Teachers vs Union

Teachers are responding to WEA president Charles Hasse's column in the PI.


Monroe teacher Bruce Gallagher writes:

Charles Hasse's Nov. 21 guest column addresses issues surrounding an upcoming U.S. Supreme Court case involving Initiative 134, passed by the people of Washington by a 72 percent majority in 1992.

His claim that "WEA has made scrupulous efforts to fully comply with" I-134 is false. WEA has admitted and has been found guilty of numerous violations of the letter and spirit of the law. In 2000, Gov. Chris Gregoire (then state attorney general) sued the WEA for intentionally ignoring the law. The Thurston County Superior Court imposed a $590,375 fine.

Hasse's opinion and characterization that "it is a vague and poorly written set of rules" apparently gives the WEA the leeway to ignore the law. I-134 states: "A labor organization may not use agency shop fees paid by an individual who is not a member of the organization to make contributions or expenditures to influence an election or to operate a political committee, unless affirmatively authorized by the individual."

What could be clearer? The union cannot use agency fee payers' payments as a carte blanche account to operate political committees without their permission.

Hasse states emphatically: "The WEA, with its national and local affiliates, was the state's top campaign contributor in the 2006 election cycle." For example, he admits the WEA spent "some $900,000 to defeat" the estate tax initiative (I-920).

Hasse admits the WEA functions as an enormous PAC, using agency shop fees to make contributions and expenditures to the state's largest campaign contributor. I-134 says that is illegal without the permission of agency fee payers, but the WEA spins the issue and violates a law it doesn't agree with.

Do you ever wonder where the money comes from to pay the hundreds of thousands of dollars of fines the WEA has incurred? From union dues, of course. I hope the Supreme Court deals appropriately with the WEA's tyrannical behavior.

Cindy Omlin, executive director of the Northwest Professional Educators, writes:

Washington Education Association President Charles Hasse characterizes the rule that the union must ask a teacher's permission before using collective bargaining dues for politics "costly and complex" ("Campaign rules need clarification," Nov. 21 guest column). He hopes the U.S. Supreme Court will uphold our state court's decision, which determined that the rule constituted "too heavy an administrative burden" on the union's free speech.

That is preposterous. With no trouble at all, the WEA tracks down teachers to sign them up as union members. With no trouble at all, the union imposes automatic payroll deduction of dues (whether the teacher has joined or not).

With no trouble at all, WEA stuffs teachers' mailboxes with political ads, at home and at school. The WEA is awash with money from forced union dues and plentiful staff to handle its administrative tasks. It is mind-boggling that the WEA can say with a straight face that getting teachers' permission before extracting money from their paychecks for politics is an insurmountable burden.

It's not complex or costly. No one should have money forced out of their paychecks to pay for the politics of someone else. If you want it, ask for it. Charities, businesses and churches have to do that and so should unions.

James Johnson of Kent writes to the King County Journal:

Teachers need control

As a teacher I was once proud to be part of my "professional organization," the WEA, but no more. It has become an entity that only gives the occasional impression of being involved with our state's teachers and their classrooms. Now the union is primarily interested in following its own interests and not the interests of students, teachers and principals.

The U.S. Supreme Court will soon be hearing a case that will affect a union's right to take my union dues. This union has admitted to violating state campaign law and was additionally found guilty of breaking that law.

This was not by accident. It was done purposefully. The law states that unions cannot use agency fees for politics. The First Amendment guarantees the individual's right to free speech. The First Amendment does not guarantee the union's free speech rights.

In 1992 the voters of Washington state passed a law requiring unions to have permission to use dues for political purposes. The law is still not in force. I look forward to the day when teachers will wrest control of their union. It is time to focus on teachers' and principals' effectiveness with students in their classrooms.

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Washington Education Association president Charles Hasse has a column in the Seattle PI today--the union's most extensive statement about the cases before the Supreme Court.

For 117 years, the Washington Education Association has been a leader in the political arena for public education. In 1915, for example, WEA backed legislation strengthening certification requirements for teachers. Since the 1920s we've led statewide initiative campaigns for school funding.

Leadership on school funding is fine, but what about student performance?


Hasse boasts the union is the state's top political contributor in 2006.

And, as the Seattle P-I reported last month, the WEA, with its national and local affiliates, was the state's top campaign contributor in the 2006 election cycle. Most notably, we contributed some $900,000 to defeat Initiative 920, the estate tax repeal, thereby preserving $100 million a year for education priorities such as K-12 class-size reduction and access to higher education.

Interestingly, despite its admitted political spending, the WEA annually tells the IRS that it spends no money on politics. Perhaps because it can be taxed on that portion?


Hasse says Washington's affirmative-authorization requirements are "so costly and complex that they threaten one's right to join with others in collective participation in the political process."


