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0 comments | January 23, 2007 | 11:05 AM | posted by Ryan

Allison Hayward, an assistant professor of law at George Mason Law School, attended the oral arguements and posted some coments on her blog, Skepticseye.com. Here is an excerpt:

No Fur Flying

The argument in Davenport was engaging and worrisome. I fear that if the Court adopts an election integrity” rationale for the opt-in dues requirement, that could open an entirely new area of regulations applicable to the private internal arrangements of groups. Unions here argue that they are being singled out - but unions in general are singled out in the law since they have the capacity to collect agency fees from nonmembers in the first instance. The Junior League or Chamber of Commerce can’t come by your house and force you to pay dues.

I predict the Washington Supreme Court’s decision will be reversed,….

Justice Alito asked the best question, I think, which was along the lines of “If an opt-in requirement isn’t that burdensome and these people aren’t members anyway, how is it that the First Amendment tolerates anything except an opt-in requirement.”

Solicitor General Clement tried to distinguish “compulsion” as in not being able to object, with needing to assent in order for the unioin (sic) to use your money. He got a little bogged down in what standard a court might look at to determine whether the union’s “consent” procedures were sufficient.

The whole point, of course, is that people are busy and unions may not be completely straightforward about providing a process for oppting-out (sic). One could argue that if there’s such a record, a state could decide to protect nonmember political association interests by enacting something like Washington’s law.

Also, Rick Hasen, law professor at Loyola Law School, author of “The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore,” and editor of Election Law blog posts on the case and says he “would not be surprised to see a 9-0 reversal (though perhaps multiple opinions).”

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