Davenport v. Washington Education Association, decided on June 14, is another case that the Supreme Court seems to have seen as easy work. In Washington, public sector unions represent not only members but other employees included within a pertinent bargaining unit. Only members pay dues, but as a matter of law unions are authorized to charge nonmembers “agency fees” equivalent to dues to cover expenses incurred in representation. Unions often use funds — generated by both dues and fees — to support candidates for public office who union officials think will act in ways furthering the interests of the individuals that the unions represent (both members and nonmembers). Some individuals who are represented — maybe especially those who are not union members — may disagree with union political judgments. The Supreme Court has held that state laws that authorize unions to collect agency fees operate unconstitutionally if they do not recognize the right of objecting individuals to withhold the fraction of their agency fees used for political action with which they disagree.
Voters in the State of Washington went one step further a few years ago: They approved an initiative measure requiring public sector unions to require affirmative agreement by nonmembers to use of their fees for purposes of political action. (The ordinary practice — usually thought to be constitutionally sufficient — involves unions sending notice to fee-payers of their right to object and the duty of the unions, once objection is made, to then adjust fees accordingly.) The effect of the initiative may well have been substantial: Even if only a few nonmembers had strong views about union political agendas, more might be indifferent, happy to save some money on agency fees, and in any event not prepared to go to the trouble of supplying affirmative authorization. Some individuals might even give up union membership in order to get the benefit of lower cost fees.
So the WEA (the politically powerful teachers union — maybe even the principal target of the initiative in the first place) challenged the constitutionality of the initiative, claiming that it violated the free speech rights of the union itself. The Supreme Court was not persuaded — Justice Scalia writing for the majority (with Justice Breyer — joined by Chief Justice Roberts and Justice Alito concurring, but noting their view that Scalia didn't really need to write so much.)
Justice Scalia takes free speech quite seriously — as he understands it — and so his opinion warrants careful reading. He argued that “unions have no constitutional entitlement to the fees of nonmember-employees.” The fees were not union property (even if in union possession), but rather funds in union possession because of an “extraordinary state entitlement to acquire and spend other people's money.” Why shouldn't the state be free to set conditions on this “extraordinary” authorization? Scalia recognized that even in the absence of some constitutional property right, the union could object to conditions that violated free speech principles. And he acknowledged that the condition at issue split off political action expenditures from other representational expenditures in terms that necessarily turned on the content of the ideas the union was pushing (vote for x vs. pay workers y, for example). But government regulation triggered by communicative content, Scalia thought, was not especially troubling if it was not tied to viewpoint (don't spend money to support Republicans, for example), and was otherwise an apparently reasonable response to an apparently real worry (election integrity in this instance).
Is any of this interesting?
Everything Justice Scalia writes is right within limits: It's hard to describe the fees that the union receives as “its” property — the union holds the money in trust, we might say: owes a duty to those who pay the fees to use the money for proper purposes. Spending money to support candidates is not an improper purpose (Scalia does not suggest that it is): It's one way to advance employee interests, sometimes anyway. Of course, objecting individuals have free speech rights not to have their money spent in ways contrary to their own views. But the union, as an association of individuals, has a free speech right to press its own views. Justice Scalia doesn't really disagree with that either. He just thinks, in this opinion anyway, that free speech rights begin and end with protection against viewpoint discrimination. The Washington rule provides individual fee payers with plenty of protection against forced support of viewpoints they resist in fact, but puts no limit as such on whatever viewpoints unions want to assert (so long as they sign up fee payers in advance). No problem — if viewpoint regulation is all free speech law should worry about.
But notice what's missing: The free speech interest of fee payers who object to union viewpoints is already plainly protected by the usual rule — the rule that Washington voters replaced — that requires unions to adjust fees of nonmembers who notify unions of their objections. There is no added free speech protection, we may think, owing to the Washington “advance approval” requirement. But the Washington approach plainly runs the risk of reducing resources for union speech over and above the constitutionally necessary limit set by the need to acknowledge dissenters. So there is likely a real free speech cost. Shouldn't we try to think about “election integrity” or whatever other reason Washington has — think about how plausible it is, at least on the off chance that the point of the measure might have been precisely to reduce WEA clout vis a vis other interest groups?
In ancient times — in the bad old days of the Warren Court — Supreme Court justices often thought that these latter questions needed to be taken seriously too. What should we make of the fact that not one of “our nine now” thought that this case was in any way hard?