You wanted (1) a summary of Davenport et al. , v. Washington Education Association, 551 U. S. ____ (2007), and (2) to know whether the decision would impact Connecticut law.

SUMMARY

In this case, the U. S. Supreme Court unanimously held that it does not violate the First Amendment for states to require public-sector unions to obtain affirmative consent from nonmembers before spending their agency fees for election-related purposes. At issue was whether the State of Washington could compel its major teachers union to follow state law by obtaining upfront, written approval from its nonmembers before spending their agency fees on political or other non-workplace-related activities.

Justice Scalia delivered the opinion of the Court, vacating the judgment of the Supreme Court of Washington.

Like Washington, Connecticut law requires nonmember employees to pay agency fees to public sector unions representing them for collective bargaining purposes (CGS § 5-280). The fees are equivalent to full membership dues and collected through payroll deductions. While the U. S. Supreme Court decision in Davenport does not change state law, it makes it clear that Connecticut could enact so-called “paycheck protection” legislation by requiring public-sector unions to get nonmembers' affirmative consent before spending their fees on political activities.

DAVENPORT ET AL. V. WASHINGTON EDUCATION ASSOCIATION

Facts and Lower Court Proceedings

The National Labor Relations Act authorizes states to regulate their relationships with their employees (USC 29 § 152 (2)). Like several other states, Washington permits public-sector labor unions to negotiate “agency-shop” agreements. These agreements allow unions to levy agency fees on employees who are not members but whom the union represents in collective bargaining. Under Washington law, the fees are equivalent to full membership dues and collected by employers through payroll deductions.

When the lawsuits in this case were filed, § 42. 17. 760 of the Washington Revised Code (“§ 760”) required unions to obtain nonmembers' affirmative consent before using their fees for political purposes. (More typically, unions may spend these fees unless a nonmember objects through an opt-out procedure. ) Voters approved the law in a 1992 ballot initiative.

The respondent in this case, the Washington Employment Association (WEA), was the exclusive bargaining agent for 70,000 Washington state educational employees. Like other unions, the WEA spent a portion of the money it collected in agency fees and membership dues for collective bargaining activities and a portion to support its political agenda.

The WEA provided nonmembers who did not want to support its political activities an opportunity to opt-out by responding to a “Hudson packet. ” Under this process, which was established by Chicago Teachers Union v. Hudson, 475 U. S. 292 (1986), the union sent a bi-annual letter to members notifying them of their right to (1) pay full agency fees by not objecting within 30 days or (2) object to paying for non-workplace-related activities, including those that were political, and receive a rebate.

In 2001, the WEA faced two separate lawsuits, each claiming the union had violated § 760 by failing to obtain affirmative consent before using agency fees for election-related purposes. The State of Washington brought the first lawsuit; several nonmembers of the union brought the second as a class action. In the first lawsuit, a trial court found that the respondent had violated § 760 and awarded the state monetary and injunctive relief. In the second, a different trial court held that § 760 provided a private right of action, certified the class, and stayed further proceedings pending appeal. Both cases were appealed.

After consolidating the appeals, the Washington Supreme Court held that, although a nonmember's failure to object after receiving the Hudson packet did not satisfy the affirmative consent requirement, the law's imposition of the requirement violated unions' First Amendment rights. It reasoned that the burden is on objecting employees to make their objection known when the union uses agency fees for political activities and that employees who have a convenient method for registering dissent are not compelled to support a political cause and have not, themselves, suffered a First Amendment rights violation. The Court further reasoned that § 760 shifts to the union the burden of protecting nonmembers' rights at significant expense, negatively impacting a union's ability to assert its collective political voice. Finally, it held that the “opt-in” requirement unconstitutionally presumes the dissent of nonmembers. Davenport and Washington appealed this decision to the U. S. Supreme Court, which granted certiorari.

Issue on Appeal

The issue on appeal was whether a requirement for public-sector unions to receive affirmative consent from nonmembers before spending their agency fees for election-related purposes violates the First Amendment.

Holding

In analyzing the facts of the case, the Court found that the opt-in requirement is a “modest limitation upon an extraordinary benefit” through which the state essentially allows unions to tax government employees. Thus, the notion that it violates the First Amendment is counterintuitive since a state could go further by prohibiting public-sector agency fees or restricting them to the portion of union dues devoted to collective bargaining. “Indeed, it is uncontested that it would be constitutional for Washington to eliminate agency fees entirely. ” The Court concluded that the “far less restrictive limitation the voters of Washington placed on respondent's authorization to exact money from government employees is of no greater constitutional concern. ”

The Court rejected the reasoning of the Washington Supreme Court with respect to agency-fee cases. According to the U. S. Supreme Court, the state court extended Abood v. Detroit Bd. of Ed. , 431, U. S. 209 (1977) and Hudson too far by concluding that they required a nonmember to shoulder the burden of objecting before a union could be barred from spending his or her fees for political purposes. The Court emphasized

that these cases did not balance the constitutional rights of unions and nonmembers in this regard since unions do not have a constitutional entitlement to nonmember-employees' fees.

Next, the Court reviewed the WEA's argument that § 760 places a limitation on how the union spends its money. Relying on this premise, the respondent invoked certain campaign finance cases including First Nat. Bank of Boston v. Bellotti, 435 U. A. 765 (1978) and Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990). It argued that § 760 is unconstitutional under the rigorous First Amendment scrutiny required by these cases because it applies to ballot propositions only and does not limit equivalent election-related expenditures by corporations.

Contrary to the WEA's argument, the Court found that the opt-in requirement is not unconstitutional under the campaign finance cases since the fees are in the union's possession only because Washington and its union-contracting government agencies have compelled their employees to pay those fees. It noted that the cited cases deal with governmental restrictions on how a regulated entity may spend money that has come into its possession without the assistance of governmental coercion of its employees.

Finally, the Court considered whether § 760 constitutes unconstitutional content-based discrimination by requiring affirmative consent only for election-related expenditures while permitting others. In considering the facts, it found that the voters of Washington did not “distort the marketplace of ideas when they placed a reasonable, viewpoint-neutral limitation on the State's general authorization allowing public-sector unions to acquire and spend the money of government employees. ” The Court referenced R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992) in which it held that content-based regulation is permissible as long as there is no possibility that ideas are being suppressed. It applied the reasoning in R. A. V. to this case and held that, because the union remains as free as an other entity to participate in the electoral process with all available funds other than agency fees lacking affirmative consent, § 760 does not violate the First Amendment.

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