Davenport v. Washington Education Association - Oral Argument

Argument of Robert M. McKenna

Chief Justice Roberts: We'll hear argument next in 05-1589, Davenport versus Washington Education Association, and 05-1657 consolidated, Washington versus Washington Education Association.

General McKenna.

Mr. McKenna: Mr. Chief Justice, and may it please the Court:

Washington law authorizes union security agreements which permit unions to enter into collective bargaining agreements that require non-member employees to pay an agency shop fee or lose their job.

The union's authority to select these compelled fees is based solely on statute and the subject of statutory conditions.

Section 760, as adopted by Washington voters in 1992, requires unions to obtain the affirmative consent from non-members before their fees may be used to influence an election or operate a political committee.

760 serves the state's interest in election integrity by means of ensuring that union election activity is funded by voluntary contributions, just like every other organization that seeks political funds.

760 is a valid condition on the union statutory authority and does not violate the union's First Amendment rights.

760 serves the state's interests specified in the adopted initiative, which were... which are found at petition appendix 138a codified as RCW 4217.620.

Three interests in election integrity are stated, or three means of serving an interest in election integrity are stated in this portion, the intent portion of the statute.

First, to ensure that individuals have a fair and equal opportunity to influence elections; second, to reduce the influence of large organizational contributors; third, to restore public trust in the election process.

The Washington Supreme Court, petition appendix 22a-23a, agreed that the intent of Initiative 134 was to protect the integrity of the election process from the perception that individuals have an insignificant role to play.

Justice Scalia: I'm surprised that that's the... I would have thought its primary purpose would be to spare individuals the necessity of supporting causes that they don't support.

Was there no First Amendment interest.

Mr. McKenna: Justice Scalia, I--

Justice Scalia: Is it only an election law interest?

Mr. McKenna: --Actually, Justice Scalia, we believe that Section, Section 760 accomplishes both purposes.

The overall intent of the initiative was as I stated found by the State Supreme Court, but clearly from the plain language of Section 760--

Justice Scalia: But you just said the State Supreme Court was wrong.

I mean, why do you believe it on this if you don't believe it on everything else?

You're appealing from it, aren't you?

Mr. McKenna: --We believe that the integrity of the election process, Justice Scalia, is in fact served by helping ensure that individuals make voluntary contributions.

We think that in fact it does help the integrity of the election process, yes, sir.

Justice Alito: Well, how can the State Supreme Court determine what is the purpose, the intent, of the ballot initiative?

Mr. McKenna: I'm not certain, Your Honor.

They referred to the--

Justice Alito: A lot of people voted for it.

Mr. McKenna: --Right.

Justice Alito: But is the State Supreme Court in a position to determine why they voted for it?

Mr. McKenna: They simply hold, Your Honor, in their opinion that this is what the voters intended.

Justice Alito: How do they know that?

Mr. McKenna: I don't know how they know it, Your Honor.

Justice Breyer: If that's what they intended, then how can a State say, well, it's the union's money, we don't want you to send this little bit of your money to contribute in a campaign, but if the local swimming team wants to, or the bar association or the corporation, if they want to spend money that people have given them for totally other purposes, the compulsory bar association, well, they can do that.

It's just the labor unions that can't spend the money that these people forced to belong... you know, they have to object affirmatively... but all the other similar organizations, they can't.

Mr. McKenna: Your Honor, beginning with the Railway Labor Act case and continuing up through the public school teacher cases, Abood and Hudson, this Court has recognized that compelling employees to pay fees must be balanced against the need to protect them from--

Justice Breyer: Well, now you're talking about this other purpose, but that other purpose, which is rather interesting... I take it that's one of the main points on the other side... the other purpose has nothing to do with this case.

If Washington wanted to have a similar statute where it was worried about protecting the interests of the compelled member or the compelled payor, fine, fine, that would be a different case.

That isn't this case.

Mr. McKenna: --Your Honor--

Justice Breyer: In this case they couldn't care less about that.

Mr. McKenna: --Actually, Your Honor, I think the plain language of 760 makes it clear that the authors of the initiative intended to protect individual interests.

There is no meaningful distinction between the use of individuals in 760, in Section 760, than there is in the Hudson, in the Hudson statute, for example.

The Hudson statute, the Illinois statute at issue in Hudson, also required nonmembers to opt in in order to make, not just political contributions but any contributions.

But the Court, this Court, found no problem with Hudson or with the Illinois statute in that case.

Justice Breyer: That's true, but in that case, in that case they didn't have a State Supreme Court interpreting the statute which is just as you started off saying it was, which has nothing to with the rights of the nonmember, zero.

It has to do with the appearance of fairness in the election.

Mr. McKenna: Your Honor, with due respect that was the legal conclusion of the Washington Supreme Court.

It was not a construction of the statute.

It was a legal conclusion based on their reading or divining of voter intend.

But this Court is not bound by such an assessment.

Justice Kennedy: Well, I wanted to ask about that.

Suppose Washington says that as a matter of Washington law we are bound by our interpretation of purpose and we interpret the statute according to that purpose.

You use the words "plain language" a few minutes ago.

Mr. McKenna: Yes.

Yes.

Justice Kennedy: Are we free to disregard that and to say.

Oh well, we're just going to follow the plain language?

Mr. McKenna: No, no.

Justice Kennedy: Like the says that was argued, the first case this morning?

Mr. McKenna: Your Honor, as Chief Justice Roberts mentioned in the last case you heard this morning, first look to the plain language, as the Solicitor General has pointed out in numerous briefs--

Justice Kennedy: But that's a Federal, a Federal statute and this is a State statute.

If the State court says, we're interested in purposes, we decided, and you must as a matter of State law interpret the statute according to the purpose as we found it, aren't we bound by that?

Mr. McKenna: --I don't believe you are bound by that, Your Honor.

For example--

Justice Kennedy: What's your authority for that?

Mr. McKenna: --Wisconsin v. Mitchell, Your Honor.

In that case the Wisconsin Supreme Court was found by this Court not to have constructed the statute, but to have made an assessment of its practical effects, and this Court found it was not bound.

