Institute for Justice Urges U.S. Supreme Court To Protect First Amendment Rights & Uphold Paycheck Protections

J. Justin Wilson
J. Justin Wilson · November 8, 2006

Seattle – Is it unconstitutional to require a union to first ask permission before it uses someone else’s money to further its own political causes?

If you are a lawyer, an accountant, or a stockbroker and you use someone else’s money for your own purposes without obtaining their affirmative authorization, you can look forward to criminal prosecution and losing your license. But, according to the Washington Supreme Court, it violates a union’s First Amendment rights to require them to ask such permission, thus giving unions special rights beyond those possessed by other Americans. This conclusion is now before the U.S. Supreme Court, where the Institute for Justice filed a friend-of-the-court brief today in the cases Washington v. Washington Education Association and Davenport v. Washington Education Association urging the Court to reverse the decision of the Washington court.

“The First Amendment doesn’t permit unions to confiscate other people’s money for their own political causes,” said William Maurer, Institute for Justice Washington Chapter executive director. “Teachers and other workers should not be forced to fund political activities with which they disagree.”

The two cases arise from Washington state, where voters in 1992 approved a “paycheck protection” law by citizen initiative. Under that law, unions must get “affirmative authorization” from nonmembers before using their “agency shop fees” to fund political causes and candidates. By law, nonmembers must pay agency shop fees to support a union’s collective bargaining services if they work in an “agency shop,” including public schools.

Washington’s law lets workers choose whether to support union political causes by either joining the union or agreeing to allow a union to use their agency shop fees for politics. But for years, the Washington Education Association, the state’s largest teachers’ union, has done just the opposite, deciding for itself to use nonmembers’ agency shop fees for political causes and candidates unless and until a nonmember later objects.

The Washington Attorney General’s office, under the leadership of both a Democratic and Republican A.G., prosecuted the WEA for violating the paycheck protection law, but the union countered that the law burdens its First Amendment rights by making it harder to raise money for politics. Contradicting years of U.S. Supreme Court precedent, the Washington Supreme Court agreed.

But, as IJ demonstrates in its brief, the union is free to speak out about political causes in the same way every other advocacy group—from the Sierra Club to the National Rifle Association—does: by identifying and contacting like-minded individuals and persuading them to offer financial support for their work.

Maurer explained, “It may be easier for unions to compel funds from nonmembers, but Washington law gives those nonmembers a real choice. The U.S. Supreme Court has been clear that workers cannot be forced to support political activism with which they disagree as a condition of their employment. There’s nothing unconstitutional about letting workers decide for themselves whether to fund union political activity.”

Moreover, the Washington Supreme Court’s decision further burdens workers’ First Amendment rights by stripping them of the right to keep their views private, which the U.S. Supreme Court has long recognized as essential to the freedom of association. Requiring nonmembers to come forward, declare their opposition to the union’s political agenda, and navigate the administrative process to prevent their money from funding that agenda means they must announce to co-workers, bosses, the union and others that they do not agree with the union’s views. This would expose dissenters to coercion, threats and other pressure to support the union’s objectives. By requiring a union to ask, rather than the worker to object, Washington’s laws allows the nonmember to retain some ability to keep their political viewpoints private.

IJ’s brief is available here. The Supreme Court will hear oral arguments in the cases on January 10, 2007.