Framing Davenport
on Jan 29, 2007 at 5:17 am
The strangest thing about the oral argument three weeks ago in Davenport v. WEA is just how little common ground there was–not only between the parties (and their amici), but also among the Justices–on just what the case is about, and which constitutional doctrines it implicates. (My apologies for not posting this in a more timely manner–I’ve been tied up with other matters.)
I won’t recap the case in all its particulars here; for an excellent background description, see Lauren Popper Ellis’s summary.
The state statute at issue in the case requires labor unions in Washington to obtain affirmative authorization–an “opt-in”–from nonmembers before using any part of their contributed “agency shop†fees for election-related activities. The state supreme court held that the statute violated unions’ First Amendment rights to make expenditures in ballot-initiative campaigns, and that’s the ruling that the Supreme Court currently has under review.
Most of the top-side amici, including the Solicitor General, have framed the case as if the object of this statute is to provide statutory protection, above and beyond that which is constitutionally required under the Abood line of cases, to nonunion-member feepayers, to ensure that their compelled fees are not used against their wishes for expenditures unrelated to collective bargaining.
But as the opening of the oral argument demonstrated, that’s not really what this statute is all about.
The provision at issue is not part of the state’s labor-law code, and it does not generally provide an opt-in rule for all “nongermane” uses by unions of feepayers’ contributions. (“Nongermane” here means, roughly, not connected to collective bargaining functions.)
The statute in question is section 760 of the Washington Fair Campaign Practices Act, i.e., it is part of the State’s election law code. It was enacted as part of ballot initiative Measure 134, “An Act Relating to the regulation of political contributions and expenditures.” It is, in this respect, a straightforward campaign expenditure limitation, akin in many respects to the federal and state requirements, upheld in cases such as Austin and McConnell, that corporations and unions may make certain election-related expenditures only from separate, segregated PACs, and not from their treasury funds.
Section 760 is distinguishable from those familiar statutes in at least two respects: it imposes its restrictions on expenditures for ballot initiatives (not only candidate elections), and it is a restriction confined to labor unions–it does not restrict corporate campaign expenditures. (More on this below.)
But like those familiar statutes, this one is (i) limited to a restriction on election-related expenditures; and (ii) it was enacted for election-related purposes.
These are the “Findings” included on the face of Initiative 134:
(1) The financial strength of certain individuals or organizations should not permit them to exercise a disproportionate or controlling influence on the election of candidates. (2) Rapidly increasing political campaign costs have led many candidates to raise larger percentages of money from special interests with a specific financial stake in matters before state government. This has caused the public perception that decisions of elected officials are being improperly influenced by monetary contributions. (3) Candidates are raising less money in small contributions from individuals and more money from special interests. This has created the public perception that individuals have an insignificant role to play in the political process.
Thus, it is not surprising that the attorney for the State of Washington began his argument in Davenport by stressing that section 760 “serves the state’s interests specified in the adopted initiative, which were . . . [t]hree interests in election integrity[:] 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.”
This concession that the statute is designed to promote fair elections “surprised” Justice Scalia (his word), and he and Justice Alito spent the first part of the oral argument oddly suggesting that the Supreme Court need not accept the fair-elections rationale as the State’s (the collective voters’) actual objective in enacting section 760 — even though the words of the statute itself, the state supreme court, and the state’s counsel, all agree that that is its aim, and even though section 760 was part of a campaign-finance referendum, and is part of the state election-law code. Justice Scalia interjected that he “would have thought [section 360’s] primary purpose would be to spare individuals the necessity of supporting causes that they don’t support.” And Justice Alito more fundamentally questioned whether the Supreme Court should defer to a state supreme court’s determination of a state statute’s objective, at least when that law was enacted by the voters: “Well, how can the State Supreme Court determine what is the purpose, the intent, of the ballot initiative? A lot of people voted for it. [I]s the State Supreme Court in a position to determine why they voted for it?”
By contrast, Justice Kennedy, although appearing to share Justice Scalia’s initial presumption that the statute was enacted in order to protect the prerogatives of dissenting feepayers, nevertheless reasonably asked: “If the State court says, we’re interested in [certain] 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?”