As amicus American Legislative Exchange Council says in its brief, asking permission probably does cost the union more than simply seizing money from teachers' paychecks. But that's not a cost savings the First Amendment guarantees.


Furthermore, this case is not about the rights of union members to join together. The question is whether the union can use the fees of teachers who have deliberately resigned from union membership and opted out of union political spending. The union has no right to use their fees for politics.

Whatever the high court decides regarding the constitutionality of Washington's campaign regulations, we are confident the record will show that WEA made scrupulous efforts to fully comply with a seriously flawed law.

This is far from accurate. The WEA admitted to multiple violations after an investigation by the Public Disclosure Commission. Thurston County Superior Court Judge Gary Tabor fined the WEA $590,000 for its violations: “I find that the WEA ‘intentionally’ chose not to comply with the clear language of the statute.” And even before the U.S. Supreme Court the WEA admitted to using nonmember fees for political purposes: “[WEA] political advocacy … is financed almost entirely by members’ dues and only to a very small extent by agency fee moneys.” WEA Brief in Opposition, U.S. Supreme Court, August 14, 2006.


Mr. Hasse says the law the WEA admitted to violating is a "vague and poorly written set of rules." Hardly. The law means what it says:

RCW 42.17.760 - A labor organization may not use agency shop fees paid by an individual who is not a member of the organization to make contributions or expenditures to influence an election or to operate a political committee, unless affirmatively authorized by the individual.

Hasse also grossly underestimates the impact of the cases before the U.S. Supreme Court: "Furthermore, the impact of any decision will be limited to Washington state, where it will pertain to less than 4 percent of the 83,000 educators WEA represents."


The highest court of the land would not have taken the cases if they were to only have a parochial effect. A reversal by the Supreme Court will confirm that states are permitted to adopt regulations that go beyond federal minimums. Additionally, a broad ruling will lay down procedures unions must follow before taking nonmembers' dues for politics.


The WEA hopes for a ruling in its favor.

But if instead the justices determine Washington's campaign rules are constitutional, the matter will be sent back for state courts to sort out narrower technical issues. Either way, WEA trusts the judicial process to finally clarify Washington's murky campaign regulations, thereby allowing educators to exercise our fundamental right to collective participation in the political process.

No one contests the union's right to engage in the political process. But it can only do so with funds obtained voluntarily --just like every other political entity.


Also read the counterpoint by National Right to Work president Mark Mix.

EFF's Lynn Harsh, George Will, and attorney Steve O'Ban

EFF's Mike Reitz & George Will

The U.S. Solicitor General filed an amicus brief on behalf of the Federal Election Commission and the Department of Labor in support of petitioners Washington and Davenport.


The brief's statement of interest reads:

INTEREST OF THE UNITED STATES
This case presents a First Amendment challenge to a state law that requires labor unions to obtain the permission of nonmembers before using compelled agency shop fees to make contributions or expenditures to influence elections. The United States has a substantial interest in the validity of such a provision. The Federal Election Commission is charged with enforcing Federal election laws, including laws that generally prohibit unions from using nonmembers’ agency shop fees for political activities. 2 U.S.C. 441b (2000 & Supp. IV 2004). In addition, the Secretary of Labor is responsible for helping “to foster, promote, and develop the welfare of the wage earners of the United States.” 29 U.S.C. 551.

In the summary of argument, the SG writes:

The First Amendment does not prevent a State from establishing an opt-in requirement for use of nonmembers’ agency shop fees for political purposes. The decision below went far astray and interpreted a statute that furthers First Amendment values as violating the Amendment. That decision has far-reaching consequences and should be reversed.


Far from abridging unions’ freedom of speech, Washington’s opt-in requirement leaves unions free to speak on any topic of their choosing, at any time or place, and in any manner. Nor does it restrict the amount of money unions can raise or spend on speech. The requirement certainly does not abridge union members’ freedom of association, because union members remain free to associate and pool their (own) funds, to determine the content of their shared message and the means of communicating it, and to organize their internal affairs as they see fit. It simply requires a union to obtain nonmembers’ affirmative consent before using their coercively collected fees for political purposes.

The Washington Times on the Davenport case.

Eugene Volokh on the amicus brief he co-authored on behalf of the American Legislative Exchange Council.


Workplace Prof Blog discusses the brief here.

Former Bush nominee for Secretary of Labor Linda Chavez has a column on the consolidated union cases.

Little-mentioned in coverage of last week's congressional elections was the role played by labor unions in turning out a big vote for the Democrats. According to the AFL-CIO, one in four voters were union members, even though unions make up only 12 percent of the workforce, and three quarters of them voted Democratic.

