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Court unlikely to grant First Amendment rights to union political activity

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.

Most oral arguments at the high court end ambiguously, with the justices leaving small hints about how they'll resolve tricky legal dilemmas.

But once in a while, there are arguments where the only lingering question seems to be who'll write an opinion that reaches an obvious conclusion.

Wednesday's arguments, in Davenport v. Washington Education Association and Washington v. Washington Education Association, fell into that category.

At issue is how 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're union members or not.

But a 1992 law, adopted by voters, prohibited unions in the state from using that money for political activity without first getting permission from the non-members.

The hourlong session 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. The state also says the "opt-in" system best protects those rights.

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

The Supreme Court already has said non-members 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 Washington Education Association, accusing them of violating the 1992 law. The state's highest court ultimately 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 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 G. 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.

The justices' response to the union's arguments was best summed by Kennedy.

"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."

Later in the arguments, he accused union lawyer John M. West of disregarding employees' rights altogether.

"You want us to consider this case as if the First Amendment rights of non-union members were not involved," he said. "That's been your whole argument."

West responded by saying he recognized the employees' rights, but that the state infringed the union's rights by going too far to protect non-members.

"The non-members have the absolute right to prevent the use of their funds not only for . . . any kind of political ideological speech . . . with which they disagree simply by sending in a letter," West said.

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(c) 2007, McClatchy-Tribune Information Services.

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