Amicus Brief in Forthcoming Supreme Court First Amendment Case:

My Mayer Brown Rowe & Maw colleague Don Falk and I just filed an amicus brief on behalf of the American Legislative Exchange Council in Davenport v. Washington Education Association, which the Court will be hearing soon. The case is quite interesting, and while our brief is intentionally short and narrow, I hope it will be helpful.

Related Posts (on one page):

  1. Restriction on Union's Political Use of Coerced Fees from Non-Members:
  2. Amicus Brief in Forthcoming Supreme Court First Amendment Case:
John (mail):
A very successful appellate lawyer I met when I was a law student said, "don't ever write a brief that takes longer to read than the average judge spends sitting on the can."

Good job, EV!
11.16.2006 3:40pm
Hans Bader:
It's odd that the Washington State Supreme Court, in striking down the state's paycheck protection statute, treated the Supreme Court's First Amendment compelled-speech jurisprudence as imposing a ceiling, not just a floor, for the First Amendment rights of non-union employees in unionized government workplaces dominated by public employee unions.

The First Amendment is a floor, not a ceiling, on individual rights. And one of the freedoms guaranteed by the First Amendment is freedom from compelled speech.

As Thomas Jefferson once observed, it is sinful and tyrannical to force a man to pay for the the dissemination of ideas he disagrees with.

States have every right to broaden the free speech rights of their citizens beyond the minimum guaranteed by the First Amendment.

For example, Massachusetts law gives students broader free speech rights than they enjoy under the U.S. Supreme Court's interpretation of the First Amendment in Bethel School District v. Fraser. (See Pyle v. S. Hadley Sch. Comm. (Mass. 1996)).

And California law gives K-12 student journalists broader free speech rights than they enjoy under the U.S. Supreme Court's interpretation of the First Amendment in the Hazelwood case.

I see no reason why Washington State may not similarly give non-union employees expanded First Amendment rights against being coerced, under state regulations, into subsidizing the political activities of public employee unions.

The only reason the public employee unions in Washington State can even collect money from non-union employees is because the State of Washington has voluntarily chosen not to be a right-to-work state -- thus conferring privileges on public employee unions that they are not constitutionally entitled to to begin with -- and has further set up machinery to allow them to make deductions from paychecks of non-union employees in unionized public workplaces.

Surely, if Washington can avoid giving public employee unions a privileged status altogether, it can take the far more limited step of limiting the scope of the privileged status it confers on them, so as to accommodate non-union employees' freedom from compelled speech.
11.16.2006 5:08pm
Dave Hardy (mail) (www):
Nicely done.

Cf. the Supreme's cases on election financing. Part of the rationale for forbidding corporations to make expenditures is that shareholders may not necessarily agree with the corporation's political views (i.e., may just be investing for the economic return, as they probably are). I don't regard that as a weighty point, since the shareholders are free to move their money elsewhere, or to elect new corporate leadership if they object to their money being so used, but the Supremes regard it as sufficient.

In this case, the individuals face far more burden to change the use of their money for a political end -- they would, I assume, have to change professions or move out of state. And as nonmembers, they cannot elect new leadership.
11.16.2006 5:16pm
John Noble (mail):
The union of course remains free to spend without hindrance every penny of its members' dues, plus that portion of the agency shop fees not devoted to the excluded political activity.

Do non-consenting non-members get a pro rata refund, or can the union segregate their dues and spend them only on non-political activities, making a greater portion of the members' dues available for political activity.
11.16.2006 7:10pm
Interesting First Amendment cases nearly always divide the Supreme Court, at least to some extent. This is such an easy and straightforward case that I would expect a unanimous reversal. EV, can you even articulate in a plausible way the union's First Amendment argument?
11.16.2006 7:11pm
eric (mail):

That was part of the argument at trial, from what I understand. The SC has reject this approach in Abood v. Detriot Bd of Ed,

It is plainly not an adequate remedy to limit the use of the actual dollars collected from dissenting employees to collective-bargaining purposes: "[Such a limitation] is of bookkeeping significance only rather than a matter of real substance. It must be remembered that the service fee is admittedly the exact equal of membership initiation fees and monthly dues . . . and that . . . dues collected from members may be used for a `variety of purposes, in addition to meeting the union's costs of collective bargaining.' Unions `rather typically' use their membership dues `to do those things which the members authorize the union to do in their interest and on their behalf.' If the union's total budget is divided between collective bargaining and institutional expenses and if nonmember payments, equal to those of a member, go entirely for collective bargaining costs, the nonmember will pay more of these expenses than his pro rata share. The member will pay less and to that extent a portion of his fees and dues is available to pay institutional expenses. The union's budget is balanced. By paying a larger share of collective bargaining costs the nonmember subsidizes the union's institutional activities." Retail Clerks v. Schermerhorn, 373 U.S. 746, 753 -754.

Abood v. Detroit Bd. of Ed., 431 U.S. 209 fn 35 Sorry no pinpoint page.

11.16.2006 8:27pm
Eli Rabett (www):
Does this mean that I have the right as a stockholder to direct that the company not contribute to foundations or organizations such as ALEC (or CEI or ACLU or whatever) that I do not approve of? Or is this just union bashing?
11.18.2006 12:22pm
Eugene Volokh (www):
Mr. Rabett: As the brief makes clear, a union is free to use its members' dues for any purposes it likes —- just as a corporation should be free to use its stockholders' investments. The question is whether a union has a constitutional right to engage in electioneering using agency fees from nonmembers, who are paying the fees only because they are required to in order to stay employed, and who have not affirmatively permitted the use of their fees for this purpose.
11.18.2006 3:26pm