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0 comments | November 17, 2006 | 11:13 AM | posted by Mike Reitz

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:

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.

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