[PAUL D.] CLEMENT [for the state of Washington]: And I think it's instructive if you look in the joint appendix, I think it's at page joint appendix 45, you have the form that's available to union members to opt in to PAC contributions, and have payroll deductions made for the PAC contributions. The union certainly makes it much easier to opt in to PAC contributions than it makes it to opt out vis a vis the Hudson packet....I agree with the AP assessment that the Court sounds favorable to the state's position, but only on the issue of whether the WEA could make the Hudson process easier, and that the law might not be too burdensome. Nevertheless, they could rule that Washington's campaign finance law, if allowed to stand, as the WEA argues, represents an unfair form of discrimination against nonmembers who support the WEA's political efforts, and that "affirmative authorization" is satisfied by the Hudson opt-out process. (At one point, Justice Alito says "opt-in" before catching himself--the issue is linguistically confusing to everyone who confronts it.)
I could suggest where maybe the Washington Supreme Court went awry in its analysis, it focused almost exclusively on the three stated purposes that were included in the text of Initiative 134, which were all focused more on electoral integrity.
That's not surprising, because there were 36 sections in Initiative 134 that dealt with the whole manner of different campaign finance initiatives. Before this initiative was passed by the voters of Washington there weren't any campaign contribution limits in the State of Washington.
So this initiative is doing a lot more work, just besides Section 760. I think 760 isn't unrelated to those broader purposes because it does make sure that the contributions of the workers here are voluntary, and I think that is certainly something that's very similar to what Federal law accomplishes through the separate segregated fund requirements....
MR. WEST [for the WEA]: Thank you, Mr. Chief -- Mr. Chief Justice, and may it please the Court:
Our submission that Section 760 unconstitutionally burdens the union's First Amendment right to engage in political advocacy rests on three points. One, the statute before the Court is a campaign finance law that was enacted for the purpose of protecting the public's interest in the integrity of the electoral process. Two, it is a content-based restriction on speech, which cannot be justified by the State's authority to limit agency fees in the first place. Three, the statute does not serve a compelling State interest both because it is overbroad in restricting, restricting speech on ballot propositions and because it's underinclusive in regulating the campaign speech of unions but not of other comparably situated entities....
MR. MCKENNA [for the state of Washington]: Yes. Your Honor, the Chief Justice is correct, of course. What I thought the question was about was the question of whether or not all, all non-germane expenses must be opt-in, must be provided. That's all I meant. You're absolutely correct. Of course, in your decisions opt-out is satisfactory, and we're not saying that opt-out is not satisfactory here as far as the State's position is concerned. But what we are saying is that the State has the right to impose this additional requirement of affirmative authorization....
MR. MCKENNA: We don't believe it is content-based, Your Honor. As I said, we don't believe it is, because it's any election of any kind.
JUSTICE GINSBURG: Well, the content means a category of speech as opposed to what is the political position you're taking.
MR. MCKENNA: Yes, that is it's only in regard to influencing elections or operating a political committee, which is a second.
JUSTICE GINSBURG: But I thought that that was content. You could do it, say, in the press, but you couldn't do it over the air.
JUSTICE SCALIA: That's my understanding, too. I think you got to get out of it some other way. I mean, you've got to say it's content but it doesn't apply when it's the government contributing money or it doesn't apply when you're applying it to money that's being coerced by the government.
MR. MCKENNA: Yes, Your Honor.
JUSTICE BREYER: If that's yes, then the category here is election speech. If you're going to call a statute that treats election speech especially, then all of campaign finance regulation would fall in that category. And if you're going to use that distinction to say strict scrutiny applies, then strict scrutiny would apply to all campaign finance regulation. And courts never to my knowledge apply strict scrutiny to campaign finance regulation because there are speech interests on both sides of the equation.
MR. MCKENNA: Yes, Your Honor. Of course, we believe that -
JUSTICE BREYER: I'm glad you said yes to me because that implies a no to the last question.
John West, advocating for the WEA, comes off as a bit flustered in some of his arguments.
I'll write more after I have time to fully digest the (68-page) hearing.
Update: Dahlia Lithwick's summary is well worth your time, if you want the quick rundown.
Update update: Although I will say I'm not terribly fond of the analogy to date rape.