Unions remain the staunchest allies of the Democratic Party and its biggest source of "volunteers" -- often union members who are on the union payroll while they engage in voter registration and get-out-the-vote efforts. And while there's nothing wrong with unions collecting voluntary political contributions from their members and donating to the candidates of their choice, much of what unions spend on politics is anything but voluntary. Two cases now before the U.S. Supreme Court could change that, Davenport v. Washington Education Association (WEA) and Washington v. WEA.

The outcome will decide whether individual workers' rights trump those of unions. It could also level the playing field in future elections so that unions will have to do what every other group involved in politics does: raise voluntary contributions to support candidates.

Read the entire column here.

Several amicus briefs in support of petitioners Washington and Davenport have been filed.


United States Solicitor General

States of Colorado, Alabama, Idaho, Ohio, Utah, and Virginia

American Legislative Exchange Council

Association of American Educators

Campaign Legal Center

Cato Institute, Reason Foundation, et. al

Evergreen Freedom Foundation, et. al

Institute for Justice

James Madison Center for Free Speech (for NFIB)

Mackinac Center for Public Policy

Mountain States Legal Foundation

Pacific Legal Foundation

Religious Objectors of Northwest Professional Educators

From The Olympian:

Spokesmen for the National Right to Work Legal Defense Foundation said they filed briefs Thursday in the case, seeking clarification by the high court on its language in a 45-year-old case.

They want the court to find that once an employee objects to being in a union once, an employee's dissent becomes presumed - rather than having the employee file yearly objections.

The Petitioners opening briefs on the merits in Washington and Davenport were filed today.


Press release from National Right to Work Legal Defense Foundation on Davenport.


Press release from the Evergreen Freedom Foundation.

From the James Madison Center for Free Speech

PRESS RELEASE
November 9, 2006


Supreme Court Asked to Reject Effort to
Extend McConnell v. FECto Govern Union "Opt-In"
Requirement


On November 8, the James Madison Center for Free Speech asked the Supreme Court to reject an effort to extend a statement in McConnell v. FEC, 540 U.S. 93 (2003), into a union-regulation context where it has no application. The Madison Center made its argument in an amicus curiae brief that it filed on behalf of the National Federation for Independent Business Legal Foundation in the consolidated cases of Davenport v. Washington Education Association ("WEA") (No. 05-1589) and Washington v. WEA (No. 05-1657). The Campaign Legal Center made the effort to extend McConnell in its own amicus curiae briefs (one before and one after the Court accepted the case for review).


At issue in these consolidated cases is Washington State's requirement that unions obtain consent from nonmembers before using the "nonchargeable" portion of the nonmembers' "agency fees" for political activity. "Agency fees" are amounts equal to union dues that Washington compels non-union-member employees in union shops to pay to the union. Included in the mandatory agency fee is a "nonchargeable" amount, i.e., the amount not used by the union for collective bargaining but for other activity such as political activity. Nonmembers willing to make public their objection to the union's use of nonchargeable amounts may receive a refund. For those nonmembers unwilling to publicly state this objection (which could be for a range or reasons), Washington has implemented the opt-in requirement to assure that nonmembers' rights are not violated by compelled association (with the union) and compelled speech (by having their money fund union speech).


James Bopp, Jr., attorney for the NFIB Legal Fund in drafting this brief, comments: “Where people voluntarily associate with a corporation or union by paying money, that corporation or union is free to use that money for any lawful purpose, which in this case includes political activity. A similar effort to require consent for political activity from person who provide money as voluntary members, shareholders, and donors has been repeatedly rejected in Congress, including as an amendment to the Bipartisan Campaign Reform Act of 2001. It was rejected then and should be now. It is not required by McConnell or the Constitution.”

Entire press release available at www.jamesmadisoncenter.org

Posted on the Campaign Legal Center blog by Paul S. Ryan


The Legal Center this week filed an amicus brief with the U.S. Supreme Court in the consolidated cases Washington v. Wash. Education Assoc. (WEA) and Davenport v. WEA—supporting the state’s defense of a labor union “opt-in” campaign finance statute. Compelled association is at the heart of these consolidated cases that could have national implications. When it comes to protecting the rights of workers not to support the political activities of unions, how much protection is too much?


The State of Washington passed a law requiring labor unions to obtain affirmative authorization from nonmembers, before using such nonmembers’ agency shop fees (i.e., fees nonmembers are required to pay to cover the costs of collective bargaining) to make political contributions and expenditures. A state labor union, the Washington Education Association, challenged the statute on federal constitutional grounds—acknowledging that nonmembers have a constitutional right to “opt-out” of having their funds used for political purposes by requesting a refund, but arguing that the state violated the union’s rights by taking the protection of nonmembers one step further and allowing unions to use nonmembers’ funds for political purposes only if the nonmembers’ “opt-in” by affirmatively authorizing such usage.