Similarly in Teller, a case more directly relevant to this case, the State Supreme Court found that the Bar Association of California is a governmental agency and this Court declined to follow the State Supreme Court of California and found that in fact it was not.

Justice Kennedy: Well, that's because the characterization had a Federal consequence.

Mr. McKenna: Your Honor, I simply observed that this Court did not find it was bound by the California Supreme Court's finding that the bar association is a government agency, nor did it find in Wisconsin v. Mitchell that it was bound by the Wisconsin Supreme Court in regards to its assessment of practical effects of the Wisconsin statute at issue there.

Justice Breyer: Do they get their money back?

If this is upheld and I'm an agency member, I hate the union, can't stand it, gave them the $20 for this and they spent it on a political candidate I hate even more and you win, do I get my $20 back or can the union just spend my $20 on something else?

Mr. McKenna: Your Honor, if it is a 760 expense they should get the money back.

If it is a non-760 expense which is not germane, then they would have to opt out at that... they would have to opt out to get that kind of money back, unless Your Honor is referring to what happens on, if the statute is upheld, what happens when we go back and have a further trial on the issues in this case.

I'm not sure which scenario you were envisioning, but--

Justice Breyer: I'm trying to get at the question is this the union's money or is this the workers', the teachers' money?

Mr. McKenna: --Your Honor--

Justice Breyer: So does he get this money back if they violate the statute.

Mr. McKenna: --Your Honor, the 760 money... excuse me.

The 760 money is not the union's money until they have satisfied the conditions laid out in the statute, in this case Section 760.

Possession of the fees does not entitle the WEA or any union to use those fees to influence an election or operate a political committee until after they have satisfied the condition on that collection, the condition being in this case they have to obtain affirmative authorization.

This Court held in Phillipson and Brown that, analogizing to that money, that non-members own the fees until the statutory conditions are satisfied.

Justice Scalia: Let, let's assume that it makes a difference whether the purpose of the statute was at least in part to protect the First Amendment rights of the non-union members or whether, as the Washington Supreme Court seemed to say... at least they said its principal purpose was to protect the voting process.

Elsewhere in its opinion, however, the Washington Supreme Court says where a statute is ambiguous and this court is able to construe it in a manner which renders it constitutional the court is obliged to do so, which sounds to me like good law.

Wouldn't that apply to its intuition as to what the--

intent of the people who enacted this statute were?

Mr. McKenna: Yes, sir--

Justice Scalia: Wouldn't the Washington Supreme Court be obliged to intuit that purpose which would make it constitutional rather than unconstitutional?

Mr. McKenna: --Yes, Your Honor, it would if in fact Section 760 were ambiguous.

It is, however, not ambiguous.

It is plain on its face, and in fact the Supreme Court did not state that any term or phrase in Section 760 is ambiguous.

Instead they referred to their divination of voter intent.

And I believe, Your Honor--

Justice Kennedy: Do you agree with the court's conclusion that constitutionality is at issue here?

Mr. McKenna: --The constitutionality of the statute with regard to the union's First Amendment rights is not at issue here, Your Honor, no.

Justice Kennedy: Isn't it your position that this statute is constitutional either way you interpret it?

Mr. McKenna: Yes, Your Honor, it is.

Your Honor, I'd like to make the further point that... and I think this is a fairly obvious point, but we think that since under your decisions the State can prohibit a union from collecting an agency fee altogether, that it is reasonable for the State to impose a condition on that collection which falls, falls far short of actually prohibiting it.

We further point out that in the Hudson case the Illinois statute at issue was effectively an opt-in statute, a statute under which no amount that was not germane could be collected in advance, unlike the more generous Washington State statute which allows the union, permits the union, to collect a fee in an amount equal to dues or would permit it to collect a fee which had been reduced in advance to reflect non-germane or reduced just to reflect 760 expenses.

It seems to us that it is within the power of the State to establish such a condition in the interest of an election's integrity by means of protecting the First Amendment interests of the non-members, and we think the statute does that very well without imposing in fact a substantial administrative burden on the union in this case or unions in general.

For example, the, the way that the WEA or any union can comply with Section 760 would be to simply place an additional form in the Hudson packet they send out.

Now, recognizing that the Hudson packet is about this thick, that it is received by the teachers in September, the busiest month of the year for teachers, and that there is no form currently provided in that packet whatsoever to allow people to opt out, but rather a statement that you must send a letter to the union to opt out, we think it's quite easy.

And we look to the WEA PAC for instruction on what they could do.

But now.

Because the WEA has chosen to form a PAC and is required to solicit members and non-members if they choose in order to contribute to that PAC, they do a very good job of soliciting members.

They include a very convenient form encouraging people to check off and send their dues in to the PAC to support candidate elections.

They provide no such form for the opt-out process, but it would be easy for them to do so.

The burden imposed on them is not great administratively, as they suggest, any more than the burden on the other teachers unions in Abood or in Hudson because it can easily be met through these simple.

If there are no further questions, Your Honor, I'd like to reserve the balance of my time.

Argument of Paul D. Clement

Chief Justice Roberts: Thank you, General.

General Clement.

Mr. Clement: Mr. Chief Justice and may it please the Court:

The statute at issue here imposes only a narrow limitation on the union's use of agency fees, namely by requiring the affirmative assent of the non-members before the union may use those funds for non-germane political expenditures.

The statute does not limit the union's ability to spend its own money on political causes and every avenue that is available to any other organization in the State to solicit contributions from non-members remains available to the union.

The court below nonetheless struck the statute down only by treating the workers' minimum constitutional rights as a constitutional ceiling as well as a floor.

In the process, the court below rigidly constitutionalized an area of labor law in which the States and the Federal Government have at least since the Lochner era enjoyed substantial discretion to make labor policy.

We would request that the Court reverse the decision below, but also reverse and restore room for play in the joints in this area of labor law.

I think the starting problem with the court's analysis below is that the rights that are at issue in this area principally are the rights of the individual workers.

