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U.S. Supreme Court

D av en p o rt v. Wa shington Educ ati on As soc i atio n

A Publication of the Evergreen Freedom Foundation


I N TR OD UCT ION Dear Friends,

W

hen the Evergreen Freedom Foundation filed a campaign finance complaint against the Washington Education Association in 2000, we had no idea that our case would go to the U.S. Supreme Court. Yet here we are. The U.S. Supreme Court’s unanimous ruling in Davenport v. Washington Education Association is an important victory for the First Amendment rights of employees. States can constitutionally require unions to get permission before spending mandatory dues on political activity. Union statutory “entitlements” do not legally trump an individual worker’s political choice. The ruling paves the way for states to eliminate coercive union practices. Beyond the immediate legal impact of this ruling, we saw the Davenport case as an opportunity to educate the public about the coercive practices labor unions use to shield themselves from market forces. We are elated that the message of protecting teachers’ First Amendment rights dominated news coverage of the case, with hundreds of national news stories. Many of these news stories and editorials are featured in the pages of this booklet. Over 125 editorials and columns have been written in support of this case. Only one column supported the union’s position, and it was written by the union president himself.

By the way, the “we” includes a broad coalition of national and statebased organizations. We are proud to have worked with lead plaintiff Gary Davenport, the Attorney General of Washington, the U.S. Solicitor General, National Right to Work Foundation attorneys, our own attorney Steven T. O’Ban, and others who offered strategic insight, wrote persuasive amicus briefs, and rallied support and attention to the cause. Many teachers across the nation risked their professional credibility and exposed themselves to union intimidation to secure their rights. Their stories encourage us to continue the fight. Our success is their success. Sincerely,

Michael Reitz Director of Labor Policy


Contents Pictures from oral arguments

4

Editorials

7

News stories

71

Full page ads

125

Nothing in this publication should be construed as an attempt to aid or hinder the passage of any legislation or ballot measure


Picture from Oral Argument


Editorials


Editorials

its disrespect for the will of the people and repeatedly violated both the spirit and the letter of the law.

Big Labor Doesn’t Know Meaning of ‘No’ by Booker T. Stallworth

Human Events

“I love seduction, but I hate rape.” I heard those words for the first time during my freshman year at college. George Mason University professor Walter Williams was giving a lecture on the role of government and the proper use of its monopoly on force in a free society. Government isn’t alone in its ability to abuse its power. Labor unions have also failed to learn the lesson that “no” means “no.” One of the most egregious examples of this is headed for the U.S. Supreme Court. For the last five years, Washington state, its National Education Association-affiliated teachers’ union, and local teachers have been embroiled in a conflict over whether the union has a right to use non-member teachers’ dues in whatever way it chooses. “Non-members” are teachers that have resigned from union membership, but are still forced to pay collective bargaining fees. In such a situation, U.S. Supreme Court case law lays out First Amendment protections to ensure employees are not forced to support political activity against their will. Washington’s law, which was approve by 72 percent of the state’s voters, established the additional requirement that nonmembers must “affirmatively authorize” any use of their dues for union political activity. The union may not use a non-member teacher’s dues for political purposes without his or her permission, period. The Washington Education Association (WEA) cried foul and claimed it has no “fiduciary duty” to the teachers it represents. The union boldly flaunted

Angered by the union’s disregard for their rights, several concerned teachers went to the Evergreen Freedom Foundation (EFF) and the state attorney general for help. The Democratic Attorney General sued the WEA in 2001 and won a $590,000 judgment for its admitted violations. EFF assisted the teachers in bring a class action law suit against the WEA to recover their improperly used dues. In a blatant disregard for the will of the people, the Washington state Supreme Court ultimately declared the campaign finance law unconstitutional. As Washington Supreme Court Justice Richard Sanders noted in his dissent, this horrendous decision “turns the First Amendment on its head” and endangers the rights of workers all across the country. This case, appealed to the U.S. Supreme Court by both the state and the teachers, has several far-reaching, national implications. Among them: 1. The state Supreme Court’s decision placed the statutory rights of unions ahead of the constitutional rights of workers. The Court’s majority claimed the requirement to obtain teachers’ permission placed “too heavy an administrative burden” on unions—and this trumped the free speech rights of teachers. This perverts the First Amendment, changing it from a shield to protect people from coercion into a sword unions can wield to their own advantage. 2. By striking the law down, the Court provided an example of judicial activism at its worst, usurping the role of the legislature. The legislature gives the union the ability to collect dues and therefore the legislative branch—which in Washington state includes the people through their power of initiative—has the authority to regulate the collection of dues. Even in “right-to-work” states, where workers have a choice whether or not to join the union, the question of whether or not their dues should be spent on politics is a debate that should happen in the legislature, not the courts. 3. The Washington Court gave a clear signal to unions all across the country that it is open season on using dues for political purposes. When


Because of these national implications—affecting more than 17 million union-represented workers across the country—the Supreme Court must now address this issue. Washington state is far from alone. All across the country unions wield enormous political clout by raiding the paychecks of the workers they claim to represent. In the 2004 presidential election cycle, organized labor raised a reported $199.5 million for their political organizations. The AFL-CIO said it spent $44 million on voter mobilization efforts; the Service Employees International Union spent $65 million. The National Education Association spent nearly $25 million on political activities and lobbying in 2005. This political power is rooted in the union’s ability to force teachers to pay dues, or have them fired. Unions have a secure grasp on teachers’ paychecks through forced payroll deductions. Often, the union uses forced political dues to elect politicians who then implement pro-labor laws and policies, including mandatory union representation. This in turn leads to even more members and nonmembers for unions to exploit. Worst of all, unions then spend that money in a manner that is unaccountable to their members, voters, and taxpayers. Often, they use the money for political activities that the teachers may not support. NEA members are a politically diverse group, but the union’s spending on political and social causes do not reflect that diversity. In 2004, NEA president Reg Weaver said the nation’s teachers are evenly divided between political parties—one-third Democrat, one-third Republican, and one-third independent. Yet that same year, the NEA gave 92 percent of its political action committee contributions to Democrats. The discrepancy continues to this day where, halfway through the 2006 election season,

87 percent of NEA PAC contributions have gone to Democrats. The NEA’s spending on social causes does not reflect its diverse makeup either. A Department of Labor report filed by the NEA showed it gave almost 20 percent of its entire budget in contributions, gifts and grants to organizations that often lean left including: • Human Rights Campaign ($15,000) • National Women’s Law Center ($5,000) • Jesse Jackson’s Rainbow/PUSH Coalition ($5,000) • Gay Lesbian & Straight Education Network ($5,000) • Democratic Leadership Council ($25,000) • Congressional Black Caucus Foundation ($40,000) • Congressional Hispanic Caucus Institute ($35,000) • People for the American Way ($51,000) That is not political seduction of any sort; it is ideological rape. The union has as much right to participate in politics as it wants, but not at the expense of workers’ First Amendment rights. This principle is of such national importance that, this week, a coalition of non-partisan, public policy research organizations from 12 states, along with the country’s largest, voluntary association of state legislators, filed an amicus brief with the U.S. Supreme Court, encouraging the Court to accept review of the Washington vs. Washington Education Association case. If the U.S. Supreme Court upholds the Washington decision, unions will be unleashed to spend their workers’ dues without accountability. It will embolden unions to challenge the will of the people of their state and to challenge the right of their legislature to establish laws. If the Supreme Court overturns the decision, teachers and other union workers will have their free speech rights restored, and unions learn, once and for all, a lesson every first-grader learns: You must ask permission before taking something that does not belong to you. For the latest information on this case, please visit www.teachers-vs-union.org.

Human Events

given a choice, union members overwhelmingly refuse to support the union’s political activity. When Washington’s law went into effect, voluntary political contributions by teachers dropped by 85 percent. In Utah, where union membership is voluntary, a similar law resulted in a 90 percent drop-off in teacher contributions. The union knows this and therefore will fight laws that strengthen worker protections.


Editorials

(WEA) for willful violations of the law and won a $590,000 judgment against the union.

Reading, writing and rip-off

The Washington Times

by Bob Williams Published August 20, 2006 “Gimme the money and shut up.” That is what teachers in Washington State have been told by their union for the last decade. Now, these teachers, who refuse to cave in and pay are taking their case to the U.S. Supreme Court. All across the country unions wield enormous political clout by raiding the paychecks of the workers they claim to represent. In the 2004 presidential election cycle, organized labor raised a reported $199.5 million for their own political organizations. The AFL-CIO said it spent $44 million on voter mobilization; the Service Employees International Union spent $65 million. The National Education Association spent nearly $25 million on political activities and lobbying in 2005. In Washington state, for example, teachers have been embroiled in a conflict with the NEAaffiliated teacher’s union over whether the union has a right to use nonmember teachers’ dues however it chooses. (Nonmember teachers have resigned from the union but are forced to pay collective bargaining fees.) No one should be forced to pay for political causes with which they disagree. And according to Washington state campaign finance laws, the union may not use a nonmember teacher’s dues for political purposes without his or her permission. In 2001, the state’s Democratic attorney general sued the Washington Education Association

In a blatant disregard for free speech, the Washington State Supreme Court ultimately declared the campaign finance law unconstitutional. As Justice Richard Sanders noted in his dissent, this horrendous decision “turns the First Amendment on its head” and endangers the rights of workers all across the country. The decision perverts the right to free speech, changing it from a shield protecting people from coercion into a sword unions can wield to their own advantage. When given a choice, union members overwhelmingly refuse to support the union’s political activity. When Washington’s law went into effect, voluntary political contributions by teachers dropped 85 percent. In Utah, where union membership is voluntary, a similar law resulted in a 90 percent dropoff in teacher contributions. The union knows this and will fight laws that strengthen worker protections. Giving contributions to candidates and supporting political causes would be fine if authorized by rank-and-file employees. But when it comes to money in politics, unions operate a vicious merry-go-round of coercion. Their forced political dues elect politicians who then put in place pro-labor laws and policies, including mandatory union representation. This in turn leads to even more members for unions to exploit. Worst of all, unions don’t have to account for these expenditures to their members, voters and taxpayers. Because of these national implications -affecting more than 17 million union-represented workers across the country -- the Supreme Court must now address this issue. If the U.S. Supreme Court upholds the Washington decision, unions will be unleashed to spend workers’ dues without accountability. It will embolden unions to challenge the will of the people of their state and to


If the Supreme Court overturns the decision, free-speech rights will be restored to teachers and other workers, and unions will know, once and for all, their ability to raise money does not trump the constitutional rights of individual citizens. Teachers, or any other workers represented by

a union, should not be forced to subsidize politics and causes they do not agree with. Reform is long past due and we urge the Supreme Court to hear this case and deliver justice. Bob Williams is president of the Evergreen Freedom Foundation, a Washington state-based policy institute, which filed the initial complaint in the case of Washington vs WEA (Washington Education Association).

The Washington Times

challenge the right of their legislature to establish laws.


Editorials

...Whose Dues?

Pittsburgh Tribune-Review Editorial

Monday, September 4, 2006 Coming soon to the U.S. Supreme Court -- a union’s right to coerce political speech. At issue is a Washington Supreme Court ruling allowing that state’s teachers union to use nonmember dues for political activity without getting teachers’ permission. Never mind Washington state law expressly prohibits this. The Washington Education Association argued it had no “fiduciary duty” to the teachers it represents. And the court’s majority in a fit of judicial activism ruled that obtaining teachers’ permission posed “too heavy an administrative burden” on the union. Not only does this pernicious decision turn the First Amendment on its ear, it portends far wider ramifications for 17 million dues-paying union members nationwide. Unions would have greater freedom to spend dues without accountability in pursuit of political agendas, which notoriously skew to the left. The message: Pay your dues and shut up. The National Education Association, for example, says its membership is equally divided among Democrats, Republicans and independents. But in 2004 it allocated 92 of its political action committee contributions to Democrats. And this, when union members - when given the choice - overwhelming object to paying for their union’s politics. The U.S. Supreme Court should hear the appeal of Washington’s absurd dues policy. And in quick order, right a terrible wrong.


By Dimitri Vassilaros Friday, September 15, 2006 As court decision after court decision limiting free speech erodes the First Amendment into a fine powder, could there come a day when Americans could be forced -- forced, mind you -- to subsidize political activity they opposed? And if that day came, would anyone care? There’s no need for a crystal ball -- just 20/20 hindsight. And no, the monstrous misuse of money is not limited to court decisions upholding state and local public financing of campaigns -- like when money from pro-choice taxpayers funding campaigns of pro-life candidates makes a mockery of free will, free speech and, thereby, freedom. The U.S. Supreme Court can retard the erosion by overturning a Washington state Supreme Court decision -- Washington v. Washington Education Association. The state court effectively allows teachers unions to continue spending money for political activities even when nonmembers represented by the union do not authorize the expenditure. If Washington is overturned, other states just might be emboldened to pass similar laws protecting the individual, according to Booker Stallworth, communications director of the Labor & Policy Institute at the Evergreen Freedom Foundation. The EFF, a private, nonprofit, public-policy research organization in Washington state (that doesn’t accept public funds), filed a friend of the court brief. As did the Commonwealth Foundation, a public policy think tank in Pennsylvania. “The U.S. Supreme Court has said, consistently, that a union cannot force someone to pay for politics without his permission,” Mr. Stallworth said. So why the court case? “Unions all over the country are ignoring the law,” he said. A U.S. Supreme Court ruling in Teachers

v. Hudson in 1986 held that Chicago public school teachers who did not want to be members of the union only had to pay the portion of union dues directly covering collective bargaining costs. The court held that “The fact that nonunion employees’ rights are protected by the First Amendment requires that the procedure be carefully tailored to minimize an agency shop’s infringement on those rights. And the nonunion employee must have a fair opportunity to identify the impact on those rights and to assert a meritorious First Amendment claim.” “Minimize” as in the Paycheck Protection measure, part of a ballot initiative approved by 73 percent of the voters in Washington, Stallworth said. The law mandates that a nonmember employee must “affirmatively authorize” the teachers union doing the collective bargaining on his behalf before that person’s money can be used for any political activity including lobbying for or against education bills. The teachers union claimed it is not violating Hudson when it automatically assumes that nonmembers who do not object approve the expenditures. “The union claimed it was too much of a burden to actually follow the law,” Stallworth said. Picture everyone who does not respond to an AARP junkmail solicitation for life insurance automatically being billed as if they had ordered policies. The state court rationalized that getting members’ authorization was too much of an administrative burden for the union, Mr. Stallworth said. “No one should be forced to pay for the politics of someone else,” Mr. Stallworth said.

Pittsburgh Tribune-Review

Forced speech atrocity


Editorials

Courting consent

The Seattle Times

September 28, 2006 The U.S. Supreme Court has taken on a case from this state involving mandatory union dues and political contributions. The case involves an important principle: individual consent. Under labor law in this state, a worker may be required to accept a union as his bargaining agent and pay dues for representation. The union may do other things, including backing political candidates, but the worker is not required to pay for that. He may opt out of the union, giving up his right to vote in it, and pay only for representation. This case, State of Washington vs. Washington Education Association, is about the union collecting political contributions from those who opted out. Both sides agree the union needs their consent; the argument is over what counts. Is it enough if the union tells a worker it is taking his money unless he says no? Or does consent require that he say yes? The first is called “optout,” because he is assumed to be in the group unless he goes out. The second is called “opt-in,” because he is assumed to be out of the group unless he comes in. In a union shop, the individuals start as members of a group. They are in unless they opt out. But this case is about people who already did opt out. Common sense says they are out unless they opt in. And that means the court should side with the state.


spending union dues for political purposes and refund money to those who did not agree with the political activity the union proposed. The three dissenting justices on the state’s high court said the majority opinion ``turned the First Amendment on its head.’’

Supreme Court should back rights of individuals

Last week the nation’s highest court agreed to hear an appeal of this case, which focuses on the teachers union.

In a Washington state case, the court must decide whether unions need individual members to say `yes’ before collecting fees for political causes. We believe unions should.

At issue is whether the union needs each teacher to say ``yes’’ before it can collect fees for political causes or whether teachers must specifically object to having a portion of the dues used for political purposes.

By the Editorial Board of the Union-Bulletin Do the free speech rights of organizations such as unions trump the rights of individuals? One wouldn’t think so. After all, our Founding Fathers built this nation on the foundation of individual rights.

The outcome of this case could change the way unions raise funds for lobbying efforts. Over the past 30 years, several U.S. Supreme Court rulings have made it clear that union members cannot be forced to pay for the union’s political activism.

Yet, a Washington state Supreme Court ruling seems to give more weight to the First Amendment rights of labor unions than to the individual members of unions.

The high court, if it follows the principle, should reverse the state court’s ruling, which essentially provided a loophole for unions to scuttle the rights of individuals and collect more cash for political activities.

The court, in ruling on the 1992 voter-approved campaign finance law, overturned the requirement that union officials gain worker consent before

It must be made crystal clear that the rights of individuals are sacrosanct. A strong Supreme Court opinion must be rendered that does just that.

Union Bulletin

We agree. But does the U.S. Supreme Court?


Editorials

significant expense involved in complying with” the law, the court averred.

Dues on the Docket

The Wall Street Journal

October 2, 2006; Page A10 It’s no secret that the political power and influence of U.S. public-employee unions derives from their ability to collect mandatory dues. But the issue of whether these forced dues can be used for political activities without explicit permission to do so from workers could use some legal clarification. That might happen now that the Supreme Court has agreed to hear an appeal from the state of Washington, where even nonmembers of unions can be compelled to pay collective-bargaining dues as a condition of employment. In 1992 Washington voters overwhelmingly approved a so-called “paycheck protection” initiative that forbade unions from using compulsory fees of nonmembers for political purposes without their consent. Nevertheless, the state teachers union, the Washington Education Association, continued to spend dues money on politics without permission, finally prompting a lawsuit from then-Attorney General Christine Gregoire in 2000. The state won that case, but the union ultimately appealed to the state supreme court, where it argued that the paycheck protection law was unconstitutional and the court agreed. In its March decision striking down the law, the state court said that requiring consent to spend dues on political programs is “too heavy an administrative burden” for unions. The court also held, strangely, that the opt-in provisions of paycheck protection violate the First Amendment rights of the union. Why? Due to the “obvious,

In other words, it is too burdensome to ask a teachers union to do what every other group in the U.S. must do if it wants to raise money for a political cause: Identify, contact and persuade people to contribute. This is the “burden” of groups on both the left and right -- from the Sierra Club to the National Rifle Association. This union exception isn’t very persuasive, and we’d be surprised if the U.S. Supreme Court buys it. In a landmark 1988 decision, Communications Workers v. Beck, the Supreme Court held that workers under union contracts couldn’t be forced to pay dues for activities not directly related to collective bargaining. But enforcement, which falls to the Labor Department and National Labor Relations Board, has often been weak or nonexistent. Moreover, under Beck, workers must opt-out of their dues money going to partisan political causes. Many are unaware that they have this right, and unions have become expert at creating obstacles to discourage those who want to exercise it. The temptation for the Justices in the current case will be to rule narrowly on the First Amendment issue raised by the Washington supreme court and stop there. But the Court could do a service for the country by addressing the issue more fundamentally. Six states have passed paycheck protection laws that organized labor has opposed vigorously. And in 28 states workers can still lose their jobs for not joining the union. The High Court now has an opportunity to set some national guidelines regarding the constitutionality of both paycheck protection laws for nonunion workers and the more general practice of unions extracting money from any worker involuntarily. Let’s hope they don’t take a pass.


October 3, 2006 Tuesday The principle should be simple and clear: No one should have their money go to a political cause they don’t support. And the burden should never be on citizens to prevent their money from being spent against their will. The U.S. Supreme Court ought to keep this principle in mind when it hears a case from Washington state involving union dues being used for political purposes. Some states require workers who choose not to be members of a union, but who receive the pay and benefits negotiated by a union, to pay the union bargaining or “agency” fees. The U.S. Supreme Court ruled two decades ago that unions must tell these workers what percentage of their dues or fees go to political purposes, rather than

The Detroit News

Don’t force workers to support politicians; Court should make unions ask before using dues for politics

bargaining costs, and allow them to opt out of paying this portion of their fees. Unions have a history of not being helpful to workers who want to opt out of this portion of their fees, even though it’s the law. The state of Washington, however, through a referendum on campaign finance reform, opted to reverse the burden and make unions get the express permission of workers who pay agency fees before using their money for political purposes. Unions protested, filed suit and won an astonishing ruling from the Washington Supreme Court that it somehow violated the unions’ First Amendment rights to have to get permission to use other people’s money for politics. The Washington high court said the state law places too much of an administrative burden on unions. That’s absurd. The U.S. Supreme Court has agreed to review that ruling in a case brought against the Washington Education Association by several teachers who pay bargaining fees. It ought to make short work of the state Supreme Court ruling. First Amendment rights belong to individuals no less than labor unions, and it ought to be well within the rights of the people of a state to legislate how unions spend money they collect from non-members. It is inconceivable that the First Amendment’s drafters and supporters expected that individuals should have the burden of preventing their money from being spent for politics if they are opposed to such expenditures. Workers and political dues. About 78 percent of union members said they weren’t aware of their right to ask unions to withhold the part of their dues financing political activity.


