Paul Ryan of the Campaign Legal Center repeats Marty Lederman’s argument, that Davenport is a reaffirmation of the principles in Austin v. Michigan Chamber of Commerce that spells doom for the plaintiffs in Wisconsin Right to Life. CCP Chairman Brad Smith explained yesterday why this interpretation of Davenport is incorrect. But to dispel any lingering doubt, let’s take a look at what Paul Ryan claims and what the Court actually said.
Here’s how Ryan characterizes the Court’s holding:
"[Washington’s] opt-in requirement regarding union political spending, according to the Court, vindicates voters’ ‘concern with the integrity of the election process’ and is ‘limited to the state-created harm that the voters sought to remedy.’
In this way, the Court in Davenport employs reasoning entirely consistent with (and, by implication, reaffirming) its long line of decisions upholding other state and federal law restrictions on corporate and union political fundraising and spending (e.g. Beaumont, McConnell, Austin)-namely, that government-conferred advantages that threaten the integrity of the election process can constitutionally be checked by campaign finance restrictions."
This interpretation of Davenport, and the partial quotes pulled from the case, paint a misleading picture of what the Court actually did. Instead of looking at snippets of the Court’s language, let’s look at those quotes in context:
"As the Supreme Court of Washington recognized, the voters of Washington sought to protect the integrity of the election process . . . which the voters evidently thought was being impaired by the infusion of money extracted from nonmembers of unions without their consent. The restriction on the state-bestowed entitlement was thus limited to the state-created harm that the voters sought to remedy. The voters did not have to enact an across-the-board limitation on the use of nonmembers’ agency fees by public-sector unions in order to vindicate their more narrow concern with the integrity of the election process. We said in R. A. V. that, when totally proscribable speech is at issue, content-based regulation is permissible so long as “there is no realistic possibility that official suppression of ideas is afoot.” We think the same is true when, as here, an extraordinary and totally repealable authorization to coerce payment from government employees is at issue."
[citations omitted]
The Court did not broadly vindicate, as the two out-of-context quotes suggest, a general "concern with the integrity of the election process." It vindicated a specific "narrow" concern: "the infusion of money extracted from nonmembers of unions without their consent." This may not be inconsistent with the Austin line of cases, but it is surely not a "reaffirmation" of them. Austin did not stand for the proposition that separate segregated funds were required to protect shareholders’ money from being spent without their permission. Instead, the Court in Austin was worried about supposed "distortion" in the political marketplace:
[The] state-created advantages [of the corporate form] not only allow corporations to play a dominant role in the Nation’s economy, but also permit them to use "resources amassed in the economic marketplace" to obtain "an unfair advantage in the political marketplace." As the Court explained in MCFL, the political advantage of corporations is unfair because
"[t]he resources in the treasury of a business corporation . . . are not an indication of popular support for the corporation’s political ideas. They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas."
We therefore have recognized that "the compelling governmental interest in preventing corruption support[s] the restriction of the influence of political war chests funneled through the corporate form."
Does that sound anything like Davenport? Of course not. Washington voters weren’t trying to mute the influence of unions when they passed Sec. 760; they were trying to prevent the conversion of property that had been coercively extracted from Washington citizens. Nevertheless, if the plaintiffs in Wisconsin Right to Life prevail, you can expect that CLC and others will call the holding inconsistent with Davenport, which only weeks before "reaffirmed" Austin. Simply repeating the same facile argument, however, won’t make it any less false.