This court has recognized that agency shop itself raises significant First Amendment issues and First Amendment impingements and so the forced extraction of fees is justified only to the extent that it can be justified by the government's interest in maintaining labor peace or in avoiding free ridership.

So as a minimum constitutional matter, the workers have to have an opt-out right.

The question is whether the States can go further and either do an opt-in regime or do what was at issue in the Hudson case and not even allow the union to collect the non-germane funds in the first place from non-members.

Justice Stevens: Mr. Clement, if we reverse as you suggest and the State Supreme Court said, well, I guess we were wrong under the First Amendment, we just realized our State constitution requires the same result, would that judgment stand, do you think?

Mr. Clement: I think it might well.

I mean, I think there might be an argument at that point that somehow the Federal Constitution requires more than opt-out rights.

Certainly some of the amici have made that argument.

The Davenport Petitioners have made that argument, and I suppose you could at that point confront a second petition in this case.

But at least as a starting matter, I think that's an option that's available to the Washington Supreme Court.

Justice Kennedy: But Washington... at a minimum, I would assume that the Washington Supreme Court would not have constitutional avoidance as a crutch in order to reach that, to reach that conclusion, because there is no constitutional issue here under your view.

Mr. Clement: Right, though I mean... I don't mean to be able to constrain the Washington Supreme Court's ability to find a State constitutional problem that it would then think there's a need to avoid.

Justice Scalia: Are the courts in Washington State elected, do we know that?

Are they elected?

Mr. Clement: They are elected.

Justice Scalia: They are elected, so it's easier to blame it on us than it is for them to say, we hold as a matter of Washington law that this can't be done and we disallow what the people have voted for.

That would be harder, a harder call, don't you think?

Mr. Clement: It might be a harder call, Justice Scalia.

I seem to recall a reference... it might have actually been in the court of appeals opinion rather than in the State Supreme Court opinion... that as a general matter the Washington courts have not construed their First Amendment, State constituent First Amendment to be radically different than the Federal Constitution.

So I would imagine there's going to be some State law that may limit their ability to do that.

I'm certainly not an expert on the Washington State law of the First Amendment.

Justice Alito: Well, if this money is the non-union member's money and an opt-out... I'm sorry... opt-in scheme is not much of a burden on the unions, why should the First Amendment permit anything other than an opt-in scheme.

Mr. Clement: Well, Justice Scalia, it's a fair question.

As I say, it's a question that's certainly raised by the Davenport Petitioners.

I think there's an answer to it and I'll get to it in a minute.

But I would say in fairness to Mr.... one of the anomalies of this case is that in many respects I think that's a more difficult constitutional question than the one that the Washington Supreme Court answered adversely to Petitioners in this case.

I think, if I can sketch an answer as to why it is that the opt out is the constitutional minimum and there isn't as a matter of constitutional law required to be an opt-in right, I think it goes back to what the Court has construed as the relevant First Amendment interest here.

And the Court has seemingly construed the relevant First Amendment interest here in not having a compelled extraction, and as part and parcel of the constitutional violation, it seems to have assumed there's a need for a stated objection.

And I think that's where you get the opt-out right.

And so if you put it in the analogy, an analogous compelled speech context like Willie against Maynard and the New Hampshire license plate, in that context an important parcel of the violation is the objection to having "Live Free or Die" on your license plate.

And the Court hasn't construed the compelled speech there to be that everybody has a compelled speech violation because they are presumptively forced to have the license plate on the back of their car.

So I think that--

Justice Alito: The union can make it as difficult as it wants for somebody to opt out.

They can send a packet that's this thick and not provide a form.

Mr. Clement: --I wouldn't think so, Justice Alito.

And I think that there are two separate questions, I would think.

One is, what is an adequate set of procedures and protections for exercising the opt-out right?

And then a separate question would be, do you actually have to go all the way to an opt-in right?

And I think that there may well be many cases where the Hudson notice that's provided doesn't provide a sufficient constitutional opportunity.

I mean, you have in a case like this, a 100-page packet, I'm told, that has no... no form in it that you're supposed to return to opt out.

You basically have to go to the third page, find the address of the president of the union, and then send in a letter.

And I think it's instructive if you look in the joint appendix, I think it's at page joint appendix 45, you have the form that's available to union members to opt in to PAC contributions, and have payroll deductions made for the PAC contributions.

The union certainly makes it much easier to opt in to PAC contributions than it makes it to opt out vis a vis the Hudson packet.

Justice Ginsburg: Is it relevant, General Clement, that the legislature didn't seem to be, or the ballot initiative didn't seem to be focused at all on beefing up the rights of the non-member of the union?

It seemed to be concerned with the integrity of the election process, because they left the same old Hudson in place for union nongermane spending that didn't have to do with elections.

Mr. Clement: That's absolutely right, Justice Ginsburg, and I think the way we look at it is that this whole debate about the purpose of the provision is a little bit of a red herring, because at the end of the day it's clearly a hybrid.

If you look at the text, it's hard to understand how it does not have at least the effect of protecting workers.

On the other hand, you're absolutely right that it doesn't address the entirety of germane, of non-germane expenses.

It addressed a subset that have the most direct impact on the election process.

Justice Scalia: Or even nongermane political expenses.

Mr. Clement: That's true.

That's true, I mean, for example, a nongermane lobbying expense which you might consider to be political in some broad sense, is not covered by the opt-in and remains subject to the Hudson opt out right.

But I don't think that there is certainly anything problematic about that.

It's not like the interest in protecting electoral integrity is some sort of forbidden government interest that makes this a suspicious piece of legislation.

And I think at the end, if you again put the text of the relevant provision together with the overall purpose, it's clear that it's trying to protect the rights of workers but it's doing so in service of a broader intent of improving electoral integrity, and I could suggest where maybe the Washington Supreme Court went awry in its analysis, it focused almost exclusively on the three stated purposes that were included in the text of Initiative 134, which were all focused more on electoral integrity.

That's not surprising, because there were 36 sections in Initiative 134 that dealt with the whole manner of different campaign finance initiatives.

Before this initiative was passed by the voters of Washington there weren't any campaign contribution limits in the State of Washington.