Editorials

Free choice, not compulsion

Chattanooga Times

Chattanooga Times Free Press (Tennessee) October 9, 2006 Monday Workers who choose to join a union ought not to be harassed, but those who do not wish to join should not have to support the union’s political activism. That simple concept has been ignored in Washington state. The U.S. Supreme Court has agreed to hear a case involving what practically amounts to compelled worker support for union politics there. Teachers in Washington who are not members of the Washington Education Association can still be assessed dues for union labor negotiations that benefit them. But they can opt out of the use of

their money for political advocacy by the union. That’s the rub. Technically, teachers can exercise their right not to have their dues used for political causes. But the union requires objecting teachers twice yearly to submit specific objections to avail themselves of that right, even if those workers have made it explicitly clear that they do not ever want their dues to promote political causes. That cumbersome process surely discourages many from even bothering. It puts the burden on a person who is being compelled to pay dues in the first place, rather than on the union that wants to use that money for purposes to which it knows the worker would object. Amazingly, a state court said it would violate the union’s free speech rights to have to seek permission from workers to use their money for politics, yet supposedly it does not violate the workers’ rights to have to ask repeatedly that their money not be misused. We oppose the unionization of public employees in the first place. But public or private, workers should not have to take burdensome steps to keep their union dues from being used in ways they find objectionable.


A ‘sin’ of Big Labor Published October 10, 2006 In 1779, Thomas Jefferson famously wrote: “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors is sinful and tyrannical.” Jefferson’s dictum, of course, never deterred Big Labor from using dues and collective-bargaining payments from members and nonmembers to finance a liberal political agenda, which in many cases had nothing to do with labor concerns and frequently supported the election of liberal Democrats whom more than a third of union members routinely opposed in the voting booth. More than 200 years after Jefferson’s assertion, no less than liberal Supreme Court Justice William Brennan, writing for the majority in the 1988 Communications Workers of America v. Beck case, declared that federal labor law did not permit labor unions “to exact dues equivalents from nonmembers in any amount they please no matter how unrelated those fees may be to collective bargaining activities.” Big Labor responded by constructing oftentimes impenetrable obstacles preventing nonmembers from obtaining rebates for the portion of their fees that went to politics. Partly in response to Big Labor’s truculent reaction to the Supreme Court’s Beck decision, in 1992 voters in the liberal state of Washington overwhelmingly approved an initiative that required labor unions to obtain an affirmative consent from nonmembers before the unions could use the fees paid by them

Not surprisingly, the Washington Education Association (WEA), which has more than 80,000 members, including about 60,000 K-12 classroom teachers, ignored the requirements by failing to obtain the prior consent of thousands of nonmember teachers before using part of their agency fees to pursue political activities. In 2000, then-Washington Attorney General Christine Gregoire, a Democrat, filed a lawsuit against the WEA in state court, which ruled in her favor. Later, the Washington Supreme Court overturned the lower court’s decision, declaring the affirmativeconsent requirement to be unconstitutional because it imposed an “extremely costly” burden on the political activities of the WEA and violated the union’s First Amendment rights of free speech and association. How strange: The WEA extracts from agency fees from nonmembers in excess of collective-bargaining costs; the WEA then spends the difference on political activities that many nonmembers oppose; and the Washington Supreme Court asserts that it is the free-speech rights of the union that are violated by the prior-consent requirement. Both the state of Washington and several nonmembers have appealed the Washington Supreme Court’s decision to the U.S. Supreme Court, which recently agreed to hear the case, probably in December or January. A 2004 Los Angeles Times exit poll of more than 5,000 voters nationwide revealed that 43 percent of voters from union households cast their ballots for President Bush. Nevertheless, political spending by labor unions routinely favors Democrats by 90 percent or more. “Sinful and tyrannical,” indeed.

The Washington Times

to pursue a political agenda unrelated to collective bargaining.


Editorials

High court will rule if unions must ask before using mandatory dues for politicking

OC Register

Wednesday, October 25, 2006 A fundamental American freedom is being able to spend – or not spend – one’s own money on political campaigns, for persons or initiatives. Money forcibly taken from a person to support a candidate or initiative that the person opposes is a form of tyranny. In early November the U.S. Supreme Court will begin hearings on one of the most important cases in this area, Washington vs. Washington Education Association. In it, the state of Washington is defending Proposition 134, which voters passed with 72 percent of the vote in 1992, against a powerful union, the WEA. The appeal is to overturn a March 2006 ruling by the Washington state Supreme Court that Prop. 134 is unconstitutional. Under state and federal law, even nonunion teachers must be represented by the WEA for collective bargaining purposes on their teaching contracts, and have dues for that purpose deducted from their paychecks. That’s not at issue.

At issue are teachers who are not members of the WEA, and whether the WEA can take additional money from nonmembers’ paychecks to be used for political purposes. Under Prop. 134, this is not allowed. Instead, a nonunion teacher must “affirmatively authorize” use of the money for union political activities. Michael Reitz, director and legal analyst for the Labor Policy Center of the Evergreen Freedom Foundation, a conservative Washington state think tank that is helping the workers, told us that Supreme Court case law already allows a nonunion employee to opt out of the use of political dues for political purposes by a public or private union. But the employee must take the first action, requesting a refund of the money. Prop. 134, if upheld, would reverse the process, making the union ask nonunion employees first if their money can be used for political purposes. This is important because many employees simply don’t realize that the money is being deducted from their paychecks. This case is especially important to Californians because Washington’s Prop. 134 is similar to California’s Proposition 75, which voters defeated in November 2005 but which could come back in another form on a future ballot. Prop. 75 would have required all employees represented by publicemployee unions – members and non-members – to give their prior consent before their union dues were used for political purposes. The U.S. Supreme Court will begin briefings on the case Nov. 8 and likely will decide the case next year. We urge the court to uphold Prop. 134. Coercion should play no role in raising money for political campaigns


elections in history.

By Bob Williams November 06, 2006 It’s the homestretch of election season, and Americans take it for granted that the airwaves buzz with political ads, campaign consultants dash around districts, and union dollars flow generously into the pockets of liberal politicians. This year, however, unions don’t take it for granted. They have their eye on two Supreme Court cases that could affect how they spend mandatory dues. Unions wield enormous, though often unseen, political clout. In the 2004 presidential election cycle, organized labor raised a reported $199.5 million for their own political organizations. The AFL-CIO said it spent $44 million on voter mobilization; the Service Employees International Union (SEIU) spent $65 million. The National Education Association spent nearly $25 million on political activities and lobbying in 2005. This year is no different. An analysis of federal campaign-finance reports by USA Today shows that major unions have raised more money than they did for the last midterm elections in 2002. The SEIU’s primary political action committee (PAC) and three local PACs raised $15 million, a 62 percent increase from 2002. The American Federation of State, County and Municipal Employees’ PAC raised $9.1 million, a 39 percent increase from 2002. Additionally, the AFL-CIO is spending $40 million for what its president, John Sweeney, calls the most important congressional

As a result, millions of union workers nationwide are involuntarily - and unfairly - funding political activity they don’t support. That’s why two cases now before the high court are so important. Both cases, brought against the Washington Education Association (WEA), a state affiliate of the National Education Association, would represent a huge step forward for teachers’ rights against unions. At the heart of Washington v. WEA and Davenport v. WEA is a simple question: Is a Washington state law that requires public employee unions to get permission before spending workers’ mandatory dues on political causes too much of an “administrative burden” on the union’s free speech rights? But there’s a twist, too: What if employees are not members of a union? They, too, can be required to pay union dues as a condition of employment. In such a situation, US Supreme Court case law lays out First Amendment protections to ensure that employees are not forced to support political activity against their will. Washington’s law established the additional requirement that nonmembers must “affirmatively authorize” any use of their dues for union political activity. However, on March 16, the Washington State Supreme Court turned the Constitution on its head and ruled that the WEA can use nonmember teachers’ dues for political activity without getting permission from the individual teachers. Incredibly, the unions have argued they have no “fiduciary duty” to the teachers they represent. In other words, once the union bosses take dues from

The Christian Science Monitor

For unions, a Supreme test of fairness

Unfortunately, a lot of union spending does not line up with the political preferences of members, even though union dues are mandatory as a condition of employment in many states.


Editorials

For unions, a Supreme test of fairness Continued...

their teachers, they think that their hard-earned money can be used for whatever the union pleases.

The Christian Science Monitor

The US Supreme Court should reinstate the “fiduciary duty” that unions have blatantly neglected. The justices are scheduled to hear oral arguments Jan. 10, and their decision is expected by June. If they uphold the Washington decision, unions will be free to spend workers’ dues without accountability. But if they overturn the decision and side with the teachers, educators - and other union workers - will have their free speech rights restored. Unions will then know, once and for all, that their ability to raise money does not trump the constitutional rights of individual citizens.


By Stephen Moore Thursday, December 7, 2006 SPOKANE, Wash.--Teachers unions are supposed to promote the financial interests of, well, teachers--but not in Washington state. Here, the Washington Education Association is fighting some 4,000 nonmember teachers who don’t want their paychecks raided each year and used for political activities that they don’t believe in. “The right of free speech is being trampled” by the union political spending, complains Scott Carlson, a business teacher in Spokane. “And that’s a right I hold very precious.” Too bad the unions don’t. The WEA derisively refers to teachers like Mr. Carlson who want their money back not as free-speech advocates but “dissidents.” The goal is to squash these dissidents by overturning Initiative 134, a law--approved by 72% of Washington voters in 1992--that requires unions to obtain written approval from teachers before dues are spent on campaigns or candidates. Back in March, the unions got a surprising assist from the state Supreme Court, which ruled that the paycheck protection law places “too heavy” a burden on the free-speech rights of the union. The case has now been bumped up to the U.S. Supreme Court, which will hear oral arguments in January--in what could be the most important First Amendment decision in years. At issue is whether workers have the right to effectively declare themselves conscientious objectors to the unions’ multimillion-dollar political war games. “All we are saying is that no one has the right to take our money and spend it on

The union retaliated with lawsuits and other intimidation tactics to shut her up. It’s one reason she’s not teaching anymore. “We’re constantly called ‘freeloaders’ and ‘enemies of public education,’” she notes with a mix of frustration and resentment. Another nonunion teacher in Seattle, who asked to remain anonymous for fear of reprisals, says that the WEA openly invites retaliation by widely distributing lists of the outcasts: “Believe me, sitting in the faculty lounge is no picnic. You always have to look over your shoulder.” The actual money at stake for these 4,000 teachers is relatively modest--ranging from $50 to $200 in rebated annual dues--which makes their crusade all the more principled. But it’s a boatload of dollars to the unions. Since 2000, the WEA has spent nearly $10 million on political campaigns, PAC contributions and lobbying, according to the state’s public disclosure commission. The union’s political war chest ranks in the top five in the state in terms of money raised and spent. The Washington Supreme Court defended its ruling by arguing that the benefit to the individual teachers was trivial compared to the “heavy administrative burden” that complying with paycheck protection would impose on the union. That attitude incenses Jeff Leer, who for 10 years has been a phys ed teacher outside Seattle. In an interview, Mr. Leer fumed: “I wonder how these justices would feel if I reached into their pockets and took $200 to support causes they don’t believe in.” He told me that when he investigated the candidates that his union dues were going to

The Wall Street Journal

State of the Unions

causes we don’t believe in,” insists Cindy Omlin, a recently retired speech teacher in Spokane. “If you want my money, ask for it, like private charities, political candidates and businesses do.” Ms. Omlin was one of 250 teachers who successfully sued the WEA in 2002 to get half their dues refunded after a Washington superior court found the union guilty of “intentional violations” of the paycheck protection law.


Editorials

State of the Unions Continued...

The Wall Street Journal

support, “it was nearly 100% opposite of the way I voted. How is that fair?” Mr. Leer is by no means alone. Nationally, about one-third of union workers voted Republican in recent elections, but more than 90% of the union campaign cash that is forcibly extracted from their checks goes to help elect Democrats. The unions also know all too well that when members are given the right to opt out of paying dues for political causes, they do. In the year before Prop. 134 was enacted in Washington, 48,000 teachers made “voluntary” contributions, but in the last election cycle that number dwindled to 4,537, according to a study by the Evergreen Foundation, which has been involved in this legal tussle for about a decade. In Colorado and Utah, similar rules requiring unions to get affirmative consent from members for political activities led to a 70% to 90% reduction in dues collections. Giving workers the freedom to choose is a dose of arsenic to the union political agenda. What shouldn’t be a close call is the outcome of this case. The Washington law states unambiguously that a union may not use dues “for political purposes without the affirmative consent of the nonmembers from whom the excess fees were taken.” The Washington Supreme Court

somehow twisted these words to mean that the unions can spend as they wish unless workers object and affirmatively opt out. That’s a big distinction, because the unions make it as timeconsuming and cumbersome as possible to get the money back once they snatch it. The Supreme Court also has an opportunity to define what the First Amendment “right of association” means. What it ought to mean is that both parties voluntarily agree to associate and that Americans have a constitutional right to not associate. The unions are arguing for the right to collect dues coercively from every instructor who stands up in front of a public school classroom. In Washington and many other states where paycheck protection is under debate, the teachers unions pass out signs and bumper stickers to their members that read: “Let Teachers’ Voices Be Heard.” In California last year they waved these signs at public forums while they shouted down teachers who got up to explain why they didn’t want to fund the union’s leftist politics. The irony was evidently lost on the union helpers. The Supreme Court can now ensure that the First Amendment means that every teacher’s voice must be heard--whether they are in a union or not.


By Quin Hillyer Friday, December 22, 2006 WASHINGTONThe U.S. Supreme Court next month has a chance to teach some important lessons to a major teachers’ union — and to the Washington state high court that acted as the teachers’ union pet. In the case of Davenport v. Washington Education Association (henceforth the WEA), the Washington State Supreme Court upended at least three separate legal principles. If the state court’s ruling stands, the union will be allowed, against the express intent of the state Legislature, to use the compulsory dues of non-members for political purposes without the workers’ direct consent. You read that correctly: At issue are workers who specifically chose not to join the union. Yet without their express consent, dues are deducted from their paychecks not just for collective bargaining but also for union-backed politics. And the state high court ruled that the same state Legislature that created the system of compulsory dues has no constitutional right to protect those workers from the misuse of those dues. The principles abused by the Washington court are obvious. First, the court confuses statutory authority with constitutional imperatives. Second, the court creates a non-existent First Amendment right for a union while withholding an obvious First Amendment right from individuals. Third, this supremely activist court shows a severely insufficient deference to legislative prerogatives.

Bizarrely, the state court (in a sharply split decision) ruled that although the Constitution does not guarantee the union an automatic right to assess such fees on non-members, it does give the union the right to a particular means of collecting such fees. Thus does a power that is optional to begin with get transmuted to one that is (supposedly) a protected constitutional right. Go figure. There went the first principle down the drain. As for the second principle, the court forgets that constitutional rights are possessed first and foremost by individuals rather than by groups. Somehow the court goes from noting the First Amendment right of individuals to associate for political purposes to asserting that the right extends to the use of funds from those who choose not to so associate. With unintentional irony, the court writes that “the freedom to associate encompasses the freedom to contribute financially to an organization for the purpose of spreading a political message.” But the very definition of “freedom” of necessity implies the freedom not to contribute financially. The court advances some balderdash about how the restrictions on political use of forced dues amount to the “majority” somehow “being silenced by the dissenters.” But as the Solicitor General of the United States aptly notes in an amicus brief,

The Examiner

Quin Hillyer: The right not to contribute

A tiny bit of background is in order. Unlike at least 22 other states that, with the U.S. Supreme Court’s express permission, prohibit compulsory union dues, Washington State requires such dues to be paid under certain circumstances. In doing so, however, Washington lawmakers require that the unions in question seek affirmative consent from non-members before using those fees for politics. In other words, the law says such non-members’ fees are safe from political use unless the nonmembers opt in to such use. The WEA, however, has been using those dues for political purposes unless the non-members specifically opt out of such “representation.”


Editorials

Quin Hillyer: The right not to contribute Continued...

The Examiner

“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.” As for the third principle, it is well accepted that courts should not lightly intervene in legislative judgments. In fact, courts ought to apply at most only a moderate scrutiny to legislative enactments — in other words, to assume the laws pass muster as long as courts can discern a “rational basis” for them — unless a fundamental right is so threatened that it requires “strict scrutiny” of the sort that presumes from the start that the legislators probably erred. Only a dangerously hyper-activist court would apply “strict scrutiny” in the area of compulsory union dues, because the courts themselves admit that the states have free rein to absolutely forbid all such dues collections. If compulsory dues themselves are not a fundamental right, how can a specific means of assessing those dues be fundamental? It can’t and it isn’t. In their brief against the WEA, the aggrieved non-WEA teachers provide an admirably long list of U.S. Supreme Court cases that support their commonsense argument that they can’t be forced, even by default, to give money to political causes they oppose. The Washington high court’s alternative is tyranny. It must not stand. political war games. “All we are saying is that no one has the right to take our money and spend it on


By Mike Reitz December 26, 2006 Samuel Gompers, the founder of the American Federation of Labor, once said, “I want to urge devotion to the fundamental of human liberty—to the principles of voluntarism. No lasting gain has ever come from compulsion.” Mr. Gompers would be saddened to see the AFLCIO has filed an amicus brief in support of a union that forces workers to subsidize political activity against their will. The Attorney General of Washington and a group of concerned teachers have taken the Washington Education Association, an affiliate of the NEA, to the United States Supreme Court for illegally spending dues on politics without teachers’s permission. The consolidated cases of Washington v. Washington Education Association and Davenport v. Washington Education Association will be presented to the Court on January 10. The case will have a major impact on the free speech rights of employees nationwide. At issue is whether unions can force employees to subsidize partisan politics against their will. Unions loom large among the nation’s political special interests, spending an unprecedented $100 million on the 2006 midterm elections. The AFL-CIO alone spent over $40 million on its efforts. The National Education Association spent a reported $26.9 million on politics and lobbying over the last year. Unfortunately, Big Labor’s power is derived in

“I had many objections to the National Education Association, because I didn’t feel it concentrated its efforts on workplace issues,” says Cindy Omlin, a former speech pathologist in Spokane, Washington. Instead, her union focused its efforts on a left-wing social agenda that had little to do with education. “Many times I would be working as a private citizen on political issues and find that I was paying the other side through my union dues.” This issue is now going before the U.S. Supreme Court. According to Washington state campaign finance law, the union must obtain a teacher’s permission before using collective bargaining dues for politics. When the Washington Education Association ignored the law, the state attorney general and a group of concerned teachers brought suit. The trial court imposed a $590,375 penalty on the union for intentionally violating the law. In a bizarre reversal, the Washington State Supreme Court ruled that getting permission from teachers was “unduly burdensome” on the union, and declared the law unconstitutional. Apparently an administrative burden on the union was more offensive than the First Amendment violations on teachers. Cindy Omlin found this ruling outrageous. “Instead of teachers having freedom of speech and individual liberty, the court is saying the union has more power and rights than teachers.” Unfortunately, unions claim an absolutely right to spend dues as they see fit, regardless of the viewpoints of teachers. According to the National Education Association’s own internal poll, 50 percent of NEA members identify themselves as conservative. Despite this, 90 percent of the union’s contributions go to Democrat candidates. A Washington Education Association lawyer actually

Front Page Mag.com

The NEA: Classroom Bullies

large part through dues forcibly extracted from workers’s paychecks. Unions use mandatory collective bargaining dues to fund their political activities, often supporting causes that directly violate the employees’s own viewpoints.


Editorials

The N.E.A. Classroom Bullies Continued...

argued in court that the union owes no “fiduciary duty” to its teachers.

Front Page Mag.com

Unions also ostracize and harass teachers who exercise their First Amendment rights. After Cindy Omlin discovered she could opt out of the union’s political spending, she and a colleague began notifying other teachers of their rights. The union actually sued her in an attempt to silence her, and offered to drop the lawsuit if she promised not to criticize the union. Omlin is not alone; other teachers share her plight. She has since left the WEA and started an alternative, nonpartisan educators association— Northwest Professional Educators—where she continues to fight for the First Amendment rights of teachers. Sadly, for every teacher who speaks out against the union’s coercive practices, thousands suffer in silence. It is time for the Supreme Court to deliver justice for workers nationwide and end the compulsion that exists in today’s modern labor movement. .


