The Supreme Court has just made this term’s biggest union decision. Unfortunately, though characterized as a setback for unions, it did little for those coerced by them. It did reveal, however, how limited is government protection for non-union members’ rights.
At issue was a state initiative preventing the Washington Education Association from using non-members’ funds for political purposes without their affirmative authorization (“opt-in”). The Washington Supreme Court held that the restriction unconstitutionally violated union rights. The U.S. Supreme Court decision, by Justice Antonin Scalia, recognized that ruling’s faulty reasoning and unanimously overturned it. But it reaffirmed the Supreme Court’s acceptance of states’ power to abuse their citizens on behalf of unions and limited the decision’s reach, protecting as few as possible. In addition, Washington has already passed new legislation making the ruling moot.
Washington requires non-union teachers to pay union agency fees for employment-related expenses. But long-standing precedent mandates that when government requires non-union members to pay agency fees as a condition of employment, non-members’ rights require, at a minimum, a reasonable means of opting out of supporting union politics. The WEA twisted this into the claim that the minimum requirement of an opt-out mechanism fully protects non-members’ rights, so that anything imposing a greater burden on unions, such as opt-in, violates unions’ First Amendment rights. That is, the minimum allowable protection for non-members is to be turned into the maximum protection of their rights, with unions capturing the difference. The Washington Supreme Court accepted this preposterous interpretation, analogous to ruling that a minimum wage law was actually a maximum wage law.
Justice Scalia’s opinion rejected that interpretation, stating that “Unions have no constitutional entitlement to the fees of non member employees.” It recognized that mandatory public union dues “give a private entity the power, in essence, to tax government employees” in the 28 states that permit such arrangements, so that an opt-in requirement is not an unconstitutional violation of union rights, but only a “modest limitation on the union’s exercise of this extraordinary power.”
Unfortunately, Scalia’s recognition that all mandatory dues are an effective delegation of government taxing power to unions, a unique delegation without basis in the Constitution, was not used to overturn the misguided precedent giving unions that power.
Even though the Washington law applied to all unions, the Supreme Court only ruled on public sector unions, leaving private sector unions’ coercive power untouched. Further, it did not find requiring public employees to pay union dues unconstitutional. It held only that states doing so must also protect dissidents’ rights. If such a state uses an opt-in requirement, it does not violate the Constitution. But an opt-out requirement would be sufficient and the extent of non-members’ protection is left to states.
Leaving non-members’ protection to the states, in turn, shows just how little protection the Supreme Court ruling offers in states whose governments do not want non-members’ rights protected.
On May 10, Washington passed a new WEA-backed law stipulating that it will not consider union political spending as coming from agency fees. That is, it will simply define agency fees as not used for union political purposes, despite mountains of contrary evidence. Non-members’ “protections,” whether opt-in or opt-out, become worthless, since they can no longer get any agency fees refunded in any event.
The Supreme Court’s “victory” for non-members of public sector unions did prevent yet another extension of union rights against them by overturning a ban on opt-in requirements. But it left unions’ constitutionally indefensible power over non-members intact and left their “protection” to the states. And Washington has demonstrated how such protection can easily be rendered worthless. As a result, unions’ government-delegated power to abuse others has changed little. Instead, the greatest effect has been to remind us just how far we have abandoned the core American belief that, in Thomas Jefferson’s words, “To compel a man to furnish funds for the propagation of ideas he disbelieves…[is] tyrannical.”