So this initiative is doing a lot more work, just besides Section 760.

I think 760 isn't unrelated to those broader purposes because it does make sure that the contributions of the workers here are voluntary, and I think that is certainly something that's very similar to what Federal law accomplishes through the separate segregated fund requirements.

If I could make just one note about the fact that this targets unions and not other entities, I think two points are relevant.

The first is that argument was very clearly waived, and if you look at footnote 6 of the Washington Supreme Court opinion which is at 25a of the... of the State's petition appendix, it's clear that any argument about the, the disparate treatment of unions versus corporations or other entities was not before that court.

Justice Scalia: Well, are there any other such entities that are given the power by the State to collect money from people against their will?

Mr. Clement: You've anticipated my second point, which is the power that's being... I mean, it's no accident that they targeted this particular power or this particular issue because it has always been understood to be an anomaly in this area.

That the unions have a right to effectively take a claim on the paycheck on people who are nonmembers of the union.

These are individuals who have already opted out of union membership, and that is a sufficient anomaly and sufficiently unlike any other context that I think there is nothing that prevents the State of Washington from targeting that problem and that problem alone.

If there are no further questions, thank you.

Argument of John M. West

Chief Justice Roberts: Thank you, General.

Mr. West.

Mr. West: Thank you, Mr. Chief... Mr. Chief Justice, and may it please the Court:

Our submission that Section 760 unconstitutionally burdens the union's First Amendment right to engage in political advocacy rests on three points.

One, the statute before the Court is a campaign finance law that was enacted for the purpose of protecting the public's interest in the integrity of the electoral process.

Two, it is a content-based restriction on speech, which cannot be justified by the State's authority to limit agency fees in the first place.

Three, the statute does not serve a compelling State interest both because it is overbroad in restricting, restricting speech on ballot propositions and because it's underinclusive in regulating the campaign speech of unions but not of other comparably situated entities.

Justice Kennedy: Are the First Amendment rights of the union members, of the workers who are non-union members relevant?

Mr. West: Uh, the First Amendment rights--

Justice Kennedy: I mean, you... you begin by talking about the First Amendment but you, you proceed as if there are no First Amendment rights of, of workers involved at all.

Mr. West: --The... the... the nonmember employees certainly have a First Amendment right not to be compelled to finance, help finance political, ideological and other nongermane expenditures over their objection.

And that right is fully protected independently of 760 by the Hudson process, and as the Washington Supreme Court held, when there is the availability of a ready means for opting out of that participation in, in financing those causes, there is no compelled speech.

And this is what the, what the First Amendment gives to the nonmember fee payers.

Justice Kennedy: Well, I take it States have considerable discretion in determining how to protect Federal constitutional rights.

Mr. West: The States--

Justice Kennedy: And absent some direction that we have to consider this as only being for a, for purposes of election transparency, it seems to me that Washington acted quite properly in saying we will use this mechanism in order to protect our workers' First Amendment constitutional rights.

Mr. West: --Well, what the State is protecting, Justice Kennedy, is not the First Amendment right itself which by definition is protected through the Hudson process.

Justice Souter: Well, why can't the State protect it more?

I mean the fact that Hudson would be adequate... it--

Mr. West: The State--

Justice Souter: --from that it does not follow that the State is not protecting the rights.

Mr. West: --The State can certainly protect the interest that is protected by the First Amendment right more, or to a greater degree, but if it does so, it can only do so if it does not infringe on other constitutional rights.

And if it does then the question is whether the State's regulation that infringes on other constitutional rights, in this case the union's First Amendment right of political advocacy, whether that infringement is justified by a compelling State interest.

Justice Souter: And your claim as I take it, that there is an infringement with the union's right of political advocacy, is that if in effect the scheme restricts the union's use of its own funds?

Mr. West: The scheme restricts the, the use of funds that are, are properly collected from agency fee payers by the union and--

Justice Souter: All right.

You agree that the union could segregate these funds as opposed to commingling them, and that would cure, that would in effect answer your, your constitutional objection?

Mr. West: --Well, it wouldn't, because then the question is what do you do after you've segregated them.

If the statute--

Justice Souter: Well, it's clear from the statute that, that what you would do would be leave them subject to the opt-in determination, but all other funds, i.e., the funds that you are constitutionally entitled to protect, would be unencumbered.

Mr. West: --Certainly Justice Souter, but then the question is, for those fee payers, and certainly there are going to be some out of three or four thousand that do not give affirmative authorization, then what do you do with their funds?

And the, the--

Justice Souter: Do you think that would create an independent constitutional problem assuming that you did segregate the funds?

Mr. West: --Justice Souter, the--

Justice Souter: That would, that would create an issue?

You know, what if they say: Nothing?

Maybe, maybe the statute does not deal adequately with that.

But does that raise a constitutional problem that in effect would be, would be of equal parity with the one that is, that is raised on behalf of the, the, the dissenting workers?

Mr. West: --Justice Souter, the reason it raises a constitutional problem is because of the content discrimination issue.

What the State is saying is that you have a right to collect an agency fee that is the full equivalent of union dues, but if you choose to spend any money from your treasury for electoral advocacy, you may spend whatever you want from your treasury for... for legislative lobbying, for public relations, for all kinds of other issues, forms of speech that are not chargeable to objectors.

But if you choose to spend any for one particular type of speech, namely electoral advocacy, then you must segregate and refund a portion of the--

Justice Ginsburg: But that's, under--

Mr. West: --to the fee payers.

Justice Ginsburg: --Under the Federal law you can't even have this opt-in system.

You have to have a separate organization as I understand, for the election.

So there would be no, no possibility that the nonmember of the union, that funds would go to election financing.

Mr. West: Certainly, Justice Ginsburg.

Justice Ginsburg: And that's much harder on the union, I would think, isn't it?

Mr. West: Well, it's much harder on the union in that respect but not in the respect that's critical here, and that is the Federal law as well as the laws of all the other States who have, have required separate segregated funds limit that requirement to candidate elections.

