Legislative Privilege, Free Speech

Josh Chafetz, Oxford Ph.D., Yale lawyer, and former blogger at oxblog.blogspot.com, has written what looks to be the definitive book on legislative privilege, Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions. His publisher sent me a copy, and I look forward to paging through–especially the parts about the 17th-century English House of Commons, given my recent research for my forthcoming book on the Glorious Revolution of 1688–89, Our First Revolution: The Remarkable British Upheaval That Inspired America's Founding Fathers. Amazon still has the word uprising in the subtitle; I've asked Crown Forum to use upheaval instead.

Free Speech

On Wednesday, the Supreme Court heard oral arguments in Washington v. Washington Education Association. This is an appeal of the judgment by the Washington Supreme Court that the state National Education Association's First Amendment rights were violated by a 1992 law adopted by the voters in referendum. The law requires that the union get opt-in approval from nonmember teachers before deducting from their paychecks the portion of fees used for political purposes.

The WEA has defied this law ever since, and in 2000 teachers backed by the Evergreen Freedom Foundation sued. Here's the plaintiffs' website. The Washington Supreme Court in a 6-to-3 decision found that the union's free speech rights were violated by this law. That decision seems preposterous to me, explainable only by assuming it was driven by partisan politics: Let's not shut down the flow of money to the Democratic Party, even a little bit. Evidently it seemed preposterous to almost all the U.S. Supreme Court justices, according to bloggers Eugene Volokh, Rick Hasen, and Paul Secunda: Follow the links in this Volokh Conspiracy post. The only two justices who seemed to be sympathetic to the union were Stephen Breyer and Ruth Bader Ginsburg, both appointed by Bill Clinton. Justices John Paul Stevens and David Souter, both appointed by Republican presidents, seemed far less sympathetic.

I think this case is of considerable importance in the operation of our political system. We have two underlying forces that will over the years tend to increase government's share of the economy. One is the force of federal entitlements–Social Security, Medicare, Medicaid–that will tend to grow faster than the economy. The other, operating at the state and local level, is the power of public employee unions. Their goals are to increase public employee compensation and reduce accountability. Their weapon is the taxpayers' money, the sole source of union dues. In most state capitals, public employee unions, especially teacher unions, are among the most powerful lobbies. Democrats tend to do their bidding; many Republicans work to stay on their good side. There are few if any countervailing institutional forces of any great strength.

Over the past generation the pay of teachers and public employees generally has tended to increase more than the economy, without much in the way of improved results. A reversal of the Washington Supreme Court in this case would stop the flow of only a relatively small stream of taxpayer money to the WEA, but it would be one solid step in the right direction.