By Al Knight Janurary 9, 2007 It is said that every important political issue eventually ends up before the U.S. Supreme Court. So it is that this morning, the nation’s highest court will hear an hour of oral argument on two Washington state cases that could limit the power of the teachers’ union to use dues from nonmembers for strictly political purposes. The issue is not a new one for Washington or for many other states, including Colorado. The teachers’ union is a powerful political force largely because it has been able to harness the financial resources of its 2 million or so members and use some of those assets for political purposes, most often benefiting the Democrats. In 1992, the voters of Washington passed a ballot measure that specifically prohibited any labor union from using dues paid by nonmembers under an “agency shop agreement” for political purposes without their expressed permission. An agency shop agreement allows groups like the teachers’ union to collect dues from nonmembers on the theory that the nonmembers benefit from the collective bargaining efforts of the union and therefore should share in the cost. Voters in Washington, by a 73 to 27 margin, were persuaded that nonmembers of a union shouldn’t have to support the political activities of a union they were unwilling to join.

A second case in which teachers actually attempted to recover misspent dues was dismissed. Both cases are now being reviewed by the U.S. Supreme Court. There are understandably a lot of organizations interested in the outcome of these cases. One of them is the Mountain States Legal Foundation in Colorado, which has filed a friend of the court brief. That brief emphasizes that the U.S. Supreme Court’s earlier cases make it clear that at a minimum, unions must give nonmembers an opt-out option but anticipate that individual states might enact more schemes even more protective of the rights of nonmembers. The brief goes on to argue that the opt-in requirement in Washington is one of these constitutionally valid methods. Mountain States’ attorneys also make a compelling argument that the Washington court was simply wrong in its conclusion that refunding money to nonmembers would be a burden the union couldn’t bear. The brief points out that only 5 percent of the teachers represented by the union are nonmembers. If the money to be spent on political purposes were simply refunded automatically, the union in Washington would be out only $200,000 out of $4 million. This modest reduction in the political budget, Mountain States suggests, hardly constitutes a violation of the free speech rights of the union. Three outcomes to the case seem possible: The union will prevail and the Supreme Court will

The Denver Post

High court may lessen the political power of labor unions

To put the matter gently, the teachers’ union in Washington decided not to abide by the new law and merely continued to give nonmembers an opportunity twice a year to opt out of the political dues deduction. Eventually this practice was challenged and the union won a Washington Supreme Court decision invalidating the ballot measure passed 14 years ago. The state’s highest court held that asking nonmembers for permission to spend dues on political matters was “too heavy an administrative burden” on the union.


Editorials

High Court May Lessen the Political Power of Labor Unions Continued...

rule the opt-in requirement unconstitutional. The court will uphold the requirement that dues from nonmembers cannot be used for political purposes without the affirmative permission of those members. Such a ruling might well encourage other states to follow Washington’s lead and enact additional protections for nonmembers. Mountain States has asked the high court to explicitly overrule a prior decision and hold that all unions be barred from using dues for political purposes without the expressed permission of “supporting nonmembers.”

The Denver Post

Were that to happen, every state and every union would be affected and the politics of unionism would be changed overnight. Whatever the exact outcome, the court needs to find a way to firmly re-establish the principle obvious to almost everyone: It is wrong to compel someone to financially support programs and political activity which they find objectionable. In this instance, the more sweeping the court’s decision, the better it will be.


from having their union fees taken without their consent and used for union political purposes.

Janurary 9, 2007 Unions: The Supreme Court will hear arguments today over an issue of fairness that should never have gotten as far as the highest court in the land. For a decade, teachers in the state of Washington have been fighting the Washington Education Association’s shameful practice of using union fees paid by nonmembers for political purposes without the consent of those nonmembers. Washington teachers who don’t join the union still, by state law, pay a fee to the union to cover the costs of collective bargaining that affects their salaries. Given that that U.S. Supreme Court clearly ruled on this issue more three decades ago, Davenport v. WEA should never have made it all the way to the highest court in the land. State law in Washington, through a 1992 ballot initiative, puts the burden on unions to get permission from nonmembers to use their fees for political activities. The teachers union, though, violated the law, which prompted Attorney General Christine Gregoire to sue the WEA in 2001. A state Superior Court judge ruled the union was in violation and levied a $400,000 penalty. That decision was overturned on appeal in 2003 by the state Court of Appeals, which actually found a way to declare that arrangement unconstitutional. It did so despite the 1977 Abood v. Detroit Board Of Education and the 1986 Chicago Teachers Union v. Hudson U.S. Supreme Court rulings. Both said the First Amendment shields nonmembers

The Washington Supreme Court upheld the appeal 6-3, but at least one of the justices — Richard Sanders — saw the case for what it is. Sanders opened his dissent by quoting Thomas Jefferson, who, not famously enough, said that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.” Should the high court rule this time for the teachers union over the nonunion teachers and the state — which has a stake in this since it is a state law in question — unions around the country will be given a free hand to reach, without consent, into nonmembers’ pockets to fund union political efforts. In some quarters, digging into someone’s pocket and taking money without his permission is known as stealing. Yes, it is a burden on unions, as the Washington Supreme Court said, to ask for nonmembers’ consent to use their fees for unions’ political activities. But fairness compels that arrangement. Unions, which are tightly linked to Democratic Party politics, should not have privileges that are not accorded other institutions. Further, unions should not be free even with permission to spend on their political efforts a single penny that was supposedly used to pay for collective bargaining. If there’s enough cash remaining after negotiations to pour into politics, workers are being charged too much. They should get refunds, and if after that they want to contribute the money to a union political activity, they are free to do so.

Investors Business Daily

Workers’ Choice

The appeals court also ignored the 1988 Beck ruling, in which the U.S. Supreme Court said employees who must pay union dues under the National Labor Relations Act cannot be forced to contribute to a union’s political action.


Editorials

and the U.S. Supreme Court now has a chance to decide in Washington v. Washington Education Association and Davenport v. WEA.

Labor’s Money Grab

The Wall Street Journal

January 10, 2007 Compulsory dues are the financial foundation of Big Labor’s political power. So you can bet union officials will be paying special attention today as the Supreme Court hears oral arguments in a case that could affect how that money may be spent. The appeal consolidates two cases from Washington state, where even nonmembers of unions can be forced to pay collectivebargaining dues as a condition of employment. In 1992, Washington voters rebelled against that obligation; they overwhelmingly approved a paycheck protection law that requires unions to get “affirmative authorization” from workers who don’t belong to the union before spending their dues money on politics. The state teachers union, the Washington Education Association, challenged the voterpassed law, and a state Supreme Court ruling last year struck it down on the grounds that it violated the First Amendment free-speech rights of union officials. It’s a novel rationale, to say the least. After all, every other special interest group trying to raise money for a political cause has to contact people and persuade them to contribute. That includes the National Rifle Association, Emily’s List, the trial lawyers and Chamber of Commerce. But the Washington Supreme Court held that such opt-in provisions were “too heavy an administrative burden” for unions and thus unconstitutional. The state appealed the ruling,

Washington is one of a half-dozen states to pass a paycheck protection law. And if the lower court ruling is upheld on the principle that unions have a constitutional right to extract money for political activities from even nonmembers, these laws could be jeopardized everywhere. Such a ruling could also undermine so-called “right to work” laws in 22 states, where workers currently can decide for themselves whether to join or support the union. If the High Court says unions have a First Amendment right to spend nonmember dues on politics, a right-to-work law that prohibits collecting dues from nonmembers becomes problematic. The good news is that the U.S. Supreme Court has plenty of case law to work with. In its Beck and Abood rulings, the court said workers couldn’t be compelled to support a union’s political expenditures. And its Hudson decision spelled out procedures for how the competing interests of the union and nonmember workers could be balanced. Namely, the court said workers must be given an opportunity to opt out of political spending and receive a refund for dues money that isn’t used for collective-bargaining purposes. Washington state’s law takes this a step further, requiring workers to actually opt into political activities, not merely opt out of them. And that’s the way it should be if workers’ rights are to be protected. Why should unions be able to take money from someone who objects, put it to use for lobbying and organizing, and then refund it after the fact? The High Court has an opportunity to clarify these matters -- and in the process stop Big Labor from continuing to trample the rights of employees averse to funding a union’s political agenda.


January 10, 2007 Despite the fact that 43 percent of voters from union households cast their ballots for President Bush in 2004 (according to a national exit poll commissioned by the Los Angeles Times), labor unions have routinely directed more than 90 percent of their political expenditures to the candidates and causes of the Democratic Party. Of course that’s outrageous. However, what has been happening in the state of Washington is even more outrageous. So much, in fact, that the Supreme Court of Washington state has turned the First Amendment upside-down. It did so by invalidating a statute (Section 760 of the state political-campaign law) that protected the rights of free speech and association of employees who have chosen not to join a union. Their refusal to join is oftentimes due to their vehement opposition to the political priorities of the union. Today, the U.S. Supreme Court will hear arguments in two cases involving the Washington Education Association, the state’s teachers’ union. Davenport v. WEA involves teachers who are not WEA members but who are compelled to pay the WEA agency shop fees, which are ostensibly used for bargaining activities. Section 760 does not require the WEA to obtain permission from its voluntary members to use part of their dues for political purposes. It does,

In an absurd interpretation of the First Amendment, the Washington Supreme Court declared in a 6-3 decision that Section 760 was unconstitutional because it supposedly restricted the free speech of the union. Claiming that the union “has the [First Amendment] right to use nondissenting nonmembers’ fees for political purposes,” the Washington Supreme Court majority argued that a “presumption of dissent violates the First Amendment rights of both members and nonmembers.” Both? Let’s take a closer look at the constitutional rights of the nonmembers. The dissenting opinion signed by the three justices in the minority persuasively argued that “the majority turns the First Amendment on its head to invalidate a state statute enacted to further protect the constitutional rights of nonunion members who are required to pay agency fees as the price of employment.” The majority decision “puts in jeopardy the First Amendment right of nonmembers to refuse to associate with a union which uses their money to advance a political agenda with which they might disagree. That is the concern of the First Amendment in this context.” The U.S. Supreme Court should restore the constitutional rights of nonmembers by overturning the Washington Supreme Court, thereby requiring unions to obtain permission from nonmembers before their fees can be used to finance causes they likely oppose.

The Washingtion Times

Restore workers’ constitutional rights

however, require the WEA to obtain consent (“affirmative authorization”) from nonmembers to use any portion of their compelled fees for politics. In other words, unless a nonmember affirmatively approves the use of his compelled fees for political activity, it is fair to presume that he dissents from any effort by the union to do so. After all, the nonmember has chosen not to join the union.


Editorials

of some 3,000 nonmember teachers before using any portion of their dues for politicking.

Court hears arguments in Washington state cases

Las Vegas Review-Journal

January 11, 2007 The U.S. Supreme Court has held that labor unions may collect fees from nonunion workers to cover the costs of collective bargaining performed on their behalf. But the court has further held that’s all they can take -- the unions are forbidden from collecting and using additional fees from nonunion workers to finance union political activities, unless those workers grant their permission. Otherwise, workers who choose not to join a union but who are nonetheless assessed “bargaining” fees could end up being required to pay for partisan politicking they may oppose, violating the free speech and association clauses of the First Amendment. But how much -- and what kind of -- “permission” is necessary? The high court Wednesday heard arguments on two consolidated cases out of Washington state that raise just that question. At issue are the fees collected by Washington state’s teachers union, the WEA. If you want to be a teacher in Washington, you have to pay a fee to the union, even if you aren’t a member. That’s because the state Legislature assigned exclusive authority to the union to bargain for pay and other employment matters for all teachers. Nonunion teachers see deductions equal to the union dues withheld from their paychecks. But a 1992 state campaign-finance law mandates that the 80,000-member union obtain the consent

The narrow issue before the justices is whether employees must opt in -- affirmatively consent -- to having some of their money used in election campaigns. Union officials say they obtain that consent by offering nonmembers the option of objecting to the political use of their fees. Twice a year, the WEA mails a packet of information to nonmembers telling them they have a right to object to the use of their fees for politics. If they object, the money is refunded. But if they do nothing, forget or otherwise fail to properly return a form within the 30-day deadline, the union interprets that as permission to use the money for political purposes. Plaintiffs -- a group of current and former teachers -- complain that’s not enough. They say the state law requires prior authorization -- an “opt-in” system. If no such prior consent is given, the money is off limits for political purposes and must be refunded, they argue. Weirdly, despite the specific language of the law, the Washington state Supreme Court sided with the union, declaring by a 6-3 vote that the state’s tougher affirmative consent law violated the WEA’s free speech “right” to use union funds for political advocacy without facing governmentimposed restraints. “The union’s [opt-out] procedures amount to a constitutionally permissible alternative that adequately protects both the union and dissenters,” the state court declared. But that logic “turns the First Amendment on its head,” Justice Richard Sanders wrote in dissent. Precisely. As author Geoff Leff pointed out in a recent commentary, “The First Amendment protects the rights of individuals and organizations to freely associate and express themselves.” But to truly do that, it must also protect their rights “not to associate and not to be compelled to support


expressions they oppose.”

Debra Carnes, a spokeswoman for the WEA, agrees it’s all about the money, arguing the legal battle is aimed at undercutting the power of unions. “This is much bigger than WEA and opt-in or optout,” she says. “The goal is to dry up the money so unions have no collective voice.” But the only money that might be “dried up” is nonmembers’ money to which the unions had no right in the first place. And if Ms. Carnes believes nonmembers will withdraw most of their 4 percent of the union’s political funds if given the chance, isn’t that a tacit admission that the current “optout” arrangement has the effect of denying them that free choice? Here’s hoping the court gives Washington’s nonunion teachers their refunds.

Las Vegas Review-Journal

The amounts involved are not paltry. In previous cases, courts have found that unions often spend a majority of their funds on things that aren’t related to collective bargaining. The U.S. Supreme Court’s 1988 Beck case found only 21 percent of the union’s spending was legally chargeable to nonmembers, Mr. Leff notes.


Editorials

For dissident teachers, the right to limit dues Friday, January 12, 2007

The Settle Times

In the Washington Education Association case argued Wednesday at the U.S. Supreme Court, most of the justices seemed to side with Washington Attorney General Rob McKenna, who was representing the rights of the dissident teachers. So do we. The case has been portrayed as an attack on unions. It really is not. It has no effect on any union’s right to spend its members’ money on politics. It is only about nonmembers’ money. Under federal law, unions have a limited right to nonmembers’ money. Once a union has been created by a majority of workers in a vote, it represents all the workers in the unit, including the ones who are hired after the vote, and it can collect dues from all of them. But to protect the rights of dissenters, courts have allowed workers to resign from unions.

These “agency fee payers” are still obliged to pay for labor representation, but they can ask for a refund of the part of their dues the union spends on other things, such as politics. To get their money back, they typically have had to ask every year, in a specific way and by a certain date. In 1992, the voters of Washington passed an initiative that said that for political contributions, the union had to ask them. This difference — whose pocket the money starts in, and who has to ask — is what was fought over Wednesday at the Supreme Court. The legal question was whether it was inherently unfair for the state of Washington to say that the money starts in the pockets of the nonmembers, and that if the union wants that money, it has to ask. We believe that is not unfair. Nonmembers are people who already have taken the trouble to resign. Perhaps when they do this there should be an additional step to opt out of political contributions or, if they want, all nonrepresentation expenses. But they should have to do this only once. If the union wants to ask nonmembers to donate to a cause, it should be free to do so — but it should not complain that having to ask is an unfair burden, or that it limits its freedom of speech.


on political objectives.

January 12, 2007 As recently as the 1970s, leaders of Washington’s largest teachers union disputed that label, and members recoiled from it. The Washington Education Association considered itself a professional organization, devoted to instructional quality. A union? No way. But times have changed, and nobody would practice that artifice today, not with a straight face. WEA is clearly a union, and its aggressive use of nonmembers’ dues for political causes has come before the U.S. Supreme Court. In Washington state, you don’t have to join WEA to be a public school teacher, but you do have to pay the dues – roughly $700 a year. The rationale is that all public school teachers, WEA members and nonmembers alike, benefit from the traditional bargaining role WEA plays regarding terms of employment and they ought to bear a fair share of that cost. As WEA shed its reluctance to look unionlike, more and more of those dues went to purposes outside the normal labor relations arena, such as political campaigns for favored candidates and ballot measures. To some, it seemed that in return for the opportunity to be teachers in this state, many individual educators were forced to contribute financially to political causes they disagreed with. A voter-passed initiative in 1992 required that employers and unions have a worker’s written consent before spending mandatory contributions

The Washington state Supreme Court finally saw things the union’s way, in effect giving it access to interest-free loans from unwilling lenders and putting the burden on the employees to ask for their money back. If employees forgot to request a refund before an arbitrary deadline, or didn’t know they could, or the paperwork was too daunting, it could be interpreted as their consent. This week, in an appeal to the U.S. Supreme Court, Washington Attorney General Rob McKenna reasoned that those employees who had chosen not to join the union in the first place had already implied their unwillingness to support its political agenda. “The state of Washington’s position is that nonmembers should not be required to say no twice,” McKenna told the justices during oral arguments. That’s reasonable. If WEA wants the political use of money from people who don’t want to be part of WEA, it’s only fair to expect the organization to get permission in advance. If that’s too burdensome for WEA, WEA should be willing to do without. That’s how a professional organization would act.

Spokesman Review

Our View: Dues and don’ts

But WEA did it anyway, and the organization eventually found itself facing more than half a million dollars in fines and penalties. Lawsuits followed in which WEA claimed that asking nonmembers for advance written permission to use their money on political causes was just too onerous. Instead, it would calculate a portion of the collected dues that had been spent on the prohibited purposes, then allow individual workers to request a refund.


Editorials

Spartanburg Herald Journal

That’s a thoroughly reasonable position. In this country, no one should be forced into funding any political position. Our First Amendment guarantee of free speech should assure it.

Workers shouldn’t have to pay for a message with which they disagree

The union sees it differently. It sees the new law as an infringement of its First Amendment rights. The union believes it has a right to collect and spend this money from non-members. The union will only accept a law that forces the non-members to opt out of the political use of their money.

January 15, 2007

The practical difference is that if workers have to take the initiative to opt out, most probably won’t. That way the union will be able to use their money freely. If the union is forced to get permission, most non-members won’t give it, and that source of money will dry up for the union.

The Supreme Court heard this week from a union that says it has a right to take non-members’ money and spend it to fund political causes those workers don’t support. The court should rule against the union. The Washington Education Association, a teachers’ union in that state, is allowed by state and federal law to collect dues from teachers who don’t join the union. The union uses some of that money for its political pursuits, supporting candidates and running campaigns. The non-member workers resent this. Because they don’t belong to the union, they have no right to vote on what causes the union will support, but their money is still confiscated from them and spent to support these campaigns. Washington state has passed a law that requires unions to get permission from these workers before it can use their money for political purposes.

The Washington Supreme Court somehow found in favor of the union. It ruled that getting people’s permission to use their money for political purposes is unconstitutionally burdensome. The U.S. Supreme Court must reverse the state court. The First Amendment guarantees Americans the ability to support only their own political views. The union’s scheme violates that freedom by forcing workers to support the union’s views unless they take steps to stop it. The state law doesn’t interfere at all with the union’s rights. The union can still support all the political activity it wants using its own money. But if it wants to use non-members’ money, it should be forced to get permission. First Amendment rights are endangered in this case, but it’s the workers’ rights, not the union’s.


Belaboring minority rights By Dimitri Vassilaros Friday, January 19, 2007 A case argued before the U.S. Supreme Court last week could rewrite labor law and redefine minority rights for the smallest minority on Earth. The Washington Education Association, a state teachers union, actually claims the right to spend nonmember money for political purposes -- the money grabbed from the roughly 4,400 nonunion workers forced to pay dues for the privilege of the WEA negotiating on their behalf -- without getting 4,400 approvals. A 1992 state campaign-finance law requires labor unions to ask permission of nonmembers. The state Supreme Court struck down the law last year, calling it burdensome and an infringement on organized labor’s First Amendment rights. And that all but said it’s time to consider random drug tests for any justice who believes the rights of a collective abridge the rights of an individual, even one who does not want to be associated with the mob. “We are very comfortable saying there is a strong likelihood the court will uphold the law,” says Michael Reitz, legal counsel of the Evergreen Freedom Foundation, a nonpartisan free-market think tank in Washington state. The case originated in 2000 when the foundation filed a complaint against the union on behalf of nonmember teachers. He expects a decision by June. Keystone effect The implications could be enormous for the 28

“Unionism should be voluntary on all levels and Pennsylvania should become a right-to-work state,” says Simon Campbell of Bucks County. He is the president of StopTeacherStrikes Inc., a grassroots organization committed to ending teacher strikes in Pennsylvania. “Of course, that would require the Pennsylvania state Legislature to take a stand for liberty and take on the PSEA/labor movement.” Mr. Campbell believes the Pennsylvania State Education Association teachers union has “bought and paid for” most of the legislators. “The union says membership is voluntary. The way they play the game, though, is to demand agency shop from a school board, then as soon as they get it ... they send a letter to all nonunion teachers saying to the effect of ‘since you now have to pay dues anyway, you might just as well become full union members so you can have a vote on your employment contract.’ “ However, if the court rules broadly claiming a “national mandate,” all such laws could be overturned instantly, according to Mr. Reitz. “It’s also a whole free speech question,” he says. If any organization can compel you to pay dues used to pay for political speech, it would be an erosion of everyone’s free speech rights, Reitz says. The PSEA did not respond to a phone call requesting comment. Distilled essence Three insights of philosopher and writer Ayn Rand distill this case to its essence: “The smallest minority on earth is the individual” “There can be no such thing, in law or in morality, as actions forbidden to an individual, but permitted to a mob”

Pittsburgh Tribune-Review Edito-

states (including Pennsylvania) that force nonunion workers to pay union dues.


