Muzzling Unions

Dmitri Iglitzin
January 22, 2007

Dmitri Iglitzin is a labor law attorney in Seattle and a lecturer at the University of Washington School of Law.

Organized labor’s efforts to mobilize progressive voters played a critical role in last fall’s election. According to the AFL-CIO, in the final four days before the election alone, more than 187,000 union volunteers made 7.9 million phone calls, knocked on 3.5 million doors, and reached 2 million workers at the work site. The bottom line was an energized, mobilized and engaged union vote that made a difference in almost every close race in 2006. One in four voters nationwide was a union member, even though unions make up only 12 percent of the workforce, and three-quarters of them voted Democratic.

This effort is costly, though: the AFL-CIO and SEIU together spent about $100 million. While union members contribute mightily to various PACs, much of the operating money comes from union dues. A much smaller but significant amount, though, comes from so-called agency fees—deductions from non-member workers who pay for the financial and workplace advantages union contracts bring.

Which is why a dispute pending before the United States Supreme Court, involving the Washington Education Association and a 1992 Washington state campaign finance reform law, might matter so much.

The law itself results from the successful 1992 Washington state initiative, the “Fair Campaign Practices Act,” regulating political contributions and campaign expenditures. A progressive’s dream of a campaign reform law, it was designed to “ensure that individuals and interest groups have fair and equal opportunity to influence elective and governmental processes,” and to “reduce the influence of large organizational contributors.” Buried about halfway through the initiative, however, was a provision, Section 760, which precluded any labor organization from using the fees from non-members “to influence an election or to operate a political committee, unless affirmatively authorized by the individual.”

The Washington Education Association (WEA) challenged this rule in court, arguing that its First Amendment right to act on behalf of all of the employees it represents is interfered with if it has the heavy burden of obtaining “affirmative authorizations” from all of those employees before spending their money for political purposes. The WEA was successful in making this argument before the Washington State Supreme Court, which struck down Section 760 as unconstitutional.

The problem with this argument, which was not lost on the U.S. Supreme Court, is that the union has no underlying constitutional right to compel any employee to contribute any money to it. In fact, in many states, unions are statutorily forbidden to compel employees to pay dues of any sort—and it is clear that such prohibitions are constitutionally valid. Since Washington could lawfully forbid the WEA from involuntarily extracting any dues money at all from the workers it represents, why can’t the state take the lesser step of forbidding the WEA from extracting such money for certain purposes without “affirmative authorization” by the worker?

The danger is that the court may not only uphold the law, but also further limit the ability of labor unions to raise money for political activity. Some hint was given by Justice Scalia, early in the argument. The First Amendment, he opined, far from prohibiting a requirement that “affirmative authorization” be obtained from employees before unions may use their money for political purposes, in fact actually requires such an “opt in” scheme. “If this money is the non-union member’s money and an opt-in scheme is not much of a burden on the unions,” he asked, “why should the First Amendment permit anything other than an opt-in scheme?”

Were that to become the Supreme Court’s ruling, it would drastically alter the status quo, which currently requires unions only to give employees notice of their right to object to having their dues used for other than contract negotiation and administration. In the worst case, unions could be severely limited in their ability to raise money from non-members for any purposes at all beyond the so-called "core" union tasks of negotiating and administering collective bargaining agreements.

But there is no such clear line. Legislators make the laws that govern what a union can and can’t do, so that electing people sympathetic to unions is essential to their existence—as much as are negotiating and enforcing contracts. Without a progressive vision, unions are at risk, and vice-versa. That’s why the right works so hard to limit union activity.

An unfavorable ruling would not end labor’s political action. They could still raise and spend the money they received from members, as voluntary contributions, and from individuals who authorized such expenditures. That ruling would be a significant boost, however, to the efforts by the National Right to Work Legal Defense Foundation and other anti-union organizations to strip unions of their funding sources and thereby neuter them politically.

Ironic as it may seem, the ultimate outcome of Washington state voters’ effort to improve that state’s “elective and governmental processes” through campaign finance reform may be nothing of the sort. Should the Supreme Court rule as many fear, the result will instead be the further tilting of the balance of economic and political power towards corporations and special interests, and away from entities such as labor organizations which advocate on behalf of the working men and women of this country.