State gains steam in union case before high court

WASHINGTON — The Supreme Court appeared ready Wednesday to reject claims that the First Amendment prohibits Washington state from forcing unions to get permission before spending some of the money they collect on political causes.

At issue is how the Washington Education Association (WEA), the state's largest teachers union, handles the so-called agency fees it collects from school employees who choose not to be union members. Those fees, under state law, are paid to cover collective-bargaining activity that benefits everyone, whether they are union members or not.

But a 1992 law prohibited unions in the state from using that money for political activity without first getting permission from the nonmembers.

The arguments Wednesday turned largely on whose First Amendment rights were at stake. Lawyers for the state, backed by the Bush administration, argued that the most important rights in the case belong to employees, who shouldn't be forced to support causes with which they disagree.

Lawyers for the union say its rights to lobby are being infringed by the Washington restrictions.

The Supreme Court already has said nonmembers must be able to "opt out" of paying for political activity; the Washington law went further, saying unions must get them to "opt in" before pursuing political causes with their money.

Both the state attorney general and several teachers sued the WEA, accusing it of violating the 1992 law. The state's highest court concluded that the law violated the First Amendment to the U.S. Constitution, essentially because it placed undue burdens on the unions' political speech.

The state court agreed that the "opt-in" requirement would create an administrative nightmare for the union in its effort to collect the fees, and that the "opt-out" requirement was a less burdensome alternative that the state should have chosen.

That reasoning clearly fell flat with Chief Justice John Roberts and with justices Antonin Scalia, Anthony Kennedy and Samuel Alito.

Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg also hammered the union's lawyer with questions that reflected serious doubt about his arguments.

Justice Stephen Breyer seemed similarly inclined, but less certain. Justice Clarence Thomas, as is his custom, said nothing during arguments.

Kennedy best summed the justices' response to the union's arguments:

"States have considerable discretion in determining how to protect federal constitutional rights," he said at one point. "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."