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0 comments | November 09, 2006 | 10:10 AM | posted by Kristen

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.

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