U.S. Supreme Court Decision Likely to Prevent Challenge to Michigan’s “Paycheck Protection” Law, Mackinac Center legal analyst says

MIDLAND — Based on a ruling issued today by a unanimous U.S. Supreme Court, Michigan’s "paycheck protection" law appears to be on solid constitutional ground, said Patrick J. Wright, senior legal analyst for the Mackinac Center for Public Policy. Deciding two cases out of Washington, the court held that states may require public sector unions to obtain nonmembers’ affirmative consent before the union may spend any of nonmember’s agency fee on political purposes. The court in its decision adopted an argument made by the Mackinac Center in the amicus brief it filed in both cases.

"Clearly the Supreme Court had to overrule the Washington State Supreme Court’s holding that the unions’ right to spend nonmembers’ money superseded the nonmembers’ First Amendment right not to have their money spent to support political positions they disagree with," said Wright, author the Center’s "friend of the court" brief in Davenport v. Washington Education Association and Washington v. Washington Education Association. "Michigan workers will very likely maintain their right as a result of this ruling."

The justices reasoned that since states have the power to prevent public sector unions from charging agency fees to nonmembers altogether, states clearly have the power to place a condition on the unions’ use of such fees, an argument advanced in Wright’s brief. Although not mentioned by today’s court opinion, prior case law also clearly indicates that states need not give public sector unions the power to engage in collective bargaining at all.

Wright noted that Michigan’s "paycheck protection" law, MCL 169.255(6), also requires that a union obtain "affirmative consent" before placing members and nonmembers’ dues and fees in a political fund. Today’s court ruling likely means that the Michigan law is constitutional, he said.

But, Wright added, the Supreme Court could have done much more to protect nonmembers.

"The Supreme Court was presented with the compelling argument that to protect nonmember’s First Amendment rights, public sector unions should never be able to extract fees from nonmembers unless it is for activities related to collective bargaining," said Wright, who attended oral arguments in these cases in January. "The court did not accept, reject or discuss this argument. By accepting this argument, the court would have prevented any future union political misuse of nonmembers’ fees. By failing to do so, the court left the issue to be determined politically on a state-by-state basis."

The Mackinac Center’s brief is available at www.mackinac.org/8065.

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