Posted November 17, 2006 by Paul S. Ryan

The WEA Cases “Are Not Campaign Finance Cases”?

So argues Mr. James Bopp in an amicus brief filed with the U.S. Supreme Court last week in the consolidated cases Wash. v. Wash. Education Assoc. (WEA) and Davenport v. WEA.  In an unusual move, Mr. Bopp’s brief is dedicated to attacking amicus briefs filed by the Campaign Legal Center in these cases, though urging the same outcome—that the Supreme Court uphold the challenged Washington state law.  However, an excellent amicus brief filed by the FEC and Department of Justice, on behalf of the United States, agrees with the Legal Center that these are, indeed, campaign finance cases.

The Legal Center has now filed two amicus briefs in these cases—one in support of the state’s cert. petition and one on the merits supporting the state—as detailed in blog posts here and here.  In short, the cases involve a constitutional challenge to a Washington state “opt-in” law requiring labor unions to obtain affirmative authorization from nonmembers, before using such nonmembers’ agency shop fees to make political contributions and expenditures.  The state supreme court ruled that the law violates the First Amendment rights of the Washington Education Association, a state labor union.

While contemplating whether the Campaign Legal Center should get involved in this case as an amicus, it occurred to me that the long-standing federal restrictions on labor union and corporate political activity are also, in fact, “opt-in” laws.  Under federal law, a union can only make political contributions and expenditures to the extent that members of the union “opt-in” to supporting such activities by contributing to the union’s PAC—because federal law prohibits unions and corporations from using treasury funds to make political contributions and expenditures.

As such, the state supreme court decision striking down Washington’s “opt-in” law is inconsistent with a long line of U.S. Supreme Court decisions upholding the federal law union and corporate contribution/expenditure ban and accompanying “opt-in” requirement—most recently, the Court’s decisions in Beaumont and McConnell.

We made this argument in our amicus brief in support of the state’s cert. petition and, apparently, it caught Mr. Bopp’s attention.  The Court granted cert. in the case and Mr. Bopp filed an amicus brief on the merits mischaracterizing and refuting our argument, on behalf of his client National Federation of Independent Business Legal Fund.  That Mr. Bopp filed a brief disagreeing with the Campaign Legal Center would come as a surprise to none.  That Mr. Bopp would file such a brief in a case where he supports the same party and general outcome as the Legal Center, however, is noteworthy.

To put it bluntly, Mr. Bopp’s argument makes no sense.  The first argument heading in Mr. Bopp’s brief states: “The Present Cases Are Not Campaign Finance Cases.”  Mr Bopp explains in the first sentence of this argument: “These cases are not about campaign finance because Washington has chosen not to prohibit corporate and political activity [sic].”  Bopp brief at 3.  Presumably, Mr. Bopp intended to write “corporate and union political activity.”  Yet the statute at issue in the case explicitly prohibits unions from using “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.”  Wash. Rev. Code § 42.17.760 (emphasis added).

Further, Mr. Bopp blatantly mischaracterizes the Legal Center’s brief, when he states that the Legal Center “devoted Part II of its brief to urging this Court to grant certiorari to the argument that this Court’s decision in McConnell . . . mandates an opt-in requirement.”  Bopp brief at 3 (emphasis added).  Our brief in fact does not argue that McConnell mandates states to establish “opt-in” requirements but, instead, argues that McConnell makes clear that states may, consistent with the Constitution, establish “opt-in” requirements.

Mr. Bopp goes on later in his brief to argue: “The Campaign Legal Center did not state why it has attempted to frame these cases as campaign finance cases.  Given the Center’s ideological purpose, it is likely promoting an agenda that no corporation or union should be able to use money properly in its general fund for political activity (where not prohibited) unless it obtains express permission from any members, donors, or shareholders.  . . .  This agenda should be rejected.”  Bopp brief at 6–7.

Talk about promoting an agenda—a Supreme Court amicus brief dedicated to attacking and mischaracterizing another amicus who supports the same party in the case.  Now that’s an agenda!

Nevertheless, the Legal Center is not alone in its recognition of the campaign finance elements in these cases.  The FEC, along with the Justice Department, filed an excellent amicus brief in the cases on behalf of the United States government, sharing the Legal Center’s perspective that this case is, indeed, a campaign finance case.  Although not involved at the cert. petition phase, the FEC correctly recognized that it has “a substantial interest in the validity” of the challenged state law provision and decided to file a brief at the merits stage.  U.S. brief at 1.  Like the Legal Center, the FEC argues that the constitutionality of Washington’s “opt-in” requirement “is underscored by [the Supreme] Court’s decisions upholding campaign finance laws that impose more burdensome requirements on unions.  . . .  Because the constitutionality of those federal restrictions is well-settled, it follows a fortiori that Washington’s more modest affirmative-authorization requirement is constitutional as well.”  U.S. brief at 8-9 (emphasis in original).

Although the FEC and Legal Center briefs make clear why Mr. Bopp’s argument is nonsensical—we’re impressed that he went to such great lengths to promote his anti-campaign finance reform agenda.  Mr. Bopp definitely deserves a gold star for effort, even if his brief fails to comprehend the true meaning of the case!