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0 comments | November 09, 2006 | 10:31 AM | posted by Mike Reitz

From the James Madison Center for Free Speech

November 9, 2006

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

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

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