The Federalist Society

Other People's Money...

July 3, 2008

Rob McKenna, Geoffrey Hymans

Davenport v. Washington Educational Association had all the ingredients of a blockbuster: a campaign finance case with First Amendment speech and association claims, important federalism implications, and major players with signifi cant resources (a large labor union and the State of Washington) on each side. Of the thirteen judges who examined the case before it reached the United States Supreme Court, eight thought the statute unconstitutional, while five held the opposite view. In the Washington State Supreme Court, six justices voted to strike down the campaign finance law, which had the approval of the electorate and protected non-union members. Th eir opinion rested heavily on a short phrase drawn from a U.S. Supreme Court precedent: “dissent is not to be presumed.” Yet when the opinion was handed down from the United States Supreme Court, it was a 9-0 decision, with three justices stating that they would not even have reached all the union’s claims. Placing the lower court’s misapplication of the phrase in proper context, the case resulted in a decisive victory for the rights of public employees to dissent and protected the ability of states to experiment with varied worker-protection and campaign fi nance regulations....

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