Editorials

High Court May Lessen the Political Power of Labor Unions Continued...

“The question isn’t who is going to let me; it’s who is going to stop me.”

Pittsburgh Tribune-Review Editorial

In the name of liberty, the 13 Colonies united without coercion for the collective good. But without individual freedom, the collective good is little more than an oxymoron and nothing more than an abomination.


Teachers in Court By James J. Kilpatrick January 24, 2007 Justice Clarence Thomas stayed mum, as usual, but all eight of his colleagues got into the act two weeks ago when the Supreme Court heard argument in the case of a teachers union. When oral argument ended at noon, most observers probably thought the union’s luck had run out with the clock, but these things are tough to call. The facts are not seriously in dispute. In the state of Washington, 70,000 public school employees work under an agency shop contract. All but 3,500 of them belong to the Washington Education Association (WEA). The 3,500 non-members, by law, must pay the union a fee equal to their share of the demonstrable costs of collective bargaining. They are entitled to a rebate equal to the union’s per capita outlays for other, non-chargeable, expenditures. The system sounds simple, and in theory it is. In practice, the WEA is understandably unwilling to disgorge a single penny it has collected from the “fee payers.” These are the scabs whom willy-nilly the union must represent. Thus, for a non-union teacher to “opt out” of a non-germane outlay -- say, for the cost of soft drinks at a union picnic -- the union lawyers have made a rebate procedure as difficult as they can devise. The rebates, per capita, are penny-ante. Between 1996 and 2000 they ranged only from $44 to $76 a year. In principle, they’re large. Seven years ago the free-spirited Evergreen Freedom Foundation, the National Right to Work Legal Foundation and the Washington State Public Disclosure Commission combined in suits against

the union. The plaintiffs won in a trial court, where Judge Gary R. Tabor hit the WEA with a $600,000 judgment. In March of last year, the free spirits lost in the state Supreme Court. Their appeal followed to the U.S. Supreme Court. The case was argued Jan. 10 before Chief Justice John Roberts and his colleagues. It was not a great argument, but it was a good argument. Robert M. McKenna, the Washington state attorney general, was joined by U.S. Solicitor General Paul Clement on behalf of the non-union plaintiffs. John M. West of Washington, D.C., representing the union, argued vigorously that the “opt out” procedure unconstitutionally burdens the union’s First Amendment right to engage in political advocacy. Justice Anthony Kennedy asked about the First Amendment rights of non-union teachers. West said these teachers “certainly have a First Amendment right not to be compelled to finance political, ideological and other non-germane expenditures over their objection.” Their rights, he insisted, are “fully protected.” Kennedy nodded agreeably. West continued: “When there is the availability of a ready means for opting out of the participation in financing these causes, there is no compelled speech.” Kennedy stopped nodding. He seemed to be wondering how “ready” are these “ready means” in practice, but he let it go. After a few minutes, he returned with another question: “You want us to consider this case as if the First Amendment rights of non-union members were not involved?” “Absolutely not,” West insisted. Non-members have an “absolute right” to prevent the use of their funds for any kind of political speech “simply by sending in a letter.” Justice John Paul Stevens was openly skeptical: “So it’s a First Amendment right that is waived by failing to make a timely objection?” It’s not that a right is waived, said West, but Stevens persisted: “It’s gone under your theory.” In the concluding minutes of oral argument, Justice

Syndicated

Syndicated


Editorials

Teachers in Court Continued...

Samuel Alito joined in expressing concern for the rights of teachers who have chosen not to join the union: “Isn’t it overwhelmingly likely that if you spoke to them and you said, ‘Would you like to give money to the union to spend on elections,’ they would say no?” “I absolutely disagree with you,” said West. “It’s not asking them to make a contribution. It’s asking them, Is it OK with you if your money is used for this purpose?”

Syndicated

Alito asked, “What’s the difference between asking, ‘Would you like to make a contribution,” and ‘Would you like to allow us to use (your) money that we possess for our purposes rather than returning it to you’?” “Well,” said West, “whether there is a difference or not, the point is the union is using this money for purposes that it has every reason to believe are in the interest of the vast majority of teachers.” Roberts: “Surely they get to make that decision, don’t they?” Counsel’s response appeared to be “yes and no,” an answer that earlier provoked laughter in the courtroom. Justice Kilpatrick, meaning me, left the press benches thinking that the union’s counsel had done his best -- but his best wasn’t quite good enough.


By Linda Seebach January 27, 2007 The U.S. Supreme Court heard arguments Jan. 10 on two cases out of Washington state concerning whether unions have to get explicit permission before spending workers’ money on political activities. That issue is familiar to Coloradans who remember that then-Secretary of State Gigi Dennis tried last summer to impose a rule saying that they do, only to have the state Court of Appeals rule against her. As a practical matter, that was reasonable; more than halfway through the year, and with the election only a little more than two months away, there was no way for unions to go back and “uncollect” dues money they intended to direct toward politics, get prior permission and then recollect the money. As a matter of simple fairness, though, there ought to be such a rule. Yes, workers already have a constitutional right to ask for a refund of whatever share of the fees they pay goes toward politics, but not very many of them do, and unions have no incentive to make the process easy or friendly. The Washington cases, Davenport v. Washington

Colorado Attorney General John Suthers filed a friend-of-the-court brief on behalf of Colorado and the attorneys general of Alabama, Idaho, Ohio, Utah and Virginia. He observes that states have adopted a wide range of policies in the attempt to balance workers’ rights with union interests, while conforming to the constitutional principle that workers cannot be forced to subsidize political speech they disagree with. At a minimum, in accordance with the 1986 Hudson decision, if a union is allowed to collect agency fees (for the cost of representing workers and negotiating contracts), it must provide “notice and an explanation of the fee, an opportunity to challenge it, and an escrow for disputed amounts.” If the U.S. Supreme Court overturns the Washington decision, nothing much will change, although Suthers notes that the Colorado Court of Appeals cited the Washington cases in its ruling against Dennis. However, if the Washington decision stands, all state policies more protective of individual workers’ rights than the minimum guaranteed by Hudson would be endangered. That would put right-to-work laws at risk in the 22 states that have them.

Rocky Mountain News

Seebach: Balancing rights of workers, unions

Education Association and Washington v. WEA, are actually fairly narrow, and hinge on one provision of a package of campaign finance reforms passed by state voters in 1992 that required unions to get permission - a requirement that the WEA simply ignored for years. But limited as the provision is, in 2006 the Washington Supreme Court overturned it, saying the burden of obtaining consent interfered with the union’s constitutional rights.


Editorials

Do union rights trump rights of individuals?

The Baltimore Sun

By Mike Reitz February 6, 2007 The U.S. Supreme Court recently heard oral arguments in the consolidated cases of Washington vs. Washington Education Association and Davenport vs. WEA, which could have major implications for organized labor and the freespeech rights of workers nationwide. Organized labor’s numbers have been plummeting for decades. The U.S. Department of Labor reported in January that the number of union members is at a record low. Over the last year, the percentage of union workers has declined in 31 states. Today, only 12 percent of workers are members of a union, compared with 35 percent in the 1950s. As a result, labor unions fight any common-sense measures that give workers a choice whether to pay dues.

and a group of concerned teachers appealed the cases to the U.S. Supreme Court. The Supreme Court has held that workers cannot be forced to pay for a union’s ideological activities in several landmark cases, including Abood vs. Detroit Board of Education and Communications Workers of America vs. Beck. Typically, workers have an opportunity to object to a union’s spending and can get a refund of dues. The unique question in the Washington cases, however, was whether states can require unions to get permission before spending dues on politics. If the questions from the justices are any indication, the court could be poised to issue a ruling that reshapes national labor policy. The WEA claimed the requirement to get permission imposed an “insurmountable hurdle” that “cuts deeply” into the rights of the union. Justice Anthony M. Kennedy repeatedly scolded the union lawyer for ignoring the rights of teachers. “You begin by talking about the First Amendment, but you proceed as if there are no First Amendment rights of workers involved at all,” he said. At least four justices asked how the Washington law could be unconstitutional when past court decisions have allowed even broader regulation of unions. When the WEA lawyer replied that nonmember rights are “fully protected” under current case law, Justice David H. Souter asked, “Why can’t the state protect it more?”

The cases before the Supreme Court came out of Washington state, where workers can be required to pay union dues as a condition of employment. In 1992, the state passed a law requiring unions to get permission from these nonmembers before using their mandatory dues on political activity. The Washington Education Association (WEA) ran afoul of this law in 2001 after my organization, the Evergreen Freedom Foundation, filed a complaint with the state attorney general. A trial court fined the WEA $590,375 for its intentional violations. Amazingly, the state Supreme Court threw the law out as an “undue administrative burden” on the union’s free-speech rights.

The WEA lawyer argued that the law is flawed because it regulates only unions, leaving corporations and trade associations untouched. The justices seemed to reject this argument. The union doesn’t own the funds, pointed out Justice Ruth Bader Ginsburg. “If the nonmember wants it back, the nonmember would be entitled,” she said.

Washington Attorney General Rob McKenna

Chief Justice John G. Roberts Jr. appeared to agree that teachers should have final say: “Well surely,

Justice Antonin Scalia was even more forceful. Unions are given “extraordinary power to exact funds from people,” he said, “but only for certain purposes. ... The state says, however, you will not use this money for this purpose without their consent.”


they get to make that decision, don’t they? Under the statute, it’s their decision.” Arguing in favor of teachers’ rights, Mr. McKenna summarized the issue vividly. These individuals have resigned from the union, and it’s reasonable to assume they don’t want their money spent on the union���s political priorities. “Nonmembers should not be required to say no twice,” he said.

The Baltimore Sun

If the Supreme Court rules in favor of the teachers, union officials will have to learn a lesson every first-grader is taught: You must ask permission before taking something that does not belong to you.


Editorials

unconstitutional when past court decisions have allowed even broader regulation of unions. When the Washington Education Association lawyer replied that nonmember rights are “fully protected” under current case law, Justice Souter asked “why can’t the State protect it more?”

Unions in the Dock

The New York Sun

By Mike Reitz March 14, 2007 By June, the United States Supreme Court will rule whether unions in Washington state may use funds of nonmembers on political activity. Meanwhile, lawmakers in the Washington Legislature are attempting to undermine the teachers who are bringing the case. In Washington state, while no one is forced to join a union, nonmember workers can be required to pay “agency shop” fees if a union represents their workplace. But, according to state law, unions must get permission from individual nonmembers in order to use those mandatory fees for political purposes. The law protects nonmembers from involuntarily funding political activity, particularly if they disagree with the union’s agenda. The Washington Education Association ran afoul of this law in 2001 when a trial court fined the union $590,375 for violations to which the union stipulated. The union appealed. The state Supreme Court ruled that the law was unconstitutional, that the unions could use fees for political purposes without getting the permission of individuals, and that it was too burdensome on the union to obtain such permission. Then the state attorney general appealed to the U.S. Supreme Court in January, consolidating his case with that of a group of concerned teachers seeking to recoup their union fees. The questions of the U.S. Supreme Court justices indicated a possible ruling in favor of the law limiting use of nonmembers’ fees. At least four justices asked how the Washington law could be

Justice Kennedy repeatedly scolded the union lawyer for ignoring the rights of teachers. He said, “It seems to me that Washington acted quite properly in saying we will use this mechanism in order to protect our workers’ First Amendment constitutional rights.” Most of the other justices seemed to agree. At the close of the hearing, most legal experts predicted a win for individual teachers. The bill before the Washington Legislature, drafted by the Washington Education Association in anticipation of an adverse ruling from the U.S. Supreme Court, would allow unions to use nonmember workers’ money on political activity without getting permission from individuals. The legislation provides that agency fees — the dues of nonmembers — are not considered as used for political purposes if the union has income from other sources to cover the political expenses. If, for example, agency fees comprise about 10% of a union’s overall funds, the legislation would permit a union to use up to 90% of its funds on political activity without obtaining individuals’ permission, for technically, the union is not touching the money of nonmembers. This effort demonstrates the lengths to which union officials will go to avoid accountability to their members. Perhaps for good reason, as organized labor’s numbers have been plummeting for decades with the U.S. Department of Labor reporting in January that the number of union members is at a record low. The union claims the state legislation will make it easier to comply with the law. But relying on the scofflaw union to define compliance is like asking Enron to write good accounting procedures, or having Bobby Knight teach an anger management course. Further, the sponsors attached an


Since when is bailing out union bosses a state emergency? This bill demonstrates an appalling contempt for the free speech rights of teachers and other workers. The union claims the law is “murky,” when actually any first-grader could understand it: You must get permission first before taking something that doesn’t belong to you. Workers should not be forced to pay for political activity against their will.

The New York Sun

emergency clause to the bill, which allows the legislation to take effect immediately and insulates it from a people’s referendum. In Washington state, voters may repeal acts of the Legislature in a referendum. The clause states: “This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions.”


Editorials

Paycheck Protection End Run

The Wall Street Journal

May 17, 2007 Washington State Governor Christine Gregoire pulled a fast one last Friday when she quietly signed a bill that guts a state paycheck protection law currently being debated in a case before the U.S. Supreme Court. Passed by initiative in 1992 with 72% support, the law prevents unions from using dues from nonmembers for political activities without their consent. The state teachers union, the Washington Education Association (WEA), has challenged the law, and last year the High Court accepted the case. To mitigate a potential ruling against the union —

which they apparently anticipate — Ms. Gregoire and fellow Democrats in the state legislature rammed through amendments to the law that they hope will make any decision moot. Under the new provisions, unions can employ accounting tricks that virtually guarantee they will never need to seek permission for political spending. And as an additional slap in the face to voters, lawmakers attached a bogus “emergency” clause to the bill that insulates it from future referendum challenges. What’s driving Big Labor’s vehement opposition to paycheck protection is obvious. A year after Washington implemented its law, voluntary teacher contributions to the WEA’s political action committee dropped by 85%. Utah adopted paycheck protection in 2001, and in no time the Utah teachers union saw a similar drop-off in PAC contributions. “You should only be as strong as the support behind you,” says Michael Reitz of the Olympiabased Evergreen Freedom Foundation, “and it shouldn’t be artificially inflated with coerced donations.” But until the courts say otherwise, labor unions will get away with coercing cash at will.


Friday, June 15, 2007 High court rules union cannot spend dues on politics without members’ consent The U.S. Supreme Court unanimously and correctly ruled on Thursday that states may force public-sector labor unions to get consent from workers before using their fees for political activities. The Washington Education Association limped out of this woodshed unrepentant and defiant. But the Evergreen Freedom Foundation, which has long challenged the teachers’ union, hailed the ruling as a resounding victory for workers whose hardearned money must not be diverted for partisan political matters without their consent. State Attorney General Rob McKenna correctly called the ruling “an important victory for the First Amendment rights of workers in Washington ? Workers who have already said ‘no’ to joining a union should not be required to say ‘no’ a second time to prevent their money from being spent for political purposes.” The court ruled only on a narrow issue: It would not be an unconstitutional burden on a union if the state insisted that it require teachers to opt in to such use of their dues rather than simply allow the teachers to opt out. WEA officials on Thursday predictably chose to obfuscate the issue with meaningless rhetoric and spin about opt-in vs. optout and what role the Legislature ought to play in this issue.

He should know. This year Chandler winced as the Democratic-controlled Legislature cobbled together House Bill 2079, which allowed labor unions to spend nonmembers’ bargaining fees on political causes without their permission. The bill was signed by Gov. Chris Gregoire, who ironically as attorney general in 2000 led the state’s legal effort to prevent such a practice. That bill contradicted what 72 percent of voters said in 1992 when they passed Initiative 134, which was meant to prevent unions from spending mandatory dues on political causes without the dues-payers’ consent. As it turned out, the bill doesn’t matter. Justice Antonin Scalia, writing for the court, stated that Thursday’s ruling was not impacted by HB 2079. Despite the thrashing, the WEA will drag the matter out, desperate in a fight that has included $590,000 in unpaid fines against the union: “All along we’ve sought clarification on this murky, poorly written statute,” declared WEA President Charles Hasse. “Based on this ruling, it appears that the Washington (state) Supreme Court must now clarify the intent of the statute as it stood when this lawsuit was filed.” What part of 9-to-0 (Thursday’s ruling) do union officials not understand? What part of “without consent” needs clarification? Would the union like for its hard-earned money to be spent in ways which it might abhor, and without its consent? Of course not. Then why can’t the union extend that same right to its own members? This issue likely will come up again in the Legislature and in the courts. This fight is not over, although it sure ought to be.

The Columbian

In our view: Victory for Teachers

But as state Rep. Bruce Chandler, R-Granger (whose district includes part of Clark County) said, “Being a public employee does not mean surrendering your freedom to decide for yourself who you will support or oppose.”


Editorials

Workers Get To Say No To Labor Bosses

Investors Business Daily

June 15, 2007 Labor: The U.S. Supreme Court ruled Thursday that unions may not spend nonunion workers’ fees for political purposes without the workers’ permission. Now the question is, will the unions obey the ruling? In a unanimous decision, the court upheld a Washington state law that said public employees who do not join a union must still pay the union for its collective bargaining efforts. But none of the dues paid by those employees can be used for the union’s political activities unless it is, the court said, “affirmatively authorized by the individual.” The court’s decision overturns the Washington Supreme Court’s ruling that the law was a burden to the Washington Education Association’s free speech rights. That law had been in effect since 1992, but it was recently changed while under constitutional review by the U.S. Supreme Court by a legislature and governor’s office controlled by Democrats.

Given that, it’s likely that the U.S. Supreme Court’s ruling will be ignored by the unions and they will continue to use nonmembers’ fees for political projects, which disproportionately serve Democratic candidates and policies. Those who track campaign finance find that unions typically put at least 90% — and often more — of their political dollars on Democrats. That doesn’t count the almost immeasurable millions in in-kind support Democrats get when union staffers take paid time off from their jobs to “volunteer” on Democrats’ campaigns, working the phones, organizing rallies, helping with direct mail and providing research, among other duties. While testifying before the U.S. Senate in 2000, Leo Troy, a Rutgers economics professor, noted that the Democratic Party has habitually provided unions with “political operatives whose salaries are paid by the unions.” In the 1995-96 presidential cycle that he studied, Troy found that “the total value of unions’ political contribution was worth $400million,” with $300 million of it coming from in-kind assistance. Almost all of the $400 million, he said, went to Democrats. Writing the 9-0 opinion, Justice Antonin Scalia noted that “Our analysis of whether (the original law’s) affirmative-authorization requirement violates the constitutional rights of respondent is not affected by the amendment” that recently became Washington law.

It seems they were anticipating the decision going against the WEA and wanted to end run the Supreme Court ruling. The new law sets it up so that unions will, in effect, no longer be required to get nonmembers’ permission to use their fees for political purposes.

That being the case, the union, which violated the law repeatedly, is still responsible for the fines it incurred under the old law. Those fines total more than $500,000. That does not include a $430,000 fine for evading the 1992 state campaign finance law that the WEA, a repeat offender, agreed to pay in 1998.

It also ensures that the issue will be further tangled up in the courts, letting the union continue using nonmembers fees for its political activities.

While labor bosses scheme to keep alive a practice that Scalia called an “extraordinary benefit” to unions, fair-minded lawmakers across the country


now have an opportunity, based on the Supreme Court ruling, to pass legislation to strengthen nonmembers’ right to make sure their dollars aren’t used for political purposes.

