Posted August 14, 2006 by Paul S. Ryan

Turning the First Amendment on Its Head

Compelled association is at the heart of a Washington State case 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 Supreme Court of Washington recently struck down a state law protecting workers’ rights in Washington v. Washington Education Association, 156 Wash. 2d 543, 571 ( Wash. 2006).  The state has petitioned the U.S. Supreme Court to review the state supreme court decision, and the Campaign Legal Center today filed an amicus brief in support of the state’s cert. petition.

Federal law has long prohibited labor unions (and corporations) from using treasury funds to influence federal elections, but allows a union (or corporation) 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 and corporations with a “constitutionally sufficient” opportunity to engage in political speech.  See McConnell, 540 U.S. 93, 203 (2003).

This federal law not only guards against the systemic real or apparent corruption that would result from deployment of union treasury funds in the electoral arena—but also protects the rights of workers who wish not to associate with (i.e., financially support) the political activities of unions.

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 (so-called “agency shop fees” paid to cover the cost of collective bargaining that benefits the nonmember) for political purposes—provided that nonmembers affirmatively authorize the use of their funds for political purposes.  See Wash. Rev. Code § 42.17.760.  This affirmative authorization requirement serves as protection for nonmembers against the use of their agency shop fees for political purposes.

This Washington affirmative authorization (“opt-in”) requirement is at issue in WA v. WEA.  The Supreme Court of Washington ignored the long line of U.S. Supreme Court decisions upholding the more restrictive federal “opt-in” law—including McConnell—and invalidated the less restrictive state “opt-in” law on the ground that the law violates the First Amendment rights of the union.  In so ruling, the Washington Court misconstrued a series of U.S. Supreme Court decisions establishing the minimum rights of dissenting workers regarding a union’s use of their funds for political purposes (i.e., Street, Abood, Hudson, and Ellis)—as instead establishing the maximum rights possessed by workers.  In the Washington Court’s mistaken view, anything beyond an “opt-out” provision exceeds the rights of workers and violates the rights of unions.

Dissenting Washington Supreme Court Justice Sanders put it best, explaining that the majority opinion “turns the First Amendment on its head” and “distorts [the U.S. Supreme Court’s] cases delineating the requirements protecting dissenting union members and nonmembers from having their dues used to support political activities with which they disagree to do the opposite: limit the State’s ability to protect such dissenters.”  WEA, 156 Wash. 2d at 574–75 (Sanders, J., dissenting).

The State of Washington has chosen to confer a statutory right on labor unions both to collect “agency shop fees” from nonmembers and to spend union treasury funds to influence state elections.  The Supreme Court of Washington conflated these statutorily-conferred rights with constitutional rights.  Absent a statutory mechanism for compelling payment of fees by nonmembers, a union has no right, constitutional or otherwise, to compel payment of such fees.  The U.S. Constitution does not require that labor unions be permitted to demand fees from nonmember workers as a condition of employment.  Nor does the U.S. Constitution require that labor unions be permitted to spend treasury funds to influence elections.

The Washington Court’s decision in this case not only undermines longstanding federal law, conflicts with the U.S. Supreme Court decision in McConnell, and misconstrues the Courts decisions in Street, Abood, Hudson, and Ellis—but also undermines the laws of at least fourteen other states that have similarly restricted labor union and corporate candidate-related political activity.  (The appendix to the Campaign Legal Center’s amicus brief contains descriptions of these fourteen state laws.)  Although the Washington Court’s decision is not controlling law in other states, courts in other states will likely rely on the Washington Court’s decision as authority to strike down state law “opt-in” restrictions on labor union political activity.

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.  For these reasons, the Campaign Legal Center supports the State of Washington’s cert. petition in this case and has submitted an amicus brief to the U.S. Supreme Court explaining our views.