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Restrictive Ruling on Agency Fees
By Rachel B. Levinson
In June, the U.S. Supreme Court decided a case that could have implications for all unions that collect agency fees from nonmembers. In Davenport v. Washington Education Association, the Supreme Court upheld a 1992 Washington State statute prohibiting unions from using nonmembers’ agency fees to “make contributions or expenditures to influence an election or to operate a political committee, unless affirmatively authorized by the individual.”
In 2001, the state of Washington and several nonmembers of the Washington Education Association (WEA) had sued the WEA, an 80,000-person union with about 1,200 members in higher education and approximately 4,000 nonmembers who paid mandatory agency fees. Twice a year, the WEA sent to each nonmember materials explaining the right not to pay for political expenditures that were unrelated to the union’s collective bargaining services. The fees of objecting nonmembers were set aside and not used for political purposes. The lawsuits challenged this system, claiming that the WEA’s procedure failed to obtain the required “affirmative authorization” from nonmembers who did not explicitly object to the political use of their agency fees. The WEA argued in response that the statute made it difficult for the union to exercise its own rights of political expression and for that reason violated the First Amendment to the U.S. Constitution.
The Supreme Court ruled against the WEA, describing the statute as a “modest limitation” on “the union’s extraordinary state entitlement to acquire and spend other people’s money.” The Supreme Court reasoned that to the extent the WEA had a right to collect nonmembers’ fees, that right came from state law and not the federal constitution, and it was therefore constitutionally permissible to impose restrictions on how those fees could be spent. The Court added that because of “current technology,” it would not be difficult for a nonmember to affirmatively authorize the political use of his or her agency fees. The Supreme Court concluded that the statute did not stifle the union’s expression because the union could use the rest of its funds to participate in elections. While the Court limited its decision to public-sector unions, it noted that the same reasoning could apply in the private-sector context.
There is an interesting coda. While the U.S. Supreme Court was considering the case, the Washington legislature revised the statute. Today, Washington unions are permitted to use agency fees for political expenditures so long as they have enough revenue from other, non-agency fee sources to fund the expenditures. Nevertheless, because the Supreme Court concluded that states may impose stringent requirements upon unions’ use of nonmember agency fees, the decision could still have a negative impact on unions—public sector as well as private sector—in states permitting agency fees.
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