Faculty Scholarship 1994 - Present

Ysursa and Davenport: Putting a Dent in Union Access to Member Contributions for Political Activities

In two recent decisions, the United States Supreme Court put a significant dent in the ability of unions to collect contributions for political activities from union members through payroll deductions. In Ysursa v. Pocatello Education Ass?n,1 the United States Supreme Court in a six-to-three decision decided that an Idaho statute prohibiting counties, municipalities, school districts and other local public employers from providing payroll deductions for contributions by public employees to the union?s political action committee did not violate the First Amendment.2 ?Idaho?s law,? the court ruled, ?does not restrict political speech, but rather declines to promote that speech by allowing public employee check-offs for political activities.?3 The state?s decision to prohibit payroll deductions for political contributions, the Court determined, was ?reasonable in light of the State?s interest in avoiding the appearance that carrying out the public?s business is tainted by partisan political activity.?4 In Davenport v. Washington Education Ass?n,5 the U.S. Supreme Court reviewed a First Amendment challenge to a State of Washington statute that required public sector labor unions to receive affirmative authorization from individuals who were not members of the union but on whose behalf the union negotiated a collective bargaining agreement before spending their agency fees for ideological or political purposes unrelated to the union?s collective bargaining responsibilities.6 The Court ruled that the affirmative authorization provisions did not violate the First Amendment.7 This decision permits states to restrict political activities undertaken by public employee unions by making the unions get the nonmembers? affirmative consent before spending mandatory fees for political purposes.8 Ysursa and Davenport supplement a long line of U.S. Supreme Court decisions dealing with the First Amendment implications of using union dues and fees for political purposes contrary to the viewpoints of individuals compelled to pay them. Those eight decisions,9 which were issued during the period 1956 to 1991, and which examined the First Amendment implications of compelling membership in unions or unions? representation of workers in collective bargaining, the union?s use of dues and fees for political or ideological purposes, and protection of the worker?s right not to be associated with or contribute financially to the political speech of the union, provide significant protection to workers who object to the use of their dues and fees for political activities. The purpose of this article is to examine the protections provided by the U.S. Supreme Court to workers who object to the use of their dues and fees for political purposes, and to determine whether Ysursa and Davenport indicate a willingness by the U.S. Supreme Court to alter those protections. Part II of this article will catalogue the major First Amendment protections provided by the eight decisions. Part III will examine the U.S. Supreme Court decision in Ysursa, and concludes that Ysursa does not represent a major departure from the principles established in the eight decisions. Part IV of this article will examine the U.S. Supreme Court decision in Davenport, and concludes Davenport represents a departure from the principles established in the eight decisions, and Part V of this article assesses the implications of Davenport?s departure from the principles established in the eight decisions.