Narrow Politics
by Mark Mix

Attorneys for 4,000 Washington teachers will argue before the U.S. Supreme Court on January 10 seeking a ruling that could give unionized employees nationwide new tools to reclaim their mandatory, imposed union dues. But the case did not start out with such high aspirations.

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 the “most prominent” of the cases the High Court agreed to hear this term, arose from a controversial Washington State Supreme Court ruling last March that somehow found a constitutional “right” for union bosses to spend nonunion employees’ forced dues on politics.

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

Paycheck protection regulations correctly diagnose one symptom of the forced unionism problem, but the record in Washington and several other states has made it clear that this government regulatory approach falls short of providing employees meaningful relief.

In her column titled “Piercing the Popular Myth of Paycheck Protection,” then Seattle Times columnist Michelle Malkin called the statute “workaroundable” and reported 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!

Other analysts at the Heritage Foundation, Public Service Research Council, Mackinac Center for Public Policy, and the Capital Research Center have made similar findings about the failings of this campaign finance regulatory approach to forced unionism.

Because the law’s definition of “politics” was so narrow, even the Olympia-based Evergreen Freedom Foundation – a long-time supporter of the so-called “paycheck protection” regulatory approach – recently pointed out in its third party Davenport brief that the funds covered by the statute were “miniscule...less than ¼ of 1% of the WEA’s total expenditures.”

So it should come as no surprise that WEA union officials were easily able to evade the law’s intent by slightly modifying accounting methods and the nature of their expenditures.

Concerns about the paycheck protection’s effectiveness aside, it is absolutely imperative that the U.S. Supreme Court overturn the State Supreme Court ruling which used the law as a springboard to create a much larger problem – a perversion of the long-standing interpretation of the First Amendment.

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

But fortunately, Davenport is more than just a defensive battle. National Right to Work Foundation attorneys have found a rare opportunity to challenge a wrongheaded doctrine that flowed from a Supreme Court ruling handed down 45 years ago in Machinists v. Street – a doctrine that union bosses ever since have turned into a tool to hamstring workers who do not want to pay for a union’s politics.

By misapplying the phrase “dissent is not to be presumed” from the Street ruling, union officials maintain burdensome procedures requiring employees who resign formal membership to take the additional affirmative step of objecting annually to stop union officials from seizing their forced union dues for union political activities.

If the High Court clarifies that employees register sufficient “dissent” through the act of becoming and remaining nonmembers, the roughly one million nonmembers forced to pay dues in America will be entitled to annual rebates of $200 or more, which covers unions’ non-bargaining expenses, including all costs attributable to politics, lobbying, and public relations.

Winning on this argument would be a major leap forward, and it could multiply the effectiveness of earlier Supreme Court rulings won by Foundation attorneys by a factor of ten.

Ultimately, six states, two federal agencies, and 27 public policy groups, legal foundations, and independent teacher organizations signed various briefs supporting the teachers and the State of Washington.

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 be a major breakthrough.

Let’s hope the High Court gives the Washington State Supreme Court a remedial lesson on the First Amendment and agrees that it’s ridiculous to presume that when an employee resigns from a union he somehow still supports its politics.

Mark Mix is president of the National Right to Work Foundation, a non-profit organization providing free legal aid to thousands of employees nationwide whose human and civil rights have been violated by compulsory unionism abuses.