“Workers who have already said ‘no’ to joining a union,” says Washington Attorney General Rob McKenna, who argued the case for the state, “should not be required to say ‘no’ a second time to prevent their money from being spent for political purposes.” There’s no guarantee that the unions will take that second “no” for an answer — and, in fact, there’s good reason to believe they won’t. If they insist on playing that way, then lawmakers need to end their freedom to automatically deduct union dues from members’ checks. Make the unions get signed and notarized permission from members before they can take a dime

Investors Business Daily

The burden for getting permission from nonmembers to use their fees in partisan efforts should be placed squarely on unions.


Editorials

taken pains to resign. Thursday’s ruling says, in effect, that respecting workers’ rights may be a burden, but that’s just too bad.

Slapdown of WEA June 15, 2007

The Seattle Times

The 9-0 slapdown of the Washington Supreme Court by the U.S. Supreme Court Thursday in Davenport v. Washington Education Association is evidence that our state court has been too deferential to political interests — in this case, unions. Under federal labor law, employees can resign from a union but still be represented by it. The union can charge them an “agency-shop fee” for representing them but it cannot charge them for political campaigns without their permission. The argument was about how to get that permission. Our rule had been passed as a ballot initiative in 1992 with a 73 percent yes vote of the people of Washington. Under that law, the union could not use nonmembers’ money for politics “unless affirmatively authorized by the individual.” That is, the nonmember had to opt in, else the WEA could not use his money for politics. The WEA argued that it should be able to use the nonmember’s money unless he opted out by filling out forms twice a year. In 2006, the Washington Supreme Court agreed with the union. In a 6-3 ruling (supported by justices Bobbe Bridge, Tom Chambers, Faith Ireland, Charles Johnson, Barbara Madsen and Susan Owens) the Washington court said having to ask each nonmember for permission was so much of a burden on the union that it violated its right of free speech. This was an amazing argument, because it was not about the union’s right to use its members’ money for political speech. It was about using nonmembers money — people who had already

Justice Antonin Scalia, writing for all his colleagues, including the court’s liberals, dismissed “the mistaken rationale of the Supreme Court of Washington” by saying the money, and the rights, belong to the worker.


June 15, 2007 In a rebuke to the coercive tactics of Big Labor, the Supreme Court ruled yesterday that states may require unions to get permission from nonmembers before using their dues money for political activities. The decision is especially timely, given that next week Senate Democrats are scheduled to vote to eliminate secret-ballot elections for union organizing. Yesterday’s decision stems from a suit in Washington state, where voters in 1992 adopted a paycheck protection measure that said employees must actively assent to having their mandatory dues spent on politics. The Washington Education Association -- the main teachers union -- claimed the law violated its free speech rights under the Constitution, and the creative Washington Supreme Court struck the law down. The U.S. Supremes disagreed, and then some. Writing for a unanimous majority, Justice Antonin Scalia said flatly that the law “does not violate the First Amendment” and that “unions have no constitutional entitlement to the fees of nonmember employees.” Justice Scalia said this “modest limitation” on how unions can spend dues is perfectly reasonable, especially given that states could go much further and ban the collection of dues altogether if they chose. The ruling won’t make much of a dent in union coffers, since they can still compel dues from nonmembers for collective bargaining. But about 20 states have laws similar in concept to Washington’s, so this ruling could have some impact nationwide. As more U.S. workers have refused to join unions, Big Labor has become more reliant on coercion, and Democrats are trying to make that arm-

The Wall Street Journal

Protecting Your Paycheck

twisting easier. House Speaker Nancy Pelosi made passing the union organizing law -- which goes by the wonderfully inaccurate Employee Free Choice Act -- one of her first orders of business earlier this year. Senate Democrats are expected to follow suit. President Bush has vowed to veto the bill, but it’s also encouraging that the Supreme Court has now rejected this union ploy of dues coercion disguised as “free speech.”


Editorials

Slapdown of WEA June 16, 2007

Rocky Mountain News

So, former Colorado Secretary of State Gigi Dennis may not have been the lawless partisan that her political enemies, and to some extent the state courts, made her out to be last year. It is perfectly OK to require unions to get permission from workers before spending their dues on political activity, the U.S. Supreme Court said this week in a unanimous decision. Yet when Dennis ruled that unions obtain permission annually from every member before making donations to political campaigns from their “smalldonor” committees, the outcry was such you’d have thought she’d raided Fort Knox. We agreed with critics that she acted without sufficient public debate, but we never doubted the basic good sense of her decision. Nevertheless, the courts went against Dennis, with the state appeals court making the absurd argument that “(The secretary’s rule) effectively denies the First Amendment rights of the majority of union members for the benefit of dissenting members.” Memo to the court: The First Amendment protects an individual right to free speech, not the right of a majority to bully a minority into subsidizing speech it doesn’t like. In its opinion, the appeals court actually cited the Washington state court’s opinion that has now been struck down. That case had to do with whether the teachers’ union could spend workers’ money on the union’s political goals without getting their permission first.

The Washington case is not precisely on point for Colorado, since it involved a union spending funds from non-members forced to pay “agency fees.” But it extends a long line of cases guaranteeing that workers cannot be required to give financial support to causes they oppose. How states go about guaranteeing that right, however, is not up to courts to decide, Justice Antonio Scalia wrote. That sentiment might have come directly from a friend-of-the-court brief prepared by the Colorado attorney general’s office in November 2006, which was joined by five other states. It made the point that states have chosen different ways of addressing the tension between the sometimes conflicting goals of workers and unions. Had the Washington decision been upheld, the brief argued, many duly enacted state laws would been put at risk. Another argument from the brief was that the Washington ruling turned prior U.S. Supreme Court decisions upside down. What the high court intended to be the minimal safeguards for workers’ rights would become the maximum protection any state would be permitted to enact. Scalia seemed to buy that argument, too. Last week’s ruling won’t make much difference in Colorado, since this legislature isn’t about to approve a bill lessening union influence in politics. Still, we welcome support for the principle that workers should be the ones to decide whether their dues go to support political causes. “We believe there was an important public policy question at stake in this case, and that’s what caused us to write an amicus brief,” said Attorney General John Suthers. “No Coloradan . . . should be required to contribute to political issues or candidates without their consent.” Indeed not.


Unions, dues and activism June 17, 2007 In a unanimous decision Thursday, the Supreme Court corrected an attempt by the Washington State Supreme Court to turn the First Amendment on its head for the benefit of union political activism. Unions in Washington are permitted to collect fees from nonmembers, but unions are not — according to a provision in the state’s 1992 Fair Campaign Practices Act — allowed to use the fees collected from nonmembers for political purposes without first obtaining consent. Union members have no such control over how their dues are spent. The case, Davenport v. Washington Education Association (WEA), was heard by the Supreme Court in January.

The Washington State high court declared this provision, known as Section 760, to be unconstitutional for the absurd reason that it infringes on the First Amendment rights of the union. The court argued unconvincingly that the law “regulates the relationship between the union and agency fee payers with regard to political expression and thus violates the union’s right of expressive association.” The court decided that a union “has the [First Amendment] right to use nondissenting nonmembers’ fees for political

The Supreme Court reversed the erroneous ruling. Writing the opinion, Justice Antonin Scalia concluded that, “[t]he principal reason the Supreme Court of Washington concluded that 760 was unconstitutional was that it believed that our agency-fee cases, having balanced the constitutional rights of unions and of nonmembers, dictated that a nonmember must shoulder the burden of objecting before a union can be barred from spending his fees for purposes impermissible under” a ruling from a previous agency-fee case. “Those cases were not balancing constitutional rights,” as WEA had argued, “for the simple reason that unions have no constitutional entitlement to the fees of nonmember-employees.”

Section 760, the court also noted, “is not fairly described as a restriction on how the union can spend ‘its’ money; it is a condition placed upon the union’s extraordinary state entitlement to acquire and spend other people’s money.” And this gets to the heart of the problem. The court’s unanimous ruling is a victory for commonsense jurisprudence — and for a reasonable reading of the First Amendment. But the issue of why workers in Washington, along with several other states, can be forced to pay union dues even if they chose not to join the union remains unsolved. In that sense, Thursday’s ruling provides little help for reformers in addressing that issue.

The Washington Times

purposes,” but also, confusingly, that “presumption of dissent violates the First Amendment rights of both members and nonmembers.”


Editorials

for political causes if he or she objects. In 1992, voters in Washington approved a law barring public-sector unions from using a non-member’s fees for political campaigns “unless affirmatively authorized by the individual.”

What a union is due June 18, 2007

Chicago Tribune

The 1st Amendment is a vital guarantee of the right of Americans to speak, write and worship freely. But it has often been distorted by those attempting to use it in ways never intended by the framers of the Constitution. It would be harder to find a less plausible claim than the one addressed last week by the U.S. Supreme Court, which was less about free speech than about union power. Washington is one of 28 states that give public employee unions the right to collect not only dues from members but equivalent fees from employees who decline to join. The ostensible purpose here is to prevent “free riders.” The theory is that, member or not, you are still represented by the union in contract negotiations, you still benefit from its efforts, and you therefore should cover your share of its costs. That makes arguable sense up to a point. But not all union funds go for collective bargaining. Some go to finance campaign activities on behalf of candidates. It’s obviously unfair to force workers to finance political efforts they may not agree with. In deference to that principle, the Supreme Court has previously said it is unconstitutional for public employee unions to use fees from a non-member

In 2001, the Washington Education Association, which represents 70,000 teachers and other education employees, was the target of two lawsuits claiming it ignored this requirement. The state Supreme Court sided with the union, concluding that the rule infringed on its 1st Amendment rights to spend its money as it sees fit. But last week, a unanimous U.S. Supreme Court rejected that argument. Justice Antonin Scalia, writing for the court, noted that the teachers union is able to extract fees from non-members without their consent only because the state has granted them that unusual privilege. The “affirmative authorization” law, he wrote is not “a restriction on how the union can spend ‘its’ money; it is a condition placed upon the union’s extraordinary state entitlement to acquire and spend other people’s money.” Given the involuntary nature of the transaction, it’s not too much to insist that a public-sector union get non-members’ permission before indulging its political whims. And, said the court, “no suppression of ideas is afoot,” since the union is free to advance its political ends with other funds. In other words, let people decide for themselves which candidates to support, rather than force them to underwrite the preferences of others. That’s an approach consistent with the freedoms the 1st Amendment aims to protect.


June 18, 2007 The U.S. Supreme Court has just upheld an important principle on public-sector unions first promulgated in a landmark ruling from Detroit 30 years ago: Public employees do not have to subsidize the political causes of public-sector unions. States have given unions authority to represent public employees, but not all employees have to be members of the union. Under what’s called an agency shop agreement, nonmembers do have to pay fees to cover the union’s cost of bargaining for them. But under the Supreme Court’s 1977 ruling in Abood vs. the Detroit Board of Education, the high court said the nonmembers need not have their fees directed to a union’s political activities. Washington state voters passed a law that went

The U.S. Supreme Court made short work of the lower court decision. Justice Antonin Scalia wrote acidly that “unions have no constitutional entitlement to the fees of nonmember employees.” The ruling won’t have an immediate effect in Washington state, since the initiative has since been effectively nullified by that state’s Legislature at the unions’ request. The Supreme Court didn’t say the ruling applied to private-sector unions. It left that issue to be resolved on another day. But it did give states the scope to adopt their own laws protecting the rights of government employee union members. Michigan has already done so. Its Campaign Finance Act requires all unions to get annual “affirmative approval” from members for contributions to “segregated” funds for political purposes. It’s a good principle. No one should be forced to subsidize politics they don’t agree with. The high court’s ruling has just strengthened this principle.

The Detroit News

High court ruling protects political rights

further and required unions to get explicit approval from nonmembers for political expenditures. The Washington Supreme Court, in an odd ruling, said the law violated the unions’ First Amendment rights.


Editorials

Rob McKenna on behalf of the non-members and the state law protecting them, concerned the Washington Education Association.

WEA ducks and weaves after Supreme Court loss

The Seattle Times

June 19, 2007

When the WEA could see it was going to lose, it had its friends in the Legislature pass House Bill 2079, sponsored by Rep. Joe McDermott, D-Seattle. This bill, which Gov. Chris Gregoire obligingly signed into law, says money from members and nonmembers may be put in the same account and spent on politics as long as there is enough left in the account to cover what the nonmembers paid.

The U.S. Supreme Court ruling last week on union dues clarified a piece of the law, but it did not settle the issue of how to treat people who are represented by a union but who have resigned their membership.

We understand why it was done that way: The Democrats get most union contributions, and they want large ones. But co-mingling amounts to a kind of money laundering, and the Legislature and governor never should have approved it.

It may seem odd there are such people, but under federal law, a worker has the right to resign from membership in a union but not from representation by it. In many states, including this one, a worker who resigns from a union may be required to pay it for representing him, but he may refuse to pay a share of its “non-chargeable” spending, such as donating to political causes. Last week’s case, successfully argued by Attorney General

The right way is for unions to have separate accounts for each purpose: one for labor representation and the other for politics and organizing. Everyone the union represents would pay into the first account under the same formula, but only the members would pay into the second one. That way, the rights of the nonmembers would be protected and the members could see what the optional expenses were costing them.


liberal and conservative elements on the court joined together in the decision.

Doug DeForest June 19, 2007 My uncle, Professor Henry M. Hart Jr., was a long tenured member of the Harvard Law School faculty, certainly among the nation’s best law schools. He was a widely recognized authority on constitutional law, including being the author of a book on the subject that was the definitive text used in constitutional law classes for many years at most of those same top law schools. If he were alive today, Uncle Henry would have jumped from his chair and shouted ”Hurrah!” over the decision by the United States Supreme Court last week concerning the Washington Education Association’s (WEA) use of nonmember dues money for political purposes. By 9-0 vote, the Supreme Court ruled that the WEA was wrong and the Evergreen Freedom Foundation (EFF) was right in its opposition to the WEA. Often in supreme court cases at both the state and federal levels, the winners exult and the losers take consolation if the decision was close, or they find elements to their liking in the minority report, or they imply they will do better next time around because it was a liberal court, or a conservative court, or a Bush-¬appointed court or a Clinton court. But this time, it was nine to nothing. There was no minority report. There were no grounds for criticizing presidential nominations. And both the

For the WEA, it would be nice (and set a good example) if that body were to issue a statement along the lines of, “We are disappointed but respect the decision of the supreme legal body in this country. ...” But the WEA won’t do that. Apparently trying to position himself someplace between the Supreme Court and the supreme being, WEA President Charles Haase was reported in The Olympian as saying, “Today, we are confident the courts will agree we acted in good faith.” That sounds to me like a man who is already lobbying for a less than literal application of the decision. But perhaps the biggest loser of all was the Washington state Supreme Court and, in a sense, the people of the state of Washington. We, the people, look to the state Supreme Court to uphold the Constitution of this country. This decision by the U.S. Supreme Court says very clearly (albeit not in so many words) that the six state supreme court justices voting to uphold the WEA did not understand and/or correctly apply the First Amendment to the Constitution. Perhaps those six former and current state Supreme Court justices (Bobbe Bridge, Tom Chambers, Faith Ireland, Charles Johnson, Barbara Madsen and Susan Owens) ought to go back and read Uncle Henry’s book. Doug DeForest, a consultant on local land use issues and a member of The Olympian’s Board of Contributors, can be reached at deforest2021@aol. com.

The Olympian

U.S. high court sends message to Washington jurists

The effects are huge. For the EFF, the decision was a major milestone in its continuing struggle to preserve individual freedoms. For Washington State Attorney General Rob McKenna (who argued the case before the U.S. Supreme Court) and Thurston Country Superior Court Judge Gary Tabor (who originally heard the case, ruled in EFF’s favor, and fined WEA $590,000), it was vindication of their work.


Editorials

First Amendment rights trump the unions’ rights. In the Washington case, the court found, a union may not use a non-union member’s money for political purposes without getting that worker’s approval.

Right all along

The Pueblo Chieftain

June 19, 2007 FORMER SECRETARY of State Gigi Dennis has been vindicated, at least indirectly. Last year, she underwent partisan criticism as a result of her election campaign regulation that would have required a union employee’s permission before that worker’s union dues could be used for political purposes. The regulation by Mrs. Dennis, who previously was a Pueblo West legislator, was waylaid by a Colorado state appeals court. Now, just a few months after her term as secretary of state ended, the U.S. Supreme Court has issued a 9-0 decision in a Washington state case that essentially vindicates the principle she was espousing. The Supreme Court ruled that individual workers’

This is exactly opposite the reasoning of the Colorado state court that, instead, gave greater deference to the unions’ collective rights over an individual American citizen’s freedom of political expression and association. Justice Antonin Scalia’s decision for the unanimous Supreme Court does not overturn the Colorado situation, however. The Washington case involved forcing nonmembers to pay union agency fees for politics. In Colorado, Mrs. Dennis’ proposal involved union members’ dues, not just non-member agency fees. Current Secretary of State Mike Coffman shares her view favoring individual over collective union rights, but he needs the Legislature’s approval to enforce such an election regulation. He may have difficulty, though, persuading Democratic majorities in the House and Senate to go against the unions. Even so, it doesn’t make the principle any less right.


By Tracy Warner June 19, 2007 This may be a somewhat tortured analogy, but imagine for a minute you are an employee of Washington state government. As a condition of your employment, the state requires that you purchase all your gasoline from Exxon Mobil, with a small catch. Exxon charges more than it costs to deliver the gas. It pools that excess money to finance the campaigns of state legislative and other candidates sympathetic to the views of Exxon Mobil. Some of that money goes to the very legislators who drew up the law that forces you to buy all that Exxon gasoline. This doesn’t bother most state employees, since they are Exxon stockholders and think all this political persuasion with their cash is just peachy. For those that aren’t members of this club Exxon will refund the politics fee, but only if they fill out a form and send it back. Most people don’t do it, because it’s a hassle and it’s not much money. But a few employees get riled. They sue, saying Exxon can’t spend their money to support legislators they find disgusting. It violates fundamental rights, they say, to take their money and use it for political purposes with which they disagree, especially when they are forced into this arrangement to keep their job. They want a refund. In this imaginary story the dispute goes to the state Supreme Court, where the protesting workers seem to have a solid case. But no. The Supreme Court rules that sorting out these political fees

It is considered by many to be an astonishing ruling that will not stand. The case goes to the U.S. Supreme Court, which sure enough issues an unusual, solid unanimous decision declaring that the Washington court is obviously and sadly mistaken, having ignored virtually every constitutional precedent to side with Exxon. They agree with a dissenting Washington justice, who said the court turned “the First Amendment on its head.” If this had actually happened you could expect someone to suggest the Washington court let politics sway its view of the law, and that it appeared the court’s sympathy for powerful and munificent Exxon had overcome its legal logic. People would madly question Big Oil’s extreme influence over government, even the courts. But this time it wasn’t Exxon using other people’s money for politics. In the real case it was the Washington Education Association, the teacher’s union, that had the sympathetic 6-3 ruling from the Washington court. The court said that asking permission of non-members before spending their money on politics was too great a burden for the union, and that forcing refunds might violate their rights to free speech. That is the legal logic the United States Supreme Court unanimously ruled to be off the wall. Now, some are wondering if the Washington court might have let politics seep into its legal reasoning. A Seattle Times editorial suggested as much -“too deferential to political interests,” it said. The circumstantial evidence says there is something to this, that politics is twisting the law, but there won’t be a big stink about it. The First Amendment was turned on its head for a union, not an oil company.

The Wenatchee world

Does politics twist the law?

and refunding small portions to disgruntled state workers would be entirely too much trouble for Exxon, and might detract from its political efforts, so much so that refunds violate Exxon’s First Amendment rights of free speech and free association.


Editorials

their continued employment.

Think tank’s win lessened by lawmakers

The Olympian

June 20, 2007 The Evergreen Freedom Foundation, a conservative think tank in Olympia and the nemesis of the state’s largest teachers union, scored a major victory last week when the U.S. Supreme Court ruled that the union must get permission from teachers before using their monthly fees for political activities. The unanimous verdict was a stunning victory for the foundation and a crushing defeat for the 70,000-member Washington Education Association. The court ruling has a broad reach, however, applying to all public sector labor unions, not just teachers in Washington state. “We are elated that the U.S. Supreme Court has honored the First Amendment rights of teachers by overturning the state Supreme Court’s decision,” said Bob Williams, president of the Evergreen Freedom Foundation. “This ruling will help protect nonmember teachers from having their agency fees used on union politics against their will.” Key to the case was a voter-approved state law that required unions to get permission from nonmember workers before using the mandatory fees for political work. Nonmembers are workers who don’t belong to the union, but are forced to pay a collective bargaining fee as a condition of

While on the losing end of the unanimous verdict, the teachers union might have the last laugh. Knowing that they likely would be crushed by the justices, teachers went to their Democratic friends in the governor’s mansion and Legislature earlier this year and passed a new law (House Bill 2079) that repealed the permission clause. The Supreme Court justices said that, yes, a state can require nonmembers to give their consent for the use of their fees for political purposes. The justices also said states can shift the burden to the employees, forcing them to opt out or seek a refund of that portion of their fee. That union-backed law passed by the Legislature in anticipation of the court verdict won on largely partisan votes, with the Democrats in support and Republicans opposed. Republicans used the Supreme Court decision to chastise Democrats for caving into the union. Rep. Bruce Chandler, R-Granger said, “The court ruling confirms what the voters have always understood: it is wrong to coerce employees to support causes or candidates against their will. It has always, to the voters, been an issue of fairness. Being a public employee does not mean surrendering your freedom to decide for yourself who you will support or oppose. By hastily passing the agency shop fee bill (House Bill 2079), the Legislature and the governor betrayed state government’s most basic responsibility as an employer, which is to treat all employees fairly.” As Williams said, the next step is to make sure the law is strongly enforced in this state to ensure the Washington Education Association and other unions are in compliance.


the portion of union fees that are used not for collective bargaining but for political activities. Often states have “opt out” provisions, whereby nonmembers are required to request that the political portion of their fees be refunded.

