Update: Union Dues Case About 'Protecting Elections,' Lawyer Says

By Nathan Burchfiel | July 7, 2008 | 8:32pm EDT

(CNSNews.com) - The Supreme Court on Wednesday heard oral arguments in a case examining the way labor unions use non-members' dues, prompting one of the lawyers arguing the case to urge the justices to "protect the integrity of our election system."

Washington State Attorney General Rob McKenna said that allowing the union to use non-members' money for political purposes without affirmative consent tarnishes the election system, because it funnels money to a campaign that the dues-payer may not support.

Under the current system in Washington, teachers who are not members of the Washington Education Association are still required to pay dues to the union to help pay for the union's activities that benefit non-members, such as collective bargaining.

Non-members may petition the union for a refund of the amount of their dues that are spent on political activity. The statute under review would reverse the current system and require the union automatically to refund that amount unless the non-member approves its use for political advocacy.

Supporters of the union argue that it should be allowed to use the dues money however it sees fit and that the new statute puts an undue burden on the union to obtain affirmative consent from non-members. They say non-members have an adequate opportunity to get a refund if they object to the money being used for politics.

Frederic Freilicher, a law professor at George Washington University Law School, said the statute "burdens their (the union's) right of political speech" and should be subject to the court's strict scrutiny.

"The protection ... of the free speech rights of the non-union members who are paying dues, that protection is adequately presented by their right under the Supreme Court decision to opt-out," Freilicher said.

Freilicher was presenting the WEA's arguments during the discussion, because invited union representatives could not be present, according to organizers from the libertarian Federalist Society of lawyers.

But proponents of the new statute argue that non-members already "opted out" of the union's political activity by deciding not to become a member of the union, and should not have to opt-out again by requesting their money back.

"Individuals who have chosen not to become members of the union should not have to say, 'No,' twice. They've chosen not to join," McKenna told a panel discussion after the court argument.

Freilicher argued during the same discussion that some non-members may support the political activity of the union but not join for reasons other than politics, such as not wanting to be punished under union authority for crossing a picket line.

WEA President Charles Hasse calls groups supporting the statute - the Federalist Society, the National Right to Work Legal Defense Foundation and the Evergreen Freedom Foundation - "radical-right special interests ... that have opposed labor and worked against public school."

In a statement on the group's website, Hasse said he expects the Supreme Court to uphold lower court rulings in favor of WEA. A final decision is not expected until the summer.

He reiterated that non-members "are notified at least once a year that they can opt out of paying for WEA's political efforts to improve public education" and that "imposing additional restrictions on the association hampered the association's political advocacy and violated the First Amendment free speech rights of WEA members."

Hasse had previously maintained that it "does not spend non-members' fees on political purposes."

See Earlier Story:
Supreme Court to Hear Union Dues Case (Jan. 3, 2007)

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