It is said that every important political issue eventually ends up before the U.S. Supreme Court. So it is that this morning, the nation’s highest court will hear an hour of oral argument on two Washington state cases that could limit the power of the teachers’ union to use dues from nonmembers for strictly political purposes.
The issue is not a new one for Washington or for many other states, including Colorado.
The teachers’ union is a powerful political force largely because it has been able to harness the financial resources of its 2 million or so members and use some of those assets for political purposes, most often benefiting the Democrats.
In 1992, the voters of Washington passed a ballot measure that specifically prohibited any labor union from using dues paid by nonmembers under an “agency shop agreement” for political purposes without their expressed permission. An agency shop agreement allows groups like the teachers’ union to collect dues from nonmembers on the theory that the nonmembers benefit from the collective bargaining efforts of the union and therefore should share in the cost.
Voters in Washington, by a 73 to 27 margin, were persuaded that nonmembers of a union shouldn’t have to support the political activities of a union they were unwilling to join.
To put the matter gently, the teachers’ union in Washington decided not to abide by the new law and merely continued to give nonmembers an opportunity twice a year to opt out of the political dues deduction. Eventually this practice was challenged and the union won a Washington Supreme Court decision invalidating the ballot measure passed 14 years ago. The state’s highest court held that asking nonmembers for permission to spend dues on political matters was “too heavy an administrative burden” on the union.
A second case in which teachers actually attempted to recover misspent dues was dismissed. Both cases are now being reviewed by the U.S. Supreme Court.
There are understandably a lot of organizations interested in the outcome of these cases. One of them is the Mountain States Legal Foundation in Colorado, which has filed a friend of the court brief. That brief emphasizes that the U.S. Supreme Court’s earlier cases make it clear that at a minimum, unions must give nonmembers an opt-out option but anticipate that individual states might enact more schemes even more protective of the rights of nonmembers. The brief goes on to argue that the opt-in requirement in Washington is one of these constitutionally valid methods.
Mountain States’ attorneys also make a compelling argument that the Washington court was simply wrong in its conclusion that refunding money to nonmembers would be a burden the union couldn’t bear. The brief points out that only 5 percent of the teachers represented by the union are nonmembers. If the money to be spent on political purposes were simply refunded automatically, the union in Washington would be out only $200,000 out of $4 million.
This modest reduction in the political budget, Mountain States suggests, hardly constitutes a violation of the free speech rights of the union.
Three outcomes to the case seem possible:
The union will prevail and the Supreme Court will rule the opt-in requirement unconstitutional.
The court will uphold the requirement that dues from nonmembers cannot be used for political purposes without the affirmative permission of those members. Such a ruling might well encourage other states to follow Washington’s lead and enact additional protections for nonmembers.
Mountain States has asked the high court to explicitly overrule a prior decision and hold that all unions be barred from using dues for political purposes without the expressed permission of “supporting nonmembers.”
Were that to happen, every state and every union would be affected and the politics of unionism would be changed overnight.
Whatever the exact outcome, the court needs to find a way to firmly re-establish the principle obvious to almost everyone: It is wrong to compel someone to financially support programs and political activity which they find objectionable.
In this instance, the more sweeping the court’s decision, the better it will be.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff. His column appears on Wednesdays.
