional “right” for union bosses to spend nonunion members’ forced union dues on politics.

Yes, you read that right: It found a constitutional right to spend nonunion members’ forced dues on politics!

The decision came in a case National Right to Work Foundation staff attorneys brought to help teachers assert their rights under the remaining operative provision of a state campaign finance law—often called “paycheck protection.” The well-intentioned law required union officials to gain consent from nonunion public employees before spending their dues on certain, narrowly defined, state and local electioneering activities.

WEA teacher union officials easily evaded the law’s intent by simply shifting their accounting methods and slightly modifying the nature of their political expenditures. Moreover, because union officials in Washington enjoy the government-granted privilege to collect forced union dues in the first place, the WEA union hierarchy had no difficulty in raising even more funds for political and ideological activity than before the state passed its campaign finance law in 1992!

At the time, Seattle Times columnist Michelle Malkin called the law “workaroundable” and found that, in the first year after Washington’s “paycheck protection” law took effect, the WEA union actually increased the amount it spent to influence politics by 60 percent.

And because the definition of politics under the law was so narrow, even the Washington-based Evergreen Freedom Foundation policy group pointed out in its amicus brief filed last week that the funds covered by the statute were “miniscule … less than ¼ of 1% of the WEA’s total expenditures.”

Ten years of experience attempting to regulate union officials’ coercive powers in Washington and other states reminds us that adding additional layers of government regulation cannot succeed in providing real relief to employees. The solution is to end forced unionism altogether.

In the meantime, however, it is absolutely imperative that the U.S. Supreme Court overturn the Washington State Supreme Court ruling which used the “paycheck protection” law as a springboard to create an even larger problem—a perversion of the long-standing interpretation of the 1st Amendment as applied in the context of forced unionism.

Using the Washington court’s twisted logic, union lawyers may even argue that America’s 22 state Right to Work laws, which ban forced union dues, are also unconstitutional.

But fortunately, Davenport is more than just a defensive battle. National Right to Work Foundation attorneys have found an opening to go on the offensive by asking the High Court to clarify a statement that has plagued union-abused workers for 45 years.

Exploiting the phrase “dissent is not to be presumed” from a 1961 U.S. Supreme Court ruling involving different circumstances, union officials have established burdensome procedures requiring employees who resign formal union membership to take the additional affirmative step of objecting annually to stop union officials from seizing their forced union dues for politics and other non-collective bargaining activities.

As if the act of resigning from a union does not suggest an employee’s dissent!

If the Supreme Court revisits this 1961 ruling and clarifies that an employee registers sufficient “dissent” through the act of becoming and remaining a nonmember, every nonmember forced to pay dues in America will automatically be entitled to a rebate of all non-bargaining expenses, including all costs attributable to politics, lobbying, and ideological causes. Approximately one million nonunion employees would get back $200 or more of their forced union dues every year.

Failing to overturn the Washington State Supreme Court would be a travesty. But a ruling that dissent can and should be presumed when it comes to nonunion members would advance the battle by a quantum leap. The aggregate rebates of forced union dues received by employees across America would increase by a factor of ten.

Let’s hope the U.S. Supreme Court gives the Washington State Supreme Court a remedial lesson on the 1st Amendment, and agrees that it’s ridiculous to assume when an employee resigns from a union he still somehow supports its politics.

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Written By

Mr. Mix is president of the National Right to Work Legal Defense Foundation, which litigates on behalf of employees whose rights have been violated by compulsory unionism. The foundation is representing more than 150,000 workers in nearly 300 cases nationwide.

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