The, the reason this statute is unconstitutional, the reason it does not consist of a compelling, does not provide a compelling governmental interest in regulating elections, is because it goes far beyond the permissible realm of regulating expenditures on candidate elections, and prohibits the union without affirmative authorization from spending its funds for ballot propositions.

Justice Souter: You're... you're back to its funds again.

Mr. West: Whether they're--

Justice Souter: And you're saying, first you said well, segregating the funds does not answer the problem.

And I thought the reason it didn't answer the problem was that the, that it was, that the purposes of the, of the act were underinclusive.

And now you're responding to Justice Ginsburg by going back to making the assumption that the segregated funds would be the union's funds.

Mr. West: --Justice Souter, if they are segregated, if the union segregates them, assuming they don't... for those for whom they don't receive affirmative authorization, they keep them in escrow indefinitely, or they put them in a locked box and never do anything with them, certainly the union would satisfy the statute in... in that way.

But what, what the statute says as interpreted by the trial court, if then the union puts those funds back into its general treasury, or even if it doesn't, and spends them in some way for some purpose whatever, that it's violating the statute.

And the only way that the union can comply is by not only segregating the funds, but then if affirmative authorization is not received, by rebating a certain portion of the fund to the individual fee payers.

Chief Justice Roberts: And I thought that approach was exactly what we held was required in the Street decision, the International Association of Machinists versus Street, so that you can't get around this requirement by saying, oh well, we'll use the objectors' funds for collective bargaining and we'll use the others for that.

Mr. West: Sure.

Exactly.

And that's... and that's why I think that that interpretation of the statute may be correct.

But the problem we have here is this is a statute, and why it's unconstitutional is this is a statute that is saying this only with respect to a particular kind of speech.

It's saying the union may collect a hundred percent of dues and it may spend them in whatever way it deems appropriate for--

Chief Justice Roberts: Doesn't that objection apply whether it's opt in or opt out?

Mr. West: --No, it doesn't, Mr. Chief Justice, because the... the... in... in the Street and Abood decisions, the Court has... has said that there is... all... has talked in terms of expenditures that are not germane to collective bargaining.

Justice Scalia: Is it content discrimination which subjects legislation to strict scrutiny if the Government, Federal Government or a State designates certain funds for use by school districts to teach patriotism, American history, something like that?

Is that subject to strict scrutiny?

Mr. West: No, because this is Government funding.

This is--

Justice Scalia: Okay.

Now let's assume it's not Government funding.

Instead of doing that the Government says, you will have authority to collect money from certain people only for a particular purpose.

Is that content discrimination which calls into play strict scrutiny?

Mr. West: --I believe it is, Justice Scalia, because--

Justice Scalia: I don't see why the one is any worse than the other.

The Government has a particular purpose in mind and in one case it gives out money with that purpose in mind, which discriminates of course; in the other case it allows this extraordinary power to exact funds from people, but only for certain purposes.

That's not the kind of content discrimination that they calls strict scrutiny into play, it seems to me.

Mr. West: --It's strict scrutiny if it's not the Government acting as the speaker, and the Government is acting here as--

Justice Scalia: Here is the Government acting as a coercer.

It's because of the Government that you're allowed to get this money from these non-union members.

Mr. West: --Well, I don't believe the Court has ever put it quite that way in the Government speech cases, the Government funding cases.

Justice Stevens: May I ask this question on your overinclusive, or underinclusive rather, argument?

Supposing the statute was broader and said the union may not use any non-member agency fee collections for any non-germane purpose at all without affirmative consent?

Would that solve all the constitutional problems?

Mr. West: I think the problem here... let me say two things in response to that, Justice Stevens.

Justice Stevens: Could you just tell me yes or no, and then explain?

Mr. West: Certainly.

Well, the answer is yes and no.

The answer is, if you're talking about--

[Laughter]

Justice Stevens: At least insofar as your argument under inclusiveness, the answer would have to be that was, that statute would be okay.

Mr. West: If... if the... if you're... if what you're doing is talking about the, an election statute like--

Justice Stevens: I'm talking about a statute that the individuals say I don't want to spend any more money, give any more money to the union than I absolutely have to.

And the legislature decides to protect the right, that right by saying you cannot use agency sock fees for any non-germane purpose.

What's wrong with that?

Mr. West: --That, Justice Stevens, if this is what the state is saying with respect to the public sector employees as to which it has the authority to regulate the agency fee.

This is perfectly constitutional.

This is the kind of--

Justice Stevens: If that's perfectly constitutional, this is a fortiori okay.

Mr. West: --It's not--

Justice Stevens: And it's less of a burden on the union and there's less protection to the employee.

Mr. West: --No, it's not.

It's a different case for two reasons, Justice Stevens.

First of all, because it's content discriminatory.

It's not saying the... it's not saying you... we limit the agency fee to the nonchargeable, the non-germane, or to the purposes that are germane to collective bargaining.

The State can permissibly do that because it's making--

Chief Justice Roberts: Why isn't that a content-based restriction?

You've got to look at it and see if it's germane.

Mr. West: --The purposes that... the purposes for which the... that are being excluded in that case are a wide variety of different kinds of speech and non-speech activities, not only political speech but public relations.

Many courts have interpreted organizing activities to be non-germane to collective bargaining.

Membership benefits that are not available, non-members are put in that category.

Donations to charities.

International activities.

There's a whole variety of union expenditures that the courts have held are not germane to collective bargaining and cannot be charged over a non-member's objection, and a State would be perfectly free, as several states like Pennsylvania and New Mexico have, to say our judgment is that our interest in labor peace does not extend further than in authorizing an agency fee that includes purposes germane to collective bargaining.

Justice Breyer: I'm just curious below in the opinion, I didn't notice in footnote 6, which I hadn't taken in, that the court explicitly says that you did not make any argument about underinclusiveness and overinclusiveness with respect to other organizations, corporations and so forth.

Now, did... I can't recall, I just don't recall.

What you're saying now, I take it, is that the word "election", you can't use it for elections, and elections involve candidates and they also involve ballot issues.

Mr. West: Correct.

Justice Breyer: And you're saying that the real problem with this statute is that it throws in ballot issues along with candidate elections.