By George F. Will Wednesday, June 20, 2007 Democracy is rule by persuasion, but the unpersuasive often try to coerce the unpersuaded. Recent days have provided two illustrations of this tendency, both of them pertaining to labor unions, whose decades of declining membership testify to their waning power to persuade workers that unions add more value to workers’ lives than they subtract. Failing unions, like failing industries, turn to government for protection in the form of coercion. Failing industries have traditionally sought corporate welfare in the form of tariffs (coercion of consumers). Unions seek laws to confer what their persuasiveness cannot convince people to consent to. Last Thursday, the Supreme Court ruled 9 to 0 against the Washington Education Association (WEA), Washington state’s teachers union, which was claiming a perverse government-conferred entitlement. Five days later, organized labor and its political allies, including she who would be president, marched in Washington, D.C. They were asking Congress to deny to workers, whom unions are trying to organize, the right to a secret ballot. Both cases also illustrate the increasingly casual resort to abridgements of the rights of free speech and association. Many states, including Washington, allow “agency shop” agreements whereby unions can levy fees on public employees who choose not to join a union but are represented by the union in collective bargaining. Thirty years ago the Supreme Court held that nonmembers cannot be forced to pay

In 1992, however, Washington voters approved by referendum an “opt in” rule. Unions were forbidden to use nonmembers’ fees “to influence an election or to operate a political committee, unless affirmatively authorized by the individual” (emphasis added). Amazingly, the WEA convinced the state Supreme Court that requiring it to ask permission before using other people’s money -- for political speech that those people do not want to finance -- was an unconstitutional burden on the WEA’s right of free speech. This novel (to be polite) theory did not persuade even one of the nine often fractious justices of the U.S. Supreme Court. Speaking for the court, Justice Antonin Scalia noted that when government allows agency-shop arrangements, it creates a remarkable entitlement: It gives a private entity, a public employees union, “the power, in essence, to tax government employees.” The WEA’s complaint -- a notably brazen example of the entitlement mentality -was against the supposedly burdensome “opt in” condition placed on its exercise of that power. With understandable asperity, Scalia said: “The notion that this modest limitation upon an extraordinary benefit violates the First Amendment is, to say the least, counterintuitive.” The WEA’s whiny audacity was not more offensive than the aim organized labor tried to advance with yesterday’s march and rally in the nation’s capital. Unions were demonstrating in support of legislation with the Orwellian title Employee Free Choice Act. It would deny employees the choice of a secret ballot when voting on unionization of their

The Washington Post

Dues and Don’ts

About 3,500 of Washington state’s approximately 70,000 teachers choose not to join the WEA, which made opting out a tedious chore. To get their refund -- about 25 percent of their fees -- the nonmembers had to follow procedures detailed in six pages of arcane instructions.


Editorials

Dues and Don’ts Continued...

The Washingtion Post

workplace. Instead, union organizers would use the “card check” system, which allows them to pick the voters they want: Once a majority of workers -exposed one at a time to face-to-face pressure from union organizers -- sign a union card, the union is automatically certified as the bargaining agent for all the workers. The Supreme Court has said that the card-check system is “admittedly inferior to the election process.” Hillary Clinton, who has given herself a makeover as a moderate, and who was elected by secret ballots, and who hopes that next year voters will use their secret ballots to give to her the power to nominate Supreme Court justices, nevertheless toes labor’s line when she advocates abolishing workers’ right to a secret ballot. Abolition, she says, will “create a fair and level playing field between workers and employers.” When in March the House passed card-check legislation for unpersuasive unions, a principal sponsor was Rep. George Miller (D-Calif.), who in 2001 wrote, with 15 colleagues, to Mexican officials, on behalf of the rights of Mexican workers, insisting “that the secret ballot is absolutely necessary in order to ensure that workers are not intimidated into voting for a union they might not otherwise choose.” Now, that is persuasive


By Elizabeth Hovde June 21, 2007 If the Washington Education Association truly put teachers and students first, they’d be cheering a recent U.S. Supreme Court decision along with the rest of us. The court stood up for teachers’ free speech rights. Instead, the union is decrying last week’s 9-0 ruling, calling the state law that was before the court “seriously flawed,” and vowing to pursue more ways to get its way, despite what individual teachers want. There is nothing flawed about getting permission from educators before spending their paychecks on politics with which they might disagree. Only a bully would see things differently. The only flaw in asking for permission before sending teachers’ dues to political campaigns is that it slows the union down in its effort to weigh in on everything from pregnancies to the presidency. What some educators have demanded, and what the U.S. Supreme Court rightly affirmed, is that the union ask for permission before spending any portion of a teacher’s paycheck on politics without his or her permission. The union shouldn’t have its hands on those dollars in the first place, but until state lawmakers find the courage to stand up to the Democrat-financing machine that is the teachers’ union and end mandatory unionism in Washington state, the union will have its way with teachers’ hard-earned money, even the money of teachers who say they would rather not affiliate with the union’s political stances.

This is the crux of the issue. Mandatory unionism is undemocratic and any confusion or flaws that the union cites could be fixed if the WEA would simply become a voluntary organization. What’s the union afraid of? That teachers are smart enough to figure out that the hundreds of dollars they are forced to send the union each year in compulsory dues would be better off in their own pockets. Solutions rest with Legislature Teachers can rally lawmakers for more pay without an overbearing, expensive union. The majority of the state Legislature is all about finding a way to do even better by educators, with or without union pressure. If lawmakers can’t produce what teachers would like to see, it isn’t for a lack of desire. The fact is, educating every child in Washington state is super expensive. More than half of the state budget goes toward financing public education, and asking taxpayers for even more is tricky. But the Legislature and Gov. Chris Gregoire are doing their best for education. And they’d do their best even if there were no union. Why? Because lawmakers have kids. Because lawmakers are business owners and community members who understand the value of an educated populace. And they understand that well-paid, well-treated teachers are happier in their jobs and thereby more effective. What lawmakers aren’t so good at is standing up to the WEA. They must be afraid of the union and the thousands of votes it influences with its relentless misinformation campaigns and vilifications of all things Republican or conservative. That leaves

The Columbian

Court gives teachers union its due

Siding with Washington’s paycheck protection law, Justice Antonin Scalia wrote for the unanimous court that “what matters is that public-sector agency fees are in the union’s possession only because Washington and its union-contracting government agencies have compelled their employees to pay those fees,” and that “agencyshop arrangements in the public sector raise First Amendment concerns because they force individuals to contribute money to unions as a condition of governed employment.”


Editorials

Teachers in Court Continued...

Washington educators stuck with union dues as a condition of employment.

The Columbian

The WEA should go voluntary voluntarily. That’s one way to keep itself out of court. But instead, it continues to put itself above workers it claims to represent. Consider its effort this year to see House Bill 2079 passed. The bill attempted to mitigate a U.S. Supreme Court ruling against the WEA and allow the union more leeway with educators’ dues. The bill was signed by Gregoire, who should be ashamed of her approval. It’s a reversal. When she was attorney general she stood against such practices, siding with free speech rights and the vast majority of voters who in 1992 voted for Initiative 134 - the protective measure that has been challenged in the courts, the protective measure vindicated by all nine U.S. Supreme Court justices, the protective measure the union continues to defy.


the country. Its success there institutionalized the restless and uncertain relationship between organized labor and government.

James McCusker June 24, 2007 Nostalgia for simpler times is natural. There are even people today who say they prefer the simplicity of the Cold War to today’s uncertainties. In their view, things were easier to figure out then; it was them against us. Those who lived through the Cold War might argue that its joys, and even its simplicity, have been exaggerated. Still, we cannot deny that we now live in a time where simplicity is hard to find. In economics, for example, analyzing organized labor’s impact is no longer simple. Not too long ago, economic theory could characterize labor unions simply as market-inefficient. Unions restricted the supply of labor to raise wages for its members. This not only reduced employment and output but also raised prices for consumers. As a society, we might decide that the unions’ market inefficiency was offset by the value of higher wages and better working conditions. But that did not change the economics or make the costs go away. We accepted the often-invisible costs as part of the tradeoff. Life, like economics, was simpler then. The costs became more visible, and more painful, in the 1970s, when American industries began to feel the heat of global competition. Organized labor, its numbers in decline, shifted the main thrust of its efforts to the public sector and there it successfully organized police officers, firefighters, teachers and other government workers across

The government sector, though, enjoys an Oz-like separation from the competitive realities faced in the private sector. As a result, when public-sector unions came to dominate the labor movement they became very active in the area that government understands best: politics. One of the byproducts of labor’s expansion into the public sector was the “agency-shop agreement” where state legislatures authorize unions to collect fees equal to dues from nonmembers. This is not a big issue when proceeds are used to cover the costs of collective bargaining and membership expansion. It is a problem, though, when the funds are used to promote political causes with which the nonmember workers disagree. And, in a pattern so familiar to us all, this problem led first to a law, and then a lawsuit. The U. S. Supreme Court ruled on the matter on June 14th, in the Davenport et al, v. Washington Education Association case. It found that Washington State’s Fair Campaign Practices Act’s provision restricting the use of nonmember fees by public-sector unions is constitutional. The Court’s unanimous opinion stated, “We hold that it does not violate the First Amendment for a State to require that its public-sector unions receive affirmative authorization from a nonmember before spending that nonmember’s agency fees for election-related purposes.” The ruling was described in some news media as a “slap down” of the Washington teachers union and, by implication, public-sector unions in general. And it was certainly a pointed reminder to public-

The Herald

Rulings could stem public-sector union actions

There is no doubt that the unions’ political success in promoting pro-labor workplace laws contributed to their difficulties in gaining new members in the market-driven private sector. Why pay union dues to gain workplace treatment - overtime, minimum wages, etc. - already guaranteed by law?


Editorials

Teachers in Court Continued...

sector unions that they cannot, like the WEA, ignore laws they don’t like simply by claiming that they inhibit their free speech.

The Herald

But in many respects the decision targeted our state Supreme Court as much as the union. When the opinion noted parenthetically that, “...the First Amendment does not require the government to enhance a person’s ability to speak,” the sarcasm was clearly aimed at our high court in Olympia. It is one thing for a defendant to concoct a preposterous legal argument; quite another for the highest court in the state to validate it. Our state’s Supreme Court seems intent on pursuing a legal approach that tends to undervalue the expressed wishes of the electorate and includes a special disregard for the initiative process. The fact that our state’s Fair Campaign Practices Act had its origins in a statewide initiative may have been a factor in our high court’s ill-considered and now vacated ruling. What the legacy of this latest U.S. Supreme Court decision on the teachers union will be is not certain. But there are at least twenty states that have “agency-shop” laws covering public-sector unions, and the ruling could have a profound effect on organized labor’s political activities. Unions wielding political power aren’t exactly new, but the shift from private enterprise to the public sector still has economists off balance, for the economic issues are often buried under political agendas. It was simpler when the coal miners or the auto workers wanted more money. But that’s just nostalgia, isn’t it. James McCusker is a Bothell economist, educator and consultant. He also writes “Business 101” monthly for the Snohomish County Business Journal.


June 17, 2007 Thomas Jefferson rightly explained that “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors is sinful and tyrannical.” Who could deny such words? Who among us would want our money taken from us and used to aid political groups and to advance political ideas that we find offensive and abhorrent? Fortunately, the U.S. Supreme Court, in a unanimous decision Thursday, upheld the words of Jefferson in ruling against a Washington state public employee union that used compulsory union dues for political causes without first getting the approval of the dues-payers. The ruling is a landmark case that should give impetus to the struggling nationwide movement for “paycheck protection” laws that require unions get such approvals. In 1992, Washington state voters passed such an initiative. Workers can resign from a union but those unions are still allowed to collect dues from former members to pay solely for collectivebargaining activities, but not for political purposes. Before the initiative passed, workers had to opt-

The Washington Education Association filed a lawsuit that made the claim that to get permission was an infringement on its constitutional freespeech rights. The Washington Supreme Court actually bought that preposterous argument, but the nation’s highest court fortunately wouldn’t stand for it. “That was an amazing argument, because it was not about the union’s right to use its members’ money for political speech,” wrote the Seattle Times in an editorial Friday. “It was about using nonmembers money – people who had already taken pains to resign.” “Unions have no constitutional entitlement to the fees of nonmember employees,” wrote Justice Antonin Scalia, who wrote the primary opinion. Chalk it up as a victory for common sense and for the Evergreen Freedom Foundation, an Olympiabased free-market think tank that had fought this battle for a decade. The group’s president, Bob Williams, called the decision a victory for the First Amendment. The National Right to Work Foundation, while applauding the substance of the ruling, was disappointed that the court didn’t use the opportunity to overturn the idea of compulsory unionization. We, too, would like to see an and to compulsory unionization, but that doesn’t take away from the importance of the court’s decision limiting the ability of unions to force nonmembers to pay for political causes they oppose.

The Orange County Register

Supreme Court aids ‘paycheck protection’ movement with ruling in Washington case.

out of the system, but after its passage the union needed to get affirmative approval. There’s a significant difference between the two processes. Those who have to opt-out face hurdles from the unions, which have every incentive to make it as difficult as possible for anyone to opt-out. The opt-in system is far more consistent with the Jeffersonian approach.


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News Stories

Court rules in favor of unions over fees

The Seattle Times

By Curt Woodward March 17, 2006

“This is an open-door inviting all unions in the state to spend nonmember dues however they want,” said Mike Reitz of the Evergreen Freedom Foundation, a conservative think tank. The law regulates the way unions can spend fees paid by workers who don’t join the group. Those workers still can be charged fees by the union to help pay for labor negotiations that affect them. But they can’t be forced to pay for the union’s political activism.

OLYMPIA — Labor unions don’t need specific permission from nonmembers to spend those workers’ bargaining fees on political causes, the state Supreme Court ruled Thursday.

In the WEA, nonmembers who don’t support union politics can ask for a partial refund of those fees. Workers who don’t respond to the refund offer pay the full fee.

The 6-3 decision drew cheers from the state’s largest teachers union, which was sued by the state in 2000 for violating the law. Charles Hasse, president of the Washington Education Association, called it “yet another reaffirmation of educators’ political rights.”

The WEA’s opponents, however, argued that an initiative passed in 1992 requires unions to get a yes-or-no reply from each nonmember.

The union’s opponents were disappointed.

The court said forcing the union to get permission from each nonmember would be an unconstitutional burden on the union’s free-speech rights.


State asks Supreme Court to rule on union fees case Attorney General Rob McKenna is appealing to the U.S. Supreme Court a state high court ruling that broadened labor unions’ ability to spend nonmembers’ bargaining fees on political causes. At issue is a March decision from the state Supreme Court, which ruled 6-3 that the Washington Education Association did not have to get special permission to spend nonmembers’ union fees on politics. The decision overturned a law approved by voters in 1992. Majority justices said forcing the union to get permission from each nonmember would be an unconstitutional burden on the union’s free speech rights. The three-member minority, however, said the ruling “turns the First Amendment on its head.” Washington state’s petition to the U.S. Supreme Court claims the state court decision conflicts with three prior court cases upholding similar laws, McKenna said in a statement Wednesday. The high court is not expected to decide whether it will take the case until early October, McKenna said. The National Right To Work Legal Defense Fund, a Virginia-based anti-union group, also said it was appealing the state court decision. The WEA, the state’s largest teachers union, was sued by the state in 2000 and accused of violating the campaign finance law.

The News Tribune

June 15th, 2006


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lower federal court decision that struck down the statute overturned “an unclear, flawed state law” and “defended educators’ right to be involved in politics.”

Union Foes Seek High Court Ruling on Dues for Politics

CNS News.com

By Randy Hall August 28, 2006 (CNSNews.com) - Numerous conservative groups are asking the U.S. Supreme Court to reinstate a Washington state law that requires unions to get permission from non-union employees before spending their mandatory dues on political causes and activities. “No one should be forced to pay for political causes they disagree with,” said Michael Reitz, director of the Labor Policy Center with the Olympia, Washington-based Evergreen Freedom Foundation (EFF). “Unions must learn a lesson every first-grader does: You must ask permission before taking something that does not belong to you.” EFF filed an amicus brief asking the U.S. Supreme Court to address the issue. The group is bypassing the lower federal courts because of the case’s potential impact on the First Amendment rights of teachers throughout the country.

The conflict began in 1992, when state voters approved Initiative 134 by 72 percent. The measure stated: “A labor organization may not use 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.” Reitz told Cybercast News Service that “in 2000, a number of teachers came to our organization and expressed concern that violations of the law were occurring, and they were concerned that their dues were being used for politics and they weren’t being asked permission before the money was spent.” “We did a little bit of investigation,” Reitz noted, and the EFF filed a formal complaint that August with the state attorney general’s office, alleging that the union had broken the law. After an investigation by the Public Disclosure Commission, the legal counsel for the WEA signed a document stipulating “multiple violations” of Initiative 134, and then-Attorney General Christine Gregoire - a Democrat who was elected governor of the state five years later - filed a lawsuit against the union on Oct. 9. On July 31, 2001, the Thurston County Superior Court ruled that the WEA “intentionally” ignored the law and imposed a $590,375 penalty on the union.

The brief is co-sponsored by the American Legislative Exchange Council, the Commonwealth Foundation, Georgia Public Policy, the James Madison Institute, the Mackinac Center for Public Policy, the Nevada Public Research Institute and others.

The WEA appealed the case to Washington’s Court of Appeals. In a 2-1 ruling on June 24, 2003, the court ruled that portions of Initiative 134 violated the First Amendment of the U.S. Constitution, stating that “the burden of objection” rests with the non-union employee, not with the union.

Charles Hasse, president of the Washington Education Association (WEA) - the state affiliate of the National Education Association - said the

On appeal to the state Supreme Court, the WEA again argued the law was unconstitutional, and the court again agreed. In the March 16, 2006,


But in his dissent, Justice Richard Sanders noted that the ruling “turns the First Amendment on its head to invalidate a state statute enacted to further protect the constitutional rights of non-union members who are required to pay agency fees as the price of their employment.” Also, more than 4,000 nonunion teachers represented by the EFF and the National Right to Work Legal Defense Foundation filed a class action lawsuit against the WEA to recover their dues. Davenport v. WEA was consolidated with the state’s case against the union and dismissed by the Washington Supreme Court, though both cases are being appealed. On the WEA website, Association President Hasse stated that Initiative 134 was “an unclear, flawed state law” that was “written and promoted by EFF President Bob Williams.” Hasse added that “the WEA has consistently sought to fully comply with all state and federal regulations” and “is scrupulous in its efforts to follow the law.” Reitz noted that union officials “claim to their membership that they don’t spend dues on political purposes and claim they never broke the law,” but

“in court, they admitted multiple violations.” In addition, the WEA “avoids all efforts to regulate getting permission from members” because “the membership typically doesn’t approve of their political advocacy,” Reitz argued. “When the law went into effect here in Washington state, voluntary teacher contributions to their political action committee dropped by about 85 percent,” Reitz added. Union officials “know that when they give the membership an option of whether or not to support their political advocacy, teachers and other union members typically decline to support that and would rather just to hold onto their money,” he said. “If they want to spend money on politics, they can give political contributions to the candidates of their own choosing,” Reitz said. The outcome of the lawsuits could have national implications, Reitz warned. The Washington State Supreme Court decision could be used to invalidate worker protection laws in 27 states affecting more than 17 million union-represented workers across the nation. “We hope the Supreme Court will take up the case and deliver justice for teachers all around the country,” he concluded.

CNS News.com

decision, former Justice Faith Ireland wrote that requiring unions to ask permission every year before spending non-member dues on political activity was “too heavy an administrative burden.”


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The court ruled that current protections are sufficient and complying with the law would pose unnecessary burdens on unions. That is the ruling the foundation, McKenna and other interest groups hope to reverse.

