At one point during oral arguments, Justice Ginsburg asked WEA attorney John West, “Is this all hypothetical, Mr. West, or is there any empirical evidence about what the people who are non-union members, if they had their druthers, would they say not a penny more goes into the union till than we are forced to put there? Is there any empirical evidence that divides up the universe of people who don't, deliberately don't join unions?
Mr. West responded, “No. Justice Ginsburg, there's a lot of speculation on both sides. I don't think there's any empirical evidence, but there is plenty of reason to think that there are many reasons that people choose not to join the union, whether from a free rider motivation, whether from just not being a joiner, any variety of reasons. Some of them may be….” At which point, Chief Justice Roberts interrupted. Oral Transcripts, page 42-43.
Upon hearing Justice Ginsburg’s question, I wondered whether she or Mr. West had taken note of page 14 of EFF’s amicus brief where we give evidence that, when given a choice, teachers generally choose not to contribute to union PAC’s. On page 14, Justice Ginsburg can read the following:
"The enactment of the Fair Campaign Practices Act forced the WEA to stop requiring a member donation to the WEA-PAC unless the union first received affirmative consent to the donation from the member. Prior to the enactment of the law, approximately 82% of the WEA membership donated to the WEA-PAC and only 18% affirmatively opted out. Opting out required an affirmative action by the union member, causing that member to stand out from his or her colleagues, potentially bringing unwanted attention and pressures to the member. However, after removing the pressures imposed by the opt-out system, member participation in the WEA-PAC dropped to between 11% and 18%."
"Such results are not unique to Washington. After enacting similar laws, member participation in PACs in Utah fell from 68% to 7%,31 and participation in Idaho fell by 75%.32 When informed of their right to opt-out of union political contributions, the number of members opting out in Colorado increased four-fold."
"Thus even those who elected to become union members, who can reasonably be presumed to share many of the WEA s political views (at least more so than those who opted not to join), when given a choice free of the coercion and exposure endemic to the opt-out system, chose not to support the political activities of the WEA."
While this evidence is not directly on point to her question, Justice Ginsburg can clearly see that teachers, when given a choice, do not contribute to union PAC's. She should also consider that, even in states where teachers are not forced to pay dues (Utah and Idaho are Right to Work states) and are thus 100 percent voluntary members, teachers overwhelmingly choose to opt out of union political spending.
Justice Ginsburg can interpret the massive trend to opt out of union PAC contributions as one of two things: Either 1) teachers, by and large, do not support union politics, or 2) the majority of teachers say, as Justice Ginsburg put it, "[N]ot a penny more goes into the union till than we are forced to put there."
However, one interpretation is more likely than the other. Given the fact that 80 to 95 percent of teachers choose to opt out of PAC spending, but only a small percentage choose to resign from their union and become agency fee payers, we can assume that the "first" option is the case; that teachers, by and large, do not support union politics.
CAVEAT: This analysis does not take into effect the efforts of some unions to bully teachers into remaining full dues-paying members instead of becoming agency fee payers. Teachers report that some union officials use confrontational techniques and play on fears of legal liability by threatening to remove them from legal insurance policies provided by the union. These activities, in part, prevent some teachers from opting out as agency fee payers.