Earlier this year, the Washington State Supreme Court struck down the state statute, ruling that the “opt-in” requirement violates the First Amendment rights of unions, union members and even nonmembers. The state appealed the decision to the U.S. Supreme Court, and in the Legal Center filed an amicus brief in support of the state’s cert. petition. A Legal Center blog post on August 14 announced the filing of the Legal Center’s brief in support of the cert. petition, and explained how the Washington State Supreme Court “turned the First Amendment on its head” in striking down the state law. In late September, the U.S. Supreme Court agreed to hear the state’s appeal.


The Legal Center filed an amicus brief on the merits this week, making clear that federal law has long imposed an “opt-in” requirement on labor union and corporation political activity—and that the U.S. Supreme Court has consistently upheld the federal law “opt-in” requirement as constitutional, most recently in McConnell v. FEC.


Federal law prohibits labor unions from using treasury funds to influence federal elections, but allows a union to establish a “separate segregated fund” (a.k.a. “PAC”) into which union members may voluntarily contribute funds (i.e., “opt-in”) to support the union’s political activities. The most recent amendment of this federal law, BCRA’s addition of “electioneering communication” to the general ban, was resoundingly upheld by the Supreme Court in McConnell v. FEC, where the Court stated its “unanimous view” that the federal law separate segregated fund “opt-in” procedure provides unions with a “constitutionally sufficient” opportunity to engage in political speech. McConnell, 540 U.S. 93, 203 (2003).


The State of Washington has taken a different and less restrictive approach to protecting workers’ rights in this context. Washington state law permits unions to use treasury funds to make political contributions and expenditures. Also, whereas federal law permits a union’s PAC to accept contributions only from its members, Washington law allows unions to use the funds of both members and nonmembers for political purposes—provided that nonmembers affirmatively authorize the use of their funds for political purposes. See Wash. Rev. Code § 42.17.760.


Yet, in striking down the Washington law, the Washington court ignored the long line of U.S. Supreme Court decisions upholding the more restrictive federal “opt-in” law and invalidated the less restrictive state “opt-in” law on the ground that the law violates the First Amendment rights of the union, union members and, remarkably, even nonmembers.


The Campaign Legal Center believes strongly in the right of individuals to voluntarily associate with one another for political purposes, but believes just as strongly in the right of individuals to be free from compelled association—and in a state’s right to protect workers from compelled association. The Supreme Court of Washington erred in holding that the Constitution prohibits the State of Washington from protecting workers from compelled association with and funding of union political activities through enforcement of its “opt-in” requirement. Furthermore, the Washington court’s erroneous holding will undoubtedly be relied upon by courts in other states to strike down constitutional state law “opt-in” requirements. (An appendix to the Legal Center’s amicus brief summarizes the “opt-in” laws of fourteen other states.) For these reasons, the Campaign Legal Center in its amicus brief filed this week urges the U.S. Supreme Court to reverse the decision of the Washington Supreme Court.

Ryan Boots had a great post about the case on Edspresso, an education reform website. The post references this column from the president of the Evergreen Freedom Foundation, who explains the Washington paycheck protection lawsuits his organization has helped take to SCOTUS.

Involuntary Servitude
By Goldwater Institute: Benjamin Barr on Nov 07, 06


An upcoming challenge before the US Supreme Court may protect teachers.


As a parent, I’m often subject to my children’s favorite refrain: “You’re not the boss of me!” That reflects the nearly universal sentiment that nobody likes to be told what to do. A pending case before the U.S. Supreme Court will test our commitment to the principle of non- coercion. At issue in Washington Education Association is whether non-union members can be forced to subsidize union politics. The Washington Supreme Court said yes.


Washington requires teachers who are not members of the teacher’s union to pay dues anyway, since they are beneficiaries of collective bargaining agreements and other work. But, in an effort to protect those who disagree with the union, state law requires unions to get permission from non-member teachers before using their dues for political purposes. That simple step protects freedom of speech – in this case, the freedom to be silent or to support views different from the education establishment.


Political spending by the education lobby isn’t chump change. Last year, the National Education Association (NEA) spent some $25 million on lobbying and political activities. But if a teacher disagrees with the NEA’s positions on the issues, why should he be forced to support them? After all, the NEA isn’t the boss of teachers, or at least it shouldn’t be.


Benjamin Barr is a constitutional policy analyst with the Goldwater Institute Center for Constitutional Studies.

From I Thought a Think


7. The Supreme Court hearing the WEA’s case on automatic deductions for political expenses, a case that I’m not entirely sure the WEA should win. If they do lose convincingly, and I wouldn’t want to be arguing a union case in this political environment, it would be a major hit for them and one of the biggest victories that the Evergreen Freedom Foundation has ever had.