Seattle Post Intelligencer

High court to decide whether to hear case on unions, politics By Charles Pope September 20, 2006 WASHINGTON -- The U.S. Supreme Court could decide as early as next week whether to hear a Washington state case that supporters say would clarify how much control unionized workers have over the use of dues in political campaigns. The Evergreen Freedom Foundation, a Washington state interest group, and state Attorney General Rob McKenna are leading the effort to force the issue to the Supreme Court, arguing that the power to control contributions is an inherent right under the First Amendment. The foundation, which has allied itself with conservative groups, has long argued that the system to insulate workers from being forced to contribute union dues to political agendas that are contrary to their own beliefs is weak and illegal. The courts, however, have disagreed, ruling that current protections are sufficient. In March, the state Supreme Court struck down Initiative 134, a 1992 campaign reform measure that required unions to receive explicit permission from members before using dues for political purposes.

“We believe this ruling turns the First Amendment on its head by allowing statutory rights of unions to collect and spend dues to trump constitution rights of teachers who have exercised their constitutional right of opting out of political expression and speech,” Michael Reitz, an attorney for the foundation, said at a news conference Tuesday in Washington, D.C. But Charles Hasse, president of the Washington Education Association, said the appeal to the Supreme Court is unnecessary. The WEA already provides a “simple and convenient” way for members to opt out if they wish to withhold dues, he said. The WEA is one of the unions that have faced court cases when objections were made about the use of union dues for political activity. The case in question revolves around a small number of union workers who voluntarily decide not to be active members. According to Hasse, the members who pay “agency dues” total 2,931 out of a total membership of 80,000. Regardless of the source of funding, unions are heavily involved in political campaigns. The AFLCIO announced last month that it would spend $40 million on the upcoming elections to get out the vote and support candidates. The vast majority of that support is directed at Democrats. Hasse said the desire to have the case heard in the Supreme Court is driven more by politics and antiunion sentiment. “What are their motives?” Hasse said of the Evergreen Freedom Foundation. “Take a look at where they get most of their funding.” The foundation’s Web site provides only general categories for its funding but at the news


conference Thursday, Reitz was joined by a representative from Americans for Tax Reform, a conservative group with close ties to the White House, and a teachers association that describes itself as a counterweight to the National Education Association. Reitz, the foundation’s lawyer, dismissed such suggestions.

“We don’t contest the Washington Education Association or any union’s right to engage in political activity,” he said. “But that activism should be supported by voluntary contributions from teachers, not the mandatory collective bargaining dues of those who have specifically opted out of political expression.”

Seattle Post Intelligencer

The case, he said, “is intended to give individuals more influence over the state electoral process.”


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The Washington Supreme Court overturned a 1992 law that required unions to get the consent of each worker and refund money to everyone who did not agree. The court said the union’s annual offer to reduce the fees for any non-member who registers an objection to the use of fees for political purposes is sufficient. The state court said that forcing the union to seek permission from each worker violated the union’s free speech rights.

Supreme Court jumps into dispute over labor union fees in Washington state

USA Today

September 26, 2006

The three dissenters in the case, however, said the ruling “turned the First Amendment on its head,” by valuing the rights of the union above those of individuals. Washington Attorney General Rob McKenna said the decision conflicted with prior court cases upholding similar laws.

WASHINGTON (AP) — The Supreme Court agreed Tuesday to decide whether public employee unions must get special permission before spending some workers’ dues on political causes.

The union is the state’s largest teachers union. Fewer than 5% of the 80,000 people the union represents choose not to be members, the union said.

Justices accepted an appeal from the state of Washington that involves fees paid to the Washington Education Association by teachers who decline to join the union.

Arguing against the appeal, the Washington union said the state law is the only one in the nation that restricts otherwise lawful union spending.

Those workers still can be charged fees by the union to help pay for labor negotiations that affect them. But they can’t be forced to pay for the union’s political activism. At issue is whether the union needs teachers to say “yes” before the fees can be used for political causes or whether the fees can be used for that purpose unless the teachers say “no.”

The case stemmed from a complaint filed by the Evergreen Freedom Foundation, a conservative think tank based in Olympia, Wash. The foundation has fought for years with the union over the collection of fees from workers who choose not to join. The cases are Gary Davenport v. Washington Education Association and Washington v. Washington Education Association.


Washington Attorney General Rob McKenna said the decision conflicted with prior court cases upholding similar laws.

September 26, 2006 (CBS/AP) The Supreme Court agreed Tuesday to decide whether public employee unions must get special permission before spending some workers’ dues on political causes. Justices accepted an appeal from the state of Washington that involves fees paid to the Washington Education Association by teachers who decline to join the union.

Arguing against the appeal, the Washington union said the state law is the only one in the nation that restricts otherwise lawful union spending. The case stemmed from a complaint filed by the Evergreen Freedom Foundation, a conservative think tank based in Olympia, Wash. The foundation has fought for years with the union over the collection of fees from workers who choose not to join. In other action Tuesday, the Supreme Court:

Those workers still can be charged fees by the union to help pay for labor negotiations that affect them. But they can’t be forced to pay for the union’s political activism.

• Agreed to hear arguments in a case that could make it easier for consumers to hold insurers, banks and other businesses liable for failing to notify them about adverse information in credit reports.

At issue is whether the union needs teachers to say “yes” before the fees can be used for political causes or whether the fees can be used for that purpose unless the teachers say “no.”

The Fair Credit Reporting Act requires companies to notify consumers about rate increases based on information in consumer credit reports.

The Washington Supreme Court overturned a 1992 law that required unions to get the consent of each worker and refund money to everyone who did not agree. The court said the union’s annual offer to reduce the fees for any nonmember who registers an objection to the use of fees for political purposes is sufficient. The state court said that forcing the union to seek permission from each worker violated the union’s free speech rights. The three dissenters in the case, however, said the ruling “turned the First Amendment on its head,” by valuing the rights of the union above those of individuals.

• Accepted an appeal Tuesday from Arizona, which wants to execute a twice-convicted killer who says his lawyer didn’t do enough to ward off a death sentence. Justices said they would review a decision by the 9th U.S. Circuit Court of Appeals, which said a lower court should consider Jeffrey Landrigan’s claims that his lawyer was ineffective. Landrigan escaped from an Oklahoma prison in 1989, where he was serving a 20-year term for murdering an acquaintance. A month later, he killed Chester Dyer, who picked up men on the Phoenix streets by flashing large sums of money. • Said it will consider whether the government can deport an immigrant who pleaded guilty to auto theft.

CBS News

Court Takes On Union Dues Case

The union is the state’s largest teachers union. Fewer than 5 percent of the 80,000 people the union represents choose not to be members, the union said.


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Court Takes on Union Dues Case Continued...

In urging the Supreme Court to take the case of Luis Alexander Duenas-Alvarez, the Bush administration is challenging an appeals court ruling it says could have “a substantial effect on the administration of immigration laws.”

CBS News

The issue revolves around whether DuenasAlvarez’s conviction under California law qualifies for deportation under federal immigration law.


and that the state campaign finance agency did not respond to its requests for clarification on how to avoid problems with the law.

BY Brad Shannon The long-running dispute between a conservative Olympia think tank and the state teachers union over the use of agency “shop fees” for political purposes has won a hearing before the U.S. Supreme Court, likely in January. The case pits the conservative, Olympia-based Evergreen Freedom Foundation and allied interests against the Washington Education Association over the question: Should the WEA teachers union ask its nonmembers for written permission before spending a portion of agency fees on political purposes? Or, as WEA argued, should the employee have to opt out, as its practice had been? By a 6 to 3 ruling, the state Supreme Court in March threw out Initiative 134’s so-called “paycheck protection” and said the WEA acted properly when it commingled agency fees and member dues into accounts that helped pay for two initiative campaigns in 2000. It found the WEA did not make political use of fees over which nonmembers had objected. A Thurston County judge in 2001 had slapped WEA with $590,375 in fines and sanctions over its practices. “The Washington Education Association does not spend non-members’ fees on political purposes, and non-members have a simple, easy way of opting out,” WEA said in a statement issued to the news media through its spokesman, Rich Wood, on Tuesday. The union has long insisted it followed the law

The two Washington cases are being combined for the review, National Right to Work spokesman Justin Hakes said. The foundation is concerned that the state court’s ruling could be used to undermine 22 right-to-work laws in other states that make union membership and dues a voluntary action, Hakes said. The issues at hand deal with shop fees paid by nonmembers, who don’t have to pay dues but who must make payments to cover union activities, such as contract negotiations, that clearly benefit the worker. The conservative Institute for Justice’s Washington state chapter also has filed a friend of the court brief supporting the “paycheck protection” provision of Initiative 134, which voters adopted in 1992. I-134 set limits on campaign donations and included an “opt in” provision for use of dues for political purposes. WEA has said the shop fees have totaled about $700 yearly for about 3,000 nonmembers who paid them. “This is an extremely important case for the First Amendment rights of workers, and we’re pleased that the U.S. Supreme Court has chosen to hear our appeal,” McKenna said in a statement issued by his office. “By overwhelmingly approving Initiative 134, voters said they did not want people to be forced to fund union political activities against their consent. “By accepting our appeal, the U.S. Supreme Court will now decide whether nonmembers, who are required to pay union fees, must affirmatively optin before the union can spend some of their nonmember fees on political causes.”

The Olympian

High court to decide whether union dues, politics mix

State Attorney General Rob McKenna and lawyers with the Virginia-based National Right to Work Legal Defense Foundation, who have a parallel case, both sought the U.S. Supreme Court review. Arguments before the high court are expected in January, the parties say.


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appropriate means of preventing that.

Justices to Decide on Use Of Union Fees for Politics

The Washington Post

By Charles Lane September 27, 2006 The Supreme Court announced yesterday that it will decide whether states may require organized labor to ask some workers for permission to spend their union fees on political activity. The case addresses the agency fees that some states require workers to pay to labor organizations for representation, even if they chose not to join the unions. The court said it would review a Washington state Supreme Court ruling that struck down a state law barring the use of those fees for political purposes without workers’ consent. The case pits the state of Washington and national right-to-work advocates, backed by campaign finance reformers, against organized labor. At stake, potentially, is much of the money that unions rely on to help fund their state-level political activities. The law had been adopted by Washington voters as part of a referendum on campaign finance reform. But the state’s high court ruled 6 to 3 earlier this year that the law violated unions’ First Amendment rights because it presumes workers would object to labor leaders’ spending choices. Washington’s state government and a group of five teachers appealed to the U.S. Supreme Court. They argue the real free-speech violation lies in spending teachers’ mandatory contributions to their union on candidates or causes they do not necessarily support -- and Washington’s law is an

The teachers in the case do not belong to the Washington Education Association, but they are represented by the union in collective bargaining and they receive the benefits and pay called for in the union’s contract with the state’s public schools. For that reason, Washington law requires them to pay the union an “agency fee” in lieu of union dues. The specific question in the case is what the union must do before it spends those nonmember “agency fees” on politics. The U.S. Supreme Court has upheld agency fee arrangements in general. But it ruled in 1986 that unions must tell those who pay an agency fee how much of it goes to non-collective-bargaining purposes and offer them a refund for that amount. Washington’s law, though, goes further, in that it places the burden on unions, not individual workers, to make sure that no agency fees are being used contrary to fee-payers’ wishes. That was the feature of the law that the Washington Supreme Court majority found unconstitutional. The Washington Education Association, urging the court not to review that decision, said its impact would not extend beyond the state. But a friend-of-the-court brief filed by the Campaign Legal Center, a D.C.-based nonprofit group that supports campaign-finance regulation, argued that the Washington decision, if left in place and followed by other state courts, could be used “as authority to strike down state law ‘opt-in’ restrictions on labor union political activity” in 14 other states. The court will hear two consolidated cases, Washington v. Washington Education Association , No. 05-1657, and Davenport v. Washington Education Association , No. 05-1589. Oral argument is expected to take place in December, and a decision should come by July.


By Vaishali Honawar October 4, 2006 The U.S. Supreme Court agreed last week to take up the issue of when a teachers’ union may spend the money it collects in the form of “agency fees” from nonmembers on political causes. The justices said they would review a Washington state law that requires nonmembers to “affirmatively consent,” or opt in, before a union may spend money from such fees on political campaigns and similar activism. A decision by the high court upholding the law could give ammunition to union critics to push for similar restrictions on union clout in other states. On another education front, the court also agreed to take up a case involving the federal impact-aid statute and when states may reduce their funding to districts with large federal land holdings or installations by the same amount of aid provided by the federal government. The court announced Sept. 26 that it would add the two cases to its docket for the term that was set to begin officially on Oct. 2. The justices had already accepted two major school cases, both dealing with the use of race as a factor in assigning students to schools, for this term. In the teachers’ union case, the high court accepted appeals from the state of Washington and five nonunion workers of a ruling by the state supreme court that struck down the consent provision as a violation of the Washington Education Association’s First Amendment rights of free speech and association. The union and its opponents have jousted for years over the rules for political spending by the WEA.

Under a 1986 U.S. Supreme Court ruling, states that allow unions to collect agency fees from nonmembers are required to give them the opportunity to opt out of having their fees used for political purposes. In Washington state, the procedure under a 1992 law that the state’s high court overturned was seen as more burdensome to unions because it said they must annually get affirmative consent from each nonmember before using any dues for political purposes. In its decision earlier this year, the Washington Supreme Court said the provision violated the WEA’s First Amendment rights. The court held that the union’s annual offer to reduce the fees—by the portion spent on politics—for those who objected to the use of their dues for political causes was sufficient. A Full Accounting? Michael Reitz, a lawyer for the Evergreen Freedom Foundation—a conservative think tank in Olympia, Wash., that first filed the complaint against the WEA that led to the case—said that getting an annual upfront opportunity to opt out of having agency fees go for political purposes, as required under a U.S. Supreme Court decision, was insufficient protection. The WEA, an affiliate of the National Education Association, has in the past used leftover collective bargaining funds for political purposes, violating the wishes of such employees who did not want to contribute to the union’s political causes, he said. The organization joined a friend-of-the-court brief on the side of the state of Washington, which is defending the state law, and the five nonmembers.

Education Week

Supreme Court to Hear Case on Union Fees

The appeals in Washington v. Washington Education Association and Davenport v. Washington Education Association (Cases No. 051589 and 05-1687) involve fees paid by workers who choose not to join the union but who benefit from the collective bargaining process. Unions collect what is called an agency fee from such workers.


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Supreme Court to Hear Case on Union Fees Continued...

Mr. Reitz said he welcomed the agreement by the U.S. justices to take up the case. “We’re very excited that the court is taking this step,” he said. “We feel this is the first step toward securing the free-speech rights of teachers.” Teachers’ union officials and their advocates say that they calculate the opt-out portion of a nonmember’s agency fee based on the previous year’s expenditures on political causes. WEA nonmembers pay $700 a year in agency fees; those who opt out of the political expenses pay 25 percent less than that.

Education Week

John M. West, a Washington, D.C., lawyer representing the WEA, said that the state union sends every nonmember a lengthy notice on how it spends its money. “They get a full accounting of how much goes for collective bargaining, how much goes for lobbying, public relations, organizing, as well as for political expenditures,” he said. Charles Hasse, the president of the WEA, which is based in Federal Way, Wash., pointed out that nonmembers constitute only about 3,000 of the nearly 80,000 workers the union represents. Of those 3,000, fewer than 10 percent typically choose not to pay the agency-fee portion that goes toward political causes, he said. “What’s much more important to us [than the money] is the good name, reputation, and integrity of WEA, and that’s why we are ready to litigate this,” Mr. Hasse said. But those who want the 1992 law reinstated point to the past when they say the teachers’ union has “flagrantly violated” it, Mr. Reitz said. The state probe began after the WEA in 1994 instituted a dues increase for what it called the Community Outreach Program, partly to offset an anticipated drop-off in political contributions because of the 1992 law. In 1998, the state reached a $430,000 settlement in a case against the union. In a subsequent legal action by the state, the union faced a judgment of $590,000. But the union used that action to challenge the law in state courts. In March the state

supreme court struck down the 1992 law. In its appeal to the U.S. Supreme Court, the state of Washington argued that unions do not have a First Amendment right to use nonmembers’ fees for political purposes. In the separate appeal of the five current or former educators who paid agency fees to the WEA, their lawyers argue that Washington’s highest state court “turned the First Amendment on its head” by “concocting” a principle that unions have a free-speech and -association interest in their dues policy. The five are being represented by the National Right to Work Legal Defense Foundation, a Springfield, Va.-based organization that has long led a movement to restrict the influence of unions. A One-State Law Union-watchers last week were weighing the possible repercussions for unions nationwide if the U.S. Supreme Court allows the reinstatement of the Washington state law. “On the one hand, it could have no effect, but on the other it could have a great effect on how unions interact with the people they cover,” said Mike Antonucci, an independent watchdog of teachers’ unions who is based in Elk Grove, Calif. Currently, 22 states allow public-employee unions to charge agency fees to those who do not wish to become members. A potential effect of a Supreme Court ruling against the WEA, Mr. Antonucci said, could be a decline in membership numbers. “Once teachers realize that they can get representative services and collective bargaining services without having to pay for political races and campaigns and ballot initiatives, they could opt for that status” of nonmember, he said, “and that could create a whole different organizational problem” for the unions. But a lawyer for the 3.2 million-member National Education Association sought to downplay the potential of the case by pointing out that the Washington law requiring affirmative consent from nonmembers is unique to that state. “There are no statutes like Washington’s anywhere


else in the country where public-sector unions are required to collect fees from nonmember fee-payers,” said Michael Simpson, the assistant general counsel of the NEA. “For this reason, we anticipate that a decision from the Supreme Court in these cases will have no impact outside of the state of Washington.” Impact-Aid Case

A federal appeals court had upheld the U.S. Department of Education’s regulation allowing a state to redistribute impact aid as long as the federal secretary of education had determined that the state had an equalized state funding system. The appeal is Zuni Public School District No. 89 v. Department of Education (No. 05-1508). Both the union and impact-aid cases will likely be argued early next year.

Education Week

Meanwhile, in the case involving the federal impact-aid law, the justices agreed to hear an appeal from two New Mexico districts whose state aid was reduced by the amounts of such aid they had received from the federal government.


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in the Bush administration’s friend-of-the-court brief.

Speech Impediment December 20, 2006

Education Week

The chief courtroom lawyer for the Bush administration will try to convince the U.S. Supreme Court next month that the Washington Education Association does not have the right to spend money for political activities that it collects from the paychecks of the state’s nonunion educators. Last week, the court allocated time for U.S. Solicitor General Paul D. Clement to argue in support of five nonunion teachers and Washington state when their appeals are heard by the court on Jan. 10.

WEA argues that by requiring it to track down nonunion teachers to ask them to consent to the political use of their agency fees, the law puts a burden on the First Amendment free-speech rights of union members and of nonmembers who support the union’s political expression. State law requires the union to represent nonmembers in collective bargaining, though they constitute fewer than 5 percent of the school workers the 70,000-member union represents. In a 6-3 decision in March, the Washington Supreme Court held that the “opt in” law is unconstitutional because it imposes significant costs on the union, while presuming that nonmembers dissent from its political speech. That ruling was upside-down, Mr. Clement argues in the Bush administration’s brief.

The solicitor general, or one of his deputies, will help defend a 1992 state law that requires nonunion educators to “affirmatively” opt in before their so-called agency fees for union-representation activities may be used to support the union’s political agenda.

The law’s “simple proviso” that a teacher who is not a union member “must say ‘yes,’ instead of failing to say ‘no,’ not only fails to raise any constitutional concern, but actually promotes First Amendment interests by protecting the freedom of speech and association of workers who chose not to join the union and may well oppose its political activities,” the brief says.

The federal government is wading into the dispute over a state law because federal election laws similarly prohibit unions from using nonmembers’ fees for political activities, Mr. Clement explained

The consolidated appeals are Washington v. Washington Education Association (Case No. 051657) and Davenport v. Washington Education Association (No. 05-1589).


to collect money from employees they represent.

By Joseph Goldstein January 5, 2007 If New York City’s top labor union leaders aren’t planning to be at the U.S. Supreme Court on Wednesday, they may want to rethink their schedules. The court will be hearing oral arguments in two related cases involving the First Amendment rights of unions to fund political candidates. Although the cases involve a Washington State law, the court could use the opportunity to issue a ruling that would make it more difficult for unions nationwide

The case involves a dispute between the teachers’ union of Washington State and a group of nonunion teachers who are required to pay the union for the representation it provides. The nonunion teachers claim that the union is using some of their fee money without their permission to fund political candidates who they do not wish to support. For the lead plaintiff in one of the two cases, a class action on behalf of nonunion teachers, the case involves the simplest of principles.

