Posted June 14, 2007 by Paul S. Ryan

Supreme Court Upholds Washington State Campaign Finance Law

The Supreme Court this morning issued its decision in Davenport v. WA Education Association reversing the state supreme court’s invalidation of a state law requiring labor unions to obtain affirmative authorization (“opt-in”) from non-members before using such non-members’ agency shop fees for political purposes.

The Campaign Legal Center filed amicus briefs in the case at the cert petition stage and on the merits encouraging review and supporting the constitutionality of the state law.  I’ve also blogged on the case here, here and here.

Our principal motive for involving ourselves in this case was our concern that the reasoning of the state supreme court, in striking down the state law, stood for the proposition that a union possesses a constitutional right to spend any and all funds in its possession for political purposes.  This rationale, by logical extension, undermines longstanding laws at the federal level and in at least fourteen states restricting the use of union and corporate treasury funds for political purposes.  Like the challenged Washington law imposing an “opt-in” requirement on unions, federal law and the laws of many states have long imposed an “opt-in” requirement on unions and corporations—i.e., unions and corporations can only spend funds to influence elections to the extent that members/employees “opt-in” to supporting such expenditures by making contributions to the union/corporate PAC.

The Court today soundly rejected the union’s argument that it has a constitutional right to use any funds in its possession to influence elections.  The Court recognized that the union had come into possession of non-member agency shop fees only with the assistance of the state, which by statute enables unions to collect such fees from non-members to cover the costs of collective bargaining.  The Court reasoned that Washington’s requirement that non-members “opt-in” to supporting a union’s political activities is a permissible check on the state law entitling unions to extract agency shop fees from non-members in the first place.  The opt-in requirement regarding union political spending, according to the Court, vindicates voters’ “concern with the integrity of the election process” and is “limited to the state-created harm that the voters sought to remedy.”

In this way, the Court in Davenport employs reasoning entirely consistent with (and, by implication, reaffirming) its long line of decisions upholding other state and federal law restrictions on corporate and union political fundraising and spending (e.g. Beaumont, McConnell, Austin)—namely, that government-conferred advantages that threaten the integrity of the election process can constitutionally be checked by campaign finance restrictions.

The Court will soon issue its decision in Wisconsin Right to Life, where the Court has been asked to depart from this now-longer line of precedent and rule that the government-conferred advantages enjoyed by the plaintiff corporation do not justify the application of BCRA’s corporate/union “opt-in” PAC requirement to the plaintiff corporation’s electioneering communication.  I know better than to predict the outcome in WRTL, but the Court’s decision today in Davenport certainly isn’t a bad sign.