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The Supreme Court struck a new anti-union note Wednesday during oral arguments that pointed toward a ruling against the Washington state teachers union in a First Amendment dispute over how it should collect fees from nonmembers. At issue in Davenport v. Washington Education Association and Washington v. Washington Education Association is a 1992 state ballot initiative that requires unions to ask nonmembers to affirmatively “opt in” to pay the portion of agency fees that go toward the union’s political activities. A long line of Supreme Court cases currently allows unions to collect agency fees, equivalent to union dues, from nonmembers, on the theory that collective bargaining and other union activities benefit nonmembers as well as members. In a 1986 ruling, the Court indicated that unions must provide a fair way for nonmembers who pay the fee to “opt out” of paying the portion of the fee that goes toward political activities. Unions are fighting the “opt-in” alternative, which they fear will result in far fewer teachers giving support to unions’ First Amendment activities. The tenor of the argument Wednesday appeared to be so strongly anti-union — Justice Stephen Breyer was the only justice who voiced sympathy for the union — that so-called right-to-work advocates say it may mark a major turning point in the Supreme Court’s labor doctrine. “I have been attending arguments on these issues for 25 years, and in all of them, so many justices were not very sympathetic toward nonmembers,” says Glenn Taubman, a senior attorney with the National Right to Work Legal Defense Foundation. “Today it was completely the opposite.” In contrast to the 70,000 members of the Washington Education Association, there are only about 4,000 nonmembers who pay agency fees, and just a small portion of the dues go toward political activities. In spite of the seemingly low stakes, the case has taken on strong symbolic significance as a test of the Roberts Court’s treatment of the highly contentious labor-union issue. The Court’s newest justice, Samuel Alito Jr., seemed especially unsympathetic toward the union, which claims that the opt-in system will restrict its freedom of speech by limiting its ability to participate in politics. “Why should the First Amendment require anything other than an opt-in scheme?” Alito asked. Alito also repeatedly suggested that he could not fathom why a nonmember would ever want to pay the portion of dues that goes toward political activities. “What would be the thinking of such a person?” said Alito, whose wife has been a public-school employee in New Jersey. “Why would I choose to give up the benefits of union membership and yet want to allow the union to spend my money for its political purposes?” John West of D.C.’s Bredhoff & Kaiser, arguing for the union, replied that it was very possible that a nonmember would still want to support the union’s lobbying for cost-of-living adjustments for teachers or to reduce class size. Justice Anthony Kennedy also appeared critical of the union stance, telling West, “You proceed as if there are no First Amendment rights of [nonmember] workers.” West answered that nonmembers do have rights that are “fully protected” by the old opt-out process. But then Justice David Souter asked, “Why can’t the state protect it more?” referring to the First Amendment interests of nonmembers. At one point, Justice John Paul Stevens also seemed incredulous that a nonmember’s failure to opt out of the dues payment in a timely fashion could be read as a surrender of his First Amendment right not to participate in the union’s political activities. Washington Attorney General Robert McKenna defended the “opt-in” provision as a way of protecting the integrity of elections by ensuring that only those who choose to pay for union political activities do so. Solicitor General Paul Clement, supporting the state of Washington, asserted that the “opt-in” statute “does not limit the union’s ability to spend its own money on political causes,” so it does not infringe on the union’s free-speech rights.
Tony Mauro can be contacted at [email protected].

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