(In my personal view, the understanding of the state supreme court is less significant than the words of the Findings and Purpose sections of the initiative itself, and the fact that section 760 appears in a broader election-law referendum that otherwise has little or nothing to do with protecting the rights of dissenting public-employee-union feepayers.)
If section 760 is indeed simply a campaign-finance statute — a restriction on election-related expenditures — the question remains what level of First Amendment scrutiny should apply. The latter part of the oral argument was dominated by discussion about whether strict scrutiny applies to section 760 because it is “content-based.” I’m not sure that’s quite the right way to frame the question. It’s simpler than that. This is a restriction on a particular category of expression at the heart of the First Amendment — a limit on election-related expenditures. Regardless of whether that is deemed “content-based,” the caselaw is fairly clear that singling out electioneering for disfavored treatment, as section 760 does, triggers strict scrutiny. The Court has held as much in a series of cases that includes Buckley, Bellotti, Massachusetts Citizens for Life, and the two cases most analogous here, Austin and the BCRA Title II portion of McConnell. See also Burson v. Freeman (applying strict scrutiny to a limitation on electioneering-related speech). (At oral argument, Justice Breyer commented that campaign-finance laws are generally not subject to strict scrutiny. Although that is arguably true about contribution limits, section 760 is an expenditure limit, i.e., a limit on election speech itself, and thus, as in Austin and related cases, strict scrutiny should apply.)
The fact that strict scrutiny applies to statutes singling out election-retated speech for disfvored treatment, however, does not necessarily mean that the state loses, as Burson, Austin and McConnell demonstrate.
And this is where the case gets very interesting. According to Justice Scalia, the statute might survive strict scrutiny (or perhaps he means somehow be exempt from such scrutiny) because “the State has given [the union] 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.”
In other words, perhaps the State can justify this expenditure limitation because the law only affects funds that are in the union’s coffers by virtue of the state’s own coercive power (i.e., by virtue of the Washington law permitting unions to collect agency fees), and the state is, in a sense, merely imposing a limit, a condition, on a benefit that it has itself conferred on the union.
This is an intriguing argument — similar to that in an amicus brief drafted in part by Eugene Volokh — but its proponents on the Court will have to contend with at least three counterarguments:
First, the statute is not limited to funds that the State of Washington itself has permitted unions to collect. The restriction applies equally to private-sector unions, which are not subject to Washington’s agency-fee statute (because they are covered by the preemptive federal labor laws). Thus, section 760 cannot comfortably be described as a condition or limitation on the state’s own conferred “benefit” to unions.
Second, even on the “limitation of benefit” theory, Washington still has not explained why it has singled out election-related expenditures for disfavored treatment. The State does not impose the same opt-in rule for all other forms of union expression outside the bargaining context. This suggests that the statute is designed not to temper the burdens on feepayers of Washington’s compelled-fee regime, but instead to diminish the impact of unions in the electoral arena.
Finally, the State has singled out unions for disfavored treatment in the political process; in particular, it has not extended its opt-in rule to corporations and their shareholders even though, as the Court itself explained in Austin, corporations, too, are able to spend shareholder money only by virtue of “significant state-conferred advantages of the corporate structure.” “Corporations are ‘by far the most prominent example of entities that enjoy legal advantages enhancing their ability to accumulate wealth,'” Austin, 494 U.S. at 655 (quoting MCfL), and yet Washington law does not impose the same limit on corporations that it does on unions. This distinction is suspicious — at least to the extent the state’s interest in regulating the funds that it has “coercively” permitted the union to collect is, as the State contends, “ensuring that contributions and expenditures actually reflect the support of those who provide the funds.” As the Court explained in Austin, “the funds available for a union’s political activities more accurately reflects members’ support for the organization’s political views than does a corporation’s general treasury,” precisely because the objecting employee, unlike the objecting shareholder, has a constitutional right to opt-out, to “decline to contribute to [the disfavored union] activities, while continuing to enjoy the benefits derived from the union’s performance of its duties as the exclusive representative of the bargaining unit on labor-management issues.” Id. at 655-656. Thus, as the Court in Austin explained, a state has less reason for requiring unions to use only “voluntary” contributions than it does with respect to corporations. And yet the State of Washington has implemented exactly the opposite discrimination
[Disclosure: More than a decade ago, I worked at the law firm representing WEA in Davenport.]