Mr. West: Well, there are two problems.

There's the concept... I mean, there's--

Justice Breyer: But on that first one, did they discuss that at some length in the lower court opinion?

I don't--

Mr. West: --The lower court, no, did not discuss the--

Justice Breyer: --So this is really a ground that they haven't considered.

Mr. West: --What the Washington Supreme Court held is that the... what was argued in the Washington Supreme Court generally is that this is a violation of the union's right to engage in political advocacy.

Justice Breyer: But this thing about the ballot issue is not there.

Mr. West: And the reason... this is a reason I think the Washington Supreme Court took note of the fact of what the funds were spent on, on balloting initiatives solely, not on candidate elections.

Justice Breyer: In fact, you want to us decide that question, and was there another one that... you just said there were two reasons basically.

Mr. West: Well, the two reasons why the statute fails to constitute a compelling Government interest are the overbroad extension to ballot propositions, unlike the Federal law and any other State law.

And secondly, the underinclusiveness that this is a statute that is ostensibly intended to protect the integrity of the elections by ensuring that the funds that organizations spend for political electoral purposes represent the views of the people from whom those funds were derived.

And the... what the State has chosen to regulate to advance that interest is solely people who already have the opportunity to prevent the use of their funds for purposes they disagree with, while not regulating at all other entities in which--

Chief Justice Roberts: That's the argument that the State Supreme Court in footnote 6 expressly said you did not raise.

Mr. West: --I think that would be a valid argument if we were attempting to raise an equal protection claim here, Mr. Chief Justice.

That's not what we're doing.

What we're saying, we are making an argument based on what the State Supreme Court held, namely that this is a violation of the... the union's right to engage in political speech, and this is one of the reasons for it.

Granted, that particular justification for the ruling was not argued below, but this is not like we were attempting to argue equal protection, a totally new basis.

Justice Ginsburg: On which... on what you were arguing, you were very careful in your brief to say funds lawfully possessed by the union, as distinguished from what's in a corporate treasury or... there is something peculiar about this, and you recognized it by saying we possess them, because if the non-member wants it back, the non-member would be entitled.

So it's not like money in the corporate till.

Mr. West: Well, it is, Justice Ginsburg, if the... this is why the purpose of the statute is so important.

If the purpose of the statute is to protect the integrity of the elections by ensuring that what organizations spend for political purposes represents the views of those who contributed the money, then it's very much to the point that there are other organizations.

For example, the Michigan Chamber of Commerce--

Justice Kennedy: You want us to consider this case as if the First Amendment rights of non-union members were not involved?

Mr. West: --Absolutely... absolutely not, Justice Kennedy.

We recognize--

Justice Kennedy: But that's been your whole argument so far.

Mr. West: --Absolutely not.

I'm sorry, Justice Kennedy, but that's certainly not what I intend to be saying.

We recognize that the non-members have First Amendment rights.

We also recognize that those rights are protected by the Hudson procedures which the union uses.

The non-members have the absolute right to prevent the use of their funds not only for this kind of electoral speech but for any kind of political ideological speech and other nonchargeable activities with which they disagree simply by sending in a letter.

Justice Stevens: So it's a First Amendment right that is waived by failing to make a timely objection.

Mr. West: Well, it's not that a right is waived.

What it is--

Justice Stevens: It's gone under your theory.

Mr. West: --No.

It's... Justice Stevens, it's what the right is.

The constitutional right is a right against being required to... to engage in compelled speech.

Justice Scalia: Which no longer exists if you don't make a timely objection.

Mr. West: No, you have the... but that would be just like... like the solicitor general on the... the license plate case.

Someone who receives in the mail the license plate that says "Live Free or Die" or "Taxation Without Representation" and puts it on his car is not waiving a constitutional right by--

Justice Alito: It's not exactly the same situation.

These are teachers who have chosen not to join the Washington Education Association; isn't that right?

Mr. West: --These are teachers who have not joined the Washington Education--

Justice Alito: Isn't it overwhelmingly likely that they, if you spoke to them and you said would you like to give money to the union to spend on elections, they would say no?

Mr. West: --I absolutely disagree with you, Justice Alito, because keep in mind--

Justice Alito: Explain to me the thinking of somebody who chooses not to join, the 5 percent who choose not to join, and yet they would like to make this contribution.

Now maybe there's some, but what would be the thinking of such a person?

Mr. West: --It's not asking them to make a contribution.

It's asking them, is it okay with you if your money is used for this purpose.

But keep in mind what the money is being used for here.

Justice Alito: What's the difference between that?

Mr. West: The money is being used--

Justice Alito: What's the difference between saying would you like to make a contribution, and would you like to allow us to use money that we possess for our purposes rather than returning it to us?

What's the difference between those two?

Mr. West: --Well, whether there is a difference or not, Justice Alito, the point is the union here is using this money for purposes that it has every reason to believe is in the interest of the vast majority of teachers, including--

Chief Justice Roberts: Well surely, they get to make that decision, don't they?

Under the statute, it's their decision whether or not... you don't get to say, well, this is in your interests, or whether you'd want to spend the money or not.

Mr. West: --No, but I'm responding to the suggestion that there should be some kind of presumption that they would, would decline to authorize this.

That's... the question you raised, Mr. Chief Justice, is exactly the question before the Court, whether the State can, constitutionally can insist that the union obtain affirmative authorization for this particular type of speech and for no other type of speech.

Let me... let me suggest--

Justice Alito: I still don't understand the thinking of these hypothetical people.

If I'm a union member, I get various benefits.

If I choose not to be a union member, I don't get those benefits.

Why would I choose to give up the benefits of union membership and yet want to allow the union to spend my money for its political purposes?

Mr. West: --Well, maybe Mr.... Justice Alito, if you knew that what the union was spending its money for was to improve, to increase cost of living adjustments for teachers or to reduce class size for teachers, or to enact tax levies in local school districts--

Justice Ginsburg: Is this all hypothetical, Mr. West, or is there any empirical evidence about what the people who are non-union members, if they had their druthers, would they say not a penny more goes into the union till than we are forced to put there?

Is there any empirical evidence that divides up the universe of people who don't, deliberately don't join unions?

Mr. West: --No.

Justice Ginsburg, there's a lot of speculation on both sides.

I don't think there's any empirical evidence, but there is plenty of reason to think that there are many reasons that people choose not to join the union, whether from a free rider motivation, whether from just not being a joiner, any variety of reasons.

Some of them may be--

Chief Justice Roberts: Well, you're free under this system to send them the same sort of materials you send about your PAC and say we do all sorts of good things with the money from people who opt in, you should opt in.

Mr. West: --Yeah.

Chief Justice Roberts: But you want to do it without giving them that opportunity.

Mr. West: Well, the question is whether the State can compel us to, to obtain that authorization for this limited type of speech.

Justice Scalia: Only if the State has given you the power to exact the money from these people.

That changes everything.

If this was money that they had contributed themselves, you'd have a different argument, but the State compels them to give you that money and the State says however, you will not use this money for this purpose without their consent.

Mr. West: It doesn't change everything, Justice Scalia, precisely for the reasons that you discussed in your opinion for the court in RAV versus St. Paul, the St. Paul cross-burning case, where you pointed out that, that the greater includes the lesser argument does not apply where you have content discrimination.

The State could justifiably ban all symbols and displays that involve fighting words, but it could not single out a particular--

Justice Scalia: That brings us back to the question I asked earlier and I suggested in my answer to that I don't think it's content discrimination of the sort that triggers strict scrutiny when the government gives money for a particular purpose only and not for other purposes, and I also don't think it's content discrimination of the sort that triggers strict scrutiny when the government allows a private organization to use governmental power to exact money from people for a particular purpose only.

That's a different ball game.

Mr. West: --Justice Scalia, imagine, if I may take a little bit starker example, imagine that what the government said in the statute that the union must obtain affirmative authorization if it is going to use agency fee funds to support Democratic candidates, but not if it's going to support Republican candidates.

Obviously it couldn't do that.

Justice Breyer: And I see that you've put a lot of weight on this argument.

Mr. West: And that... it goes further than this.

That's viewpoint discrimination.

But this is content discrimination and the Court has held in Consolidated Edison and a number of other cases that that is also a constitutional problem.

Justice Breyer: What you're saying right now, if it is, is ballots versus candidates under the word "election".

Mr. West: Exactly.

Justice Breyer: And that has a lot of implications for all kinds of campaign finance law that has nothing to do, I think, with unions.

Mr. West: Exactly.

Justice Breyer: And the lower court didn't consider it, and is this open now, if it's going back for other things such as the State Constitution, for them to consider this matter on remand?

Mr. West: I think it would be open to them to consider.

I also think it's a matter that when we get to that point at least--

Justice Breyer: And I don't know, perhaps you don't know, what the implication of a decision say in your favor here would have for Vermont's campaign finance law or California's or some other.

Mr. West: --Perhaps, but it's certainly true that on this, at least on this point of the lack of any compelling justification for restricting entities' contributions and expenditures in support of or in opposition to ballot propositions, the law, this Court's law, is fully clearly on that point.

It's our submission, Mr. Chief Justice, that what you have here is a content-based restriction on WEA's ability to engage in political speech on issues of educational policy that are of vital importance to the 70,000 teachers that it represents.

Justice Kennedy: Could the State have a restriction requiring affirmative authorization for all union expenditures that fall within the Abood-Machinist line of cases?

Mr. West: Yes.

If this were... particularly if this were--

Justice Kennedy: If this were across the board as to all First Amendment rights an objecting member has, then the statute would be void... would be valid, rather?

Mr. West: --Certainly if this were done in the statute that authorized the agency fee in the first place.

Justice Kennedy: No, it's done in this statute.

Mr. West: If it's done in this statute, the problem that would remain, Justice Kennedy, is this is an election law that presumably has to be justified on the basis of whether it promotes the integrity of elections.

And when you have--

Justice Kennedy: Well, my hypothetical is that there's a Washington statute or a Washington constitutional referendum provision, initiative provision, which says that as to all protected speech for non-union members who have moneys taken out, there must be affirmative authorization.

Mr. West: --The State could do that, at least if it limited it to the public sector, where the State has the authority to authorize the amount of the agency fee.

I believe the State could do that.

The State could certainly... some people have talked about the size of the Hudson notice.

The State could impose requirements that the notice be clearer, that it be shorter.

The state could impose that affirmative authorization requirement.

The State could limit the--

Justice Stevens: Back to your example about the political party saying you can't use it for Democrats, what if they said, as they might have in the 1940s, you can use it for anybody except communist candidates?

Mr. West: --Well, I think that would be a problem, too.

And that's--

Justice Stevens: Okay.

Mr. West: --That would be viewpoint discriminatory, but here we have a legislative statute that, that it's content discriminatory, that can't be justified as a compelling State interest to promote the integrity of the elections, and we believe the judgment of the Washington Supreme Court should be affirmed.

Thank you.

Rebuttal of Robert M. McKenna

Chief Justice Roberts: Thank you, Mr. West.

General McKenna, you have 7 minutes remaining.

Mr. McKenna: Mr. Chief Justice, thank you.

First of all, I wanted to get back to a question raised by Justice Breyer concerning whether they get their money back.

I took your question to refer to a hypothetical, but allow me to address the real circumstances in this case by referring to the joint appendix at 210-212.

These are the pages covering the permanent injunction that was entered by the trial court.

Under that permanent injunction, the WEA shall return to all agency fee payers who have not affirmatively authorized the use of their fees for expenditures, and it lays out the means of doing that.

For the first 2 years there's an agreed-upon amount.

For the next 3 years of the injunction there's another amount.

But they do get their money back under that injunction.

Referring to the issue of whether they waive or not, under the current process used by the WEA, referring to JA-198, which is the letter sent out on September 15, 2000, by the WEA to the non-members, you'll note the statement, quote:

"If such written objection has not been postmarked by October 16, 2000, you will waive your ability to object. "

The State of Washington's position is that non-members should not be required to say no twice.

They said no when they chose not to join the union.

The union's position now is, well, we get to use your money for political purposes unless you say no a second time.

That does not seem to be a reasonable default position to take and certainly we believe the State--

Justice Ginsburg: But the State of Washington seems to think that's fine for everything other than election expenses.

Mr. McKenna: --Yes, Your Honor, in terms of Section 760 the State of Washington does think that's fine because of the purpose of the statute and the purpose of Section 760, the purpose being to protect the integrity of the elections by several different means involving protecting--

Chief Justice Roberts: Well, do you see an underlying constitutional problem as to non-election expenditures that are still political expenditures?

Mr. McKenna: --We don't take a position on whether there's a constitutional problem with regard to non-germane expenditures, Your Honor.

But we do believe--

Chief Justice Roberts: Didn't we take one in Abood?

Mr. McKenna: --I'm sorry?

Chief Justice Roberts: Didn't we take a position in Abood?

Mr. McKenna: What I meant was--

Chief Justice Roberts: I suppose the way the statute works, you have to opt in for the election expenditures, but you have to have a right to opt out for other non-germane.

Mr. McKenna: --Yes.

Your Honor, the Chief Justice is correct, of course.

What I thought the question was about was the question of whether or not all, all non-germane expenses must be opt-in, must be provided.

That's all I meant.

You're absolutely correct.

Of course, in your decisions opt-out is satisfactory, and we're not saying that opt-out is not satisfactory here as far as the State's position is concerned.

But what we are saying is that the State has the right to impose this additional requirement of affirmative authorization.

Justice Stevens: What do you say about his hypothetical involving Democrats versus Republicans?

Mr. McKenna: Well, Your Honor, that would certainly seem to be viewpoint discrimination, and it would implicate--

Justice Stevens: Well, he says, well, this is content discrimination.

Is that--

Mr. McKenna: --Your Honor, we do not agree that this is content, content discrimination.

This is content neutral.

760 establishes a procedure, that is to say a requirement that must be met before the money may be used.

Justice Stevens: --Well, but it's content in the sense that only some speech has to be affirmatively authorized.

Mr. McKenna: Yes, Your Honor, that additional affirmative authorization does apply to this category of speech, influencing an election or operating a political committee.

But we don't believe that it is problematic constitutionally any more than the argument of Taxpayers With Representations in the Reagan case was, where they argued that they had a constitutional right to receive tax deductible contributions and use them for lobbying.

The Court found to the contrary.

And indeed, Initiative 134 is about protecting individuals.

It's about protecting individuals in Section 760.

It says in the intent section--

Justice Stevens: Can I just go back to, you mentioned my question.

Mr. McKenna: --Yes, sir.

Justice Stevens: Your point of your answer to his hypothetical is, well, the viewpoint discrimination would be impermissible, but the content discrimination is permissible?

Mr. McKenna: If it is content discrimination, Your Honor, we believe it is permissible, yes, sir.

And if it were viewpoint... in the hypothetical, if there were viewpoint discrimination that would not implicate any constitutional right of the union, but it may very well implicate the Southworth interests of the non-member fee payers.

Chief Justice Roberts: Is it content?

I mean, it doesn't say which way you're trying to influence the election.

Mr. McKenna: We don't believe it is content-based, Your Honor.

As I said, we don't believe it is, because it's any election of any kind.

Justice Ginsburg: Well, the content means a category of speech as opposed to what is the political position you're taking.

Mr. McKenna: Yes, that is it's only in regard to influencing elections or operating a political committee, which is a second.

Justice Ginsburg: But I thought that that was content.

You could do it, say, in the press, but you couldn't do it over the air.

Justice Scalia: That's my understanding, too.

I think you got to get out of it some other way.

I mean, you've got to say it's content but it doesn't apply when it's the government contributing money or it doesn't apply when you're applying it to money that's being coerced by the government.

Mr. McKenna: Yes, Your Honor.

Justice Breyer: If that's yes, then the category here is election speech.

If you're going to call a statute that treats election speech especially, then all of campaign finance regulation would fall in that category.

And if you're going to use that distinction to say strict scrutiny applies, then strict scrutiny would apply to all campaign finance regulation.

And courts never to my knowledge apply strict scrutiny to campaign finance regulation because there are speech interests on both sides of the equation.

Mr. McKenna: Yes, Your Honor.

Of course, we believe that--

Justice Breyer: I'm glad you said yes to me because that implies a no to the last question.

[Laughter]

Mr. McKenna: --Yes, Your Honor, I understand your question.

[Laughter]

And we believe that... we believe of course that Section 760 is not subject to strict scrutiny, it is subject at most to a rationale basis; and that clearly there is a rationale basis for the State in this case to require the affirmative authorization of non-member fee payers.

Justice Scalia: Can you get to the point you were about to make, what the purpose of the thing is?

Mr. McKenna: Well, yes, Your Honor.

Your Honor, the Supreme Court of Washington found a purpose of the entire law, Initiative 134, to be to protect election integrity.

But 760 is one means of achieving that purpose by means of protecting individual interests.

Similarly, Section 680 of this law, which, I apologize, is not in the joint appendix, but it's RCW 4217-680, which requires positive checkoff before an employer may deduct PAC contributions for any employee.

Justice Souter: May I just... I'm sorry.

May I just take you back to the point of the objective being protection of election integrity.

As I understand it, so far as the protection of election integrity is concerned, with respect to these contributions, that is simply the obverse side or the flip side, if you will, of protecting the right of the dissenting union member or the non-joined... strike that... the non-union worker, to control the use of the funds that would be used for the political purposes.

The one is simply the obverse of the other.

Do you agree?

Mr. McKenna: Yes, Your Honor.

We believe they are two sides of the same coin.

Justice Souter: So by articulating that the election integrity is a purpose, the Washington Supreme Court should not be understood as excluding the protection of the non-member workers' interests?

Mr. McKenna: Yes, Your Honor.

I would agree.

Thank you.

Chief Justice Roberts: Thank you, General.

The case is submitted.