The New York Sun

Supreme Court Will Hear Cases On Union Political Activities

But unions generally also have much to gain. The legal issues at stake have strong implications for campaign finance law, especially if the court issues a union-friendly ruling. Such a ruling could undermine long-established regulations banning unions from making direct contributions to candidates in national elections, a lawyer who is following the case said. Thus, a pro-union ruling could conceivably raise even higher the stature unions possess as political actors on the national stage.


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spending any fees from nonmembers on political campaigns.

Unions’ Policy Test

The Wall Street Journal

By JESS Bravin January 8, 2007 Organized labor won big last year when Washington state’s highest court struck down a law making it harder for unions to spend mandatory fees collected from nonmembers on political campaigns. The ruling seemed likely to end a long-running dispute between the state teachers’ union and the Evergreen Freedom Foundation, an advocacy group in Olympia, Wash., that is critical of unions and is determined to reduce their role in politics and education. More broadly, the decision stood to influence courts in other states confronted with similar battles over labor’s use of dues and fees in the political arena. POLITICAL UNION • The Issue: Labor critics want to make it harder for unions to spend fees from members and nonmembers on political campaigns. • What’s at Stake: Unions collect millions of dollars from nonmembers for representation, but must refund, on request, the portion spent on politics. • What’s Next: The U.S. Supreme Court hears arguments in the dispute Wednesday. The union victory could be short-lived. Wednesday, the U.S. Supreme Court will hear Evergreen Freedom’s challenge to the Washington state decision. The foundation hopes the court, its conservative wing bolstered by the Bush appointments of Chief Justice John Roberts and Justice Samuel Alito, will bar unions from

An array of antiunion groups -- the Institute for Justice, the National Right to Work Legal Defense Foundation and the Pacific Legal Foundation among them -- have filed briefs at the high court, hoping to strike a blow against labor’s power. The Bush administration and six states with laws unfriendly to unions likewise are urging the justices to reverse the Washington state decision. Drawing Critics Even some scholars sympathetic to labor have criticized the reasoning behind the Washington state decision and doubt it will stand. The justices likely took the case “for errorcorrection reasons rather than to make a major statement,” says Prof. Richard Hasen, a specialist in election law at Loyola Law School in Los Angeles. He adds, however, that “any time a campaign-finance issue gets before this new Roberts court, there’s a potential for big change.” Washington state isn’t known as hostile to organized labor. It isn’t among the 22 so-called right-to-work states, which prohibit contract provisions that require union members to pay dues and nonunion workers to pay fees as a condition of employment. The state teachers’ union, the Washington Education Association, obtained just such a provision; as a result, teachers unwilling to join the union must pay an “agency fee” equal to dues. The aim, the union says, is to ensure that all teachers share the cost of collective bargaining since all benefit from the union-negotiated contract. About 5% of the state’s 80,000 teachers declined membership, the union says. Prior court rulings have held that people required to pay fees to certain organizations for professional or other reasons -- such as attorneys who must join a state bar in order to practice law or undergraduates who are assessed student-government fees -- can’t be compelled to contribute to political causes they oppose. Those rulings often have led to “opt-out” policies, in which individuals can request a refund


of the portion of their fees that would be used for political speech. Since most people tend to do nothing when confronted with such choices, the full fee often remains available to the organization for political or other purposes. In 1992, Washington state voters switched the balance. They approved a campaign-finance measure that, among other provisions, barred unions from spending nonmembers’ fees “to influence an election or to operate a political committee, unless affirmatively authorized by the individual.” The union, in the wake of a 1986 U.S. Supreme Court decision, already was notifying nonmembers each year that they could obtain a refund for the 25% or so of the fee that wasn’t used for collective bargaining. To comply with the 1992 provision, the union concluded it could use the “opt-out” method. Its system involves more than checking a box on a simple return card. In a six-page letter of dense text, the union urges nonmembers to join the union, then details a variety of union programs and fees, before, on Page Four, giving directions for a refund. The letter gives objectors 30 days to write to the association’s legal department stating their challenge. In court papers, the union said about 1% to 3% of its general fund, into which nonmembers paid their fees, was spent annually for political purposes, and only on ballot measures involving issues such as taxes or teachers’ pay. The union operates a separate political action committee, funded by voluntary donations by members, to support candidates for office. For Evergreen Freedom, that wasn’t good enough. The group argued that the union had done the opposite of what the 1992 law required -- by compelling nonmembers to “affirmatively” seek a refund, rather than automatically getting one unless they took steps to give the money to the union. It sought disgruntled teachers for a test case, and found one in Gary Davenport, who says he worked for two years as a history teacher and football coach at his alma mater, Kentwood High School, in Kent, Wash.

A trial judge largely agreed with Evergreen Freedom, but the state Supreme Court didn’t. In a 6-3 decision, it found that the union’s optout procedure didn’t amount to affirmative authorization, but ruled that the 1992 requirement itself violated the First Amendment. In her majority opinion, Justice Faith Ireland wrote that both parties had free-speech rights at stake -- the union to take part in politics, the objectors to avoid compulsory participation -- and then weighed their relative burdens. She found that while it was easy for objectors to get their refunds, which ranged from $44 to $76, the costs of the optin system unfairly burdened union members and nonmembers who don’t object to their fees put to political use. Setting a Precedent No state has a law precisely like Washington’s. Colorado and five other states -- Alabama, Idaho, Ohio, Utah and Virginia -- told the U.S. Supreme Court that their own approaches to regulation of labor unions could be imperiled if the Washington decision stands. The labor movement contends the 1992 law is unconstitutional for other reasons. In a friend-ofthe-court brief, the AFL-CIO and Change to Win, a coalition of major unions, say the law singles out unions’ political speech, since the opt-in procedure isn’t required for other expenditures that are refundable. They also complain that it doesn’t target other organizations, such as corporations and trade associations, that are funded by people who don’t “necessarily support their recipients’ political expenditures.” Had the teachers’ union won better tenure protections, it might have managed to keep Mr. Davenport in the classroom. He says he left Kentwood High because he had only a year-to-year contract, and needed a job with more security. Mr. Davenport says he now works for a local law-enforcement agency and belongs to its police union. “I don’t have a problem being represented for contract disputes or individual job protection,” he says. “What I disagree with is when they become so political.”


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Hunter said.

Unions’ Use of Fees Up for Review by Supreme Court Marcia Coyle January 9, 2007

Law.com

Labor unions, money and elections intersect in the U.S. Supreme Court this week in a case testing the ability of states to restrict unions’ use of nonmember fees in political activities. The state of Washington and a group of nonunion teachers are asking the justices to reverse a state Supreme Court ruling that struck down a state law requiring unions to obtain nonmembers’ affirmative assent before using their agency shop fees for political purposes. Washington v. Washington Education Association, No. 05-1657; Davenport v. Washington Education Association, No. 05-1589. The state law places the burden on unions to get covered nonmembers to “opt in” to this use of their fees, a step beyond the more traditional arrangement of putting the burden on nonmembers to “opt out” of the activity. The Washington Supreme Court held the law to be unconstitutional because it violated the First Amendment speech and association rights of unions and supporting nonmembers.

If the state loses, states would face a “nightmare,” said Erik S. Jaffe of the Law Office of Erik S. Jaffe in Washington. Jaffe, who filed an amicus brief supporting the state on behalf of the Cato Institute, a libertarian think tank, and others, said that an affirmance would open a host of similar state laws to challenge. Colorado Solicitor General Daniel D. Domenico, who filed an amicus brief on behalf of six states, suggests ramifications beyond the election laws. The opt-in requirement, he tells the court, is one tool among many that states have used to balance the interests of unions and workers. Losing that tool could force states “to reevaluate the rest of their laws in this area,” argues Domenico. The high court challenge is really a “one-state case,” countered James Coppess of the AFLCIO, who filed an amicus brief supporting the Washington Education Association, the state teachers’ union that won in the lower court. “It’s a very odd law,” he said. “If the justices just decide the case before them, which is what Chief Justice John Roberts strongly declares should be the Court’s mode of operation, it won’t be any big deal.” The state of Washington authorizes union agency shop arrangements in which every employee represented by a union, even if not a member, must pay a service fee equal in amount to union dues. In Washington, general membership dues may be used as a source of political contributions.

If the state wins in the high court, more states may move to require unions to get consent from nonmembers, said Jerry M. Hunter, a Bryan Cave partner in St. Louis and a former general counsel to the National Labor Relations Board.

“Some states allow unions to collect only a percentage from nonmembers related to their bargaining duties, but Washington allows unions to collect 100 percent of dues,” said Michael Reitz, legal analyst and director of labor policy for the Evergreen Freedom Foundation, which opposes the union in the high court case.

“That is something unions probably would fear,”

Two U.S. Supreme Court precedents generally


In a number of states, unions send “opt out” notices that workers must return in order to enforce their objections. Washington voters in 1992, through a ballot initiative, adopted a Fair Campaign Practices Act that included the provision now at issue in the Supreme Court. Section 760 of the act prohibits a labor organization from using agency shop fees paid by nonmembers to make contributions or expenditures to influence an election or to operate a political committee “unless affirmatively authorized by the individual.” STATE RULING The state Supreme Court ultimately held that the law “impermissibly shifts to the union the burden of the non-members’ rights.” That shift, it said, inhibits the political speech of the union and supporting nonmembers for the “improper purpose” of increasing the speech of another group -- the dissenting nonmembers. The court also said the law infringed the union’s right of association. “The Washington Supreme Court assumes an extra burden is placed on the union by requiring them to obtain consent,” said Bryan Cave’s Hunter.

“Clearly the U.S. Supreme Court has recognized there is going to be some burden on the union and that’s why they adopted Hudson. The question is: How much burden is unconstitutional?” In the high court, Washington Deputy Solicitor General William B. Collins and the Davenport group’s counsel, Milton L. Chappell of the National Right to Work Legal Defense Foundation, argue that the state court decision incorrectly turns Hudson’s minimum protections into the maximum protection that states can authorize and conflicts with U.S. Supreme Court precedent approving optin requirements in federal campaign finance laws. But the Washington Education Association’s high court counsel, John M. West, a partner in Washington’s Bredhoff & Kaiser, contends that the law is a “content-based restriction that singles out political speech for special treatment.” He also argues the law can’t be justified as a regulation of campaign spending because it “sweeps far too broadly” by limiting spending as well in support of ballot propositions. The union has “some interesting arguments,” conceded Jaffe, noting that the law only requires opt-in for certain types of, not all, political activity. “The initiative would have been more logical had it simply said the union may not keep any money unrelated to bargaining,” Jaffe said. “There has to be an opt-in. In my opinion, that’s the constitutional minimum.”

Law.com

stand for the rule that while agency shop arrangements are permissible, the First Amendment protects nonmembers from being forced to fund a union’s political activities that are not related to its collective bargaining duties. Abood v. Detroit Bd. Of Education, 431 U.S. 209 (1977); Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986).


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ago by the Freedom Foundation, the state sued the teachers union, accusing it of unlawfully spending some workers’ fees on politics.

Union fight reaches high court By Ralph Thomas January 9, 2007

The Seattle Times

OLYMPIA — In an appeal of a Washington state case, the U.S. Supreme Court is set to decide whether labor unions must get permission before spending nonmembers’ fees on political activities. The case, which is scheduled for oral arguments in Washington, D.C., on Wednesday, is the latest clash in a nationwide war between labor unions and anti-union forces. Union leaders say they are fighting to preserve their rights to political free speech. But their opponents in the case, including the federal government and several states, say what’s at stake is the government’s ability to regulate union-worker relations. They contend it could even jeopardize so-called “right to work” laws in about two dozen states that bar compulsory union membership. “It’s an important case because it goes to the heart of Washington state’s effort to protect nonmembers from being forced to support a union’s political activities,” said state Attorney General Rob McKenna, who will make his first appearance before the Supreme Court on Wednesday. The case stems from a long-running feud between the Washington Education Association (WEA), the state’s main teachers union, and the Evergreen Freedom Foundation, an Olympia-based conservative think tank. Acting on a complaint filed more than six years

The WEA is a powerful lobbying force in Olympia and a heavy contributor to political campaigns. The case was later consolidated with a class-action suit against the union filed by five nonmember teachers. They are being represented by the Virginia-based Right to Work Legal Foundation, which is leading a nationwide push to prohibit collective-bargaining agreements that require workers to join the union. States have a wide range of rules that govern union-worker relationships. Like many states, Washington allows collectivebargaining agreements that require workers who choose not to join the union to pay “agency fees” to help cover contract negotiations and other union expenses. The WEA has 80,000 members statewide and collects agency fees from about 3,500 more teachers who opted out of the union. Federal courts have ruled that nonmembers who object to having a portion of their agency fees used for political causes can request rebates from the union. But a Washington state law approved overwhelmingly by voters in 1992 went a step further. Under a provision of Initiative 134, a sweeping campaign-finance measure, unions were barred from spending a nonmember’s fees on politics unless that worker gives explicit permission. In other words, instead of simply allowing nonmembers to opt out, state law in Washington required them to opt in before the union could use their fees for political activities. That may seem like a subtle distinction. But it is the crux of what lawyers on both sides have painted as a crucial First Amendment dispute.


In 2001, a Thurston County judge sided with the state and the Freedom Foundation by ruling the teachers union had committed multiple violations of that requirement. The union was slapped with nearly $600,000 in fines and legal fees.

The court said the union, by sending twice-yearly notices, had given nonmembers a “simple and convenient method of registering dissent.” McKenna appealed to the U.S. Supreme Court, arguing the union had no First Amendment right to use nonmembers’ fees for political purposes. McKenna said a handful of other states have opt-in requirements similar to Washington’s. But he and others say far more is at stake. A brief filed by six states — Colorado, Alabama, Idaho, Ohio, Utah and Virginia — said Washington’s opt-in rule was designed to protect workers’ First Amendment rights. If the state court’s ruling is upheld, they argued, it would “impose an unchangeable, national rule” and jeopardize right-to-work laws. WEA President Charles Hasse said those warnings are overblown. He contends that I-134’s opt-in requirement was unique to Washington state. He pointed out that most of the nearly dozen briefs seeking to overturn the state court ruling were filed by anti-union organizations. “It’s a good fundraiser for them,” Hasse said. “It provides a platform for them to spout a litany of union-bashing slogans.”

The Seattle Times

But in a 6-3 ruling last year, the state Supreme Court struck down I-134’s opt-in provision. The court said requiring the union to get permission from each nonmember posed an unconstitutional burden on the union’s free-speech rights.


News Stories

The Supreme Court case revolves around fees collected by Washington State’s teachers union. If you want to be a teacher in the state, you have to pay a fee to the union, even if you aren’t a member. That’s because the state Legislature assigned exclusive authority to the union to negotiate pay and other employment issues for all teachers. Nonunion teachers must agree to a payroll deduction equal to the union dues.

The Christian Science Monitor

Free-speech dispute over union fees By Warren Richey January 10, 2007 WASHINGTON – The US Constitution forbids unions from using fees collected from nonunion workers to finance political activities unless the nonmembers grant permission. Without consent, such action would raise the specter of nonmembers being dragooned into subsidizing political efforts they may not support. And that would violate the free speech and association clauses of the First Amendment. But how much permission is necessary? That’s the question at the center of two consolidated cases set for oral argument Wednesday at the US Supreme Court. The cases examine a Washington State campaignfinance law that pits a union’s constitutional right to engage in politics on behalf of its likeminded members against a nonmember’s right to disassociate from those activities. The case arises amid a nationwide effort by a number of conservative groups to undercut the ability of union leaders to use compulsory union dues and fees to influence political campaigns without first obtaining the clear permission of those who contributed the money. Union fees

The provision requires nonunion members to help pay for benefits that accrue to all the state’s teachers through the collective bargaining efforts of the Washington Education Association (WEA). But this also provides a ready pool of cash to the union for political activities. And that has triggered allegations that the union’s use of a portion of the fees for politics is forcing nonmembers to subsidize political speech that they do not support. A 1992 state campaign-finance law mandates that the 80,000-member union obtain the consent of some 3,000 nonmember teachers before using a portion of their dues for politics. Union officials say they already obtain that consent by offering nonmembers the option of objecting to the political use of their fees. But a group of current and former teachers say that’s not enough. They say the state law requires prior authorization. If no such prior consent is given, the money is off limits for political purposes and must be refunded, they say. In contrast, the union’s current system relies on implied consent. Twice a year, the WEA mails a packet of information to nonmembers telling them they have a right to object to the use of their fees for politics. If they object, the money is refunded. If they do nothing, forget, or otherwise fail to return a form within the 30-day deadline, the union interprets it as permission to use the money for political purposes. The state campaign-finance law requires the union to determine consent through an opt-in system, while the union insists that its current optout system provides nonmembers with enough protection against political coercion.


The Washington Supreme Court agreed with the union. It declared by a 6-to-3 vote that the state’s tougher affirmative consent law violated WEA’s right to use union funds for political advocacy without facing government-imposed restraints.

they say.

“The union’s [opt-out] procedures amount to a constitutionally permissible alternative that adequately protects both the union and dissenters,” the Washington Supreme Court declared.

“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,” writes Solicitor General Paul Clement, in a friend-of-the-court brief filed in support of the state.

The case is about the free-speech rights of nonunion members, not the union itself, says Milton Chappell, a lawyer with the National Right to Work Legal Defense Foundation, which is representing a group of nonmember teachers in the case. He says the union favors the opt-out system because it maximizes political dollars collected by the union. But, he says, it does little to ascertain whether nonmembers truly intend that their fees be used to support the political preferences of a labor organization they refuse to join. “We are not against unions or anyone wanting to join them,” Mr. Chappell says. “But for those people who have decided for whatever reason that they do not or cannot join or support a union, we believe that their rights should be protected.” Response from the teachers union Debra Carnes, a spokeswoman for the WEA, says the legal battle is aimed at undercutting the power of unions. “This is much bigger than WEA and optin or opt-out,” she says. “The goal is to dry up the money so unions have no collective voice.” Lawyers for the WEA say in their brief that the campaign-finance law hinders the union’s ability to engage in political speech by imposing restrictions on the use of funds lawfully held in the union’s treasury. The state law requires burdensome record-keeping and accounting procedures that undercut its ability to engage in political action,

He says federal campaign-finance laws bar unions from spending any union treasury funds to influence federal elections - even funds obtained by member dues. The courts have upheld the constitutionality of such restrictions in federal elections, so it follows that Washington State’s more modest opt-in requirement is also constitutional, Mr. Clement says. One potential key to the case may be how the high court interprets a clause contained in a 1961 Supreme Court decision. “Dissent is not to be presumed - it must affirmatively be made known to the union by the dissenting employee,” the high court declared in a case called Machinists v. Street.

The Christian Science Monitor

Lawyers for the nonmember teachers argue in their brief to the US Supreme Court that the state high court “repeatedly misapplied and misinterpreted the First Amendment.”

Overall, nonmember fees make up 4 percent of the union’s total revenue, according to briefs in the case.


News Stories

want to join their union are still required to pay union fees nearly equal to the dues paid by regular members. Those fees – about $700 a year for an average teacher, according to Wood – pay for collective bargaining costs that benefit members and nonmembers alike.

Justices to hear teachers lawsuit

The Spokesman Review

Richard Roesler January 10, 2007

The vast majority of teachers simply join the 80,000-strong union. Wood said non-members number about 3,000. Those who file for a rebate, he said, get back about 25 percent of their fee. That includes political spending and other non-contract costs, such as public-relations work. Among that small minority: Rogers High School business teacher Scott Carlon.

OLYMPIA – In what both sides describe as a battle to protect their free-speech rights, the U.S. Supreme Court will hear arguments this morning over whether Washington’s teachers’ union needs permission from nonmembers before it can spend their money on politics.

“This is a very tough issue for me, because I greatly appreciate the work of the union,” said Carlon, who lives in Spokane. “But traditionally, they’ve had a very liberal social agenda that I personally believe is not in the best interest of education.”

“No one should be forced to have money taken out of their paycheck for politics they don’t support,” said former Spokane school speech pathologist Cindy Omlin. Omlin now heads Northwest Professional Educators, a teachers’ association intended as an alternative to the far larger Washington Education Association.

“I think it’s almost un-American to take dues and use them for something you don’t believe in,” said Tedd Nealey, a substitute teacher in the Cheney and Spokane schools. “I ran for the Legislature. They might even have funded my opponent.”

The clash pits the state and several dissenting teachers against the WEA, with Attorney General Rob McKenna arguing the state’s side today in his first appearance before the high court. But it’s also the latest clash in a years-long legal battle between the Washington Education Association and the Evergreen Freedom Foundation, a conservative group based in Olympia. So far, the WEA’s been winning most of those court contests. The Evergreen Freedom Foundation, WEA spokesman Rich Wood said Tuesday, is simply trying to “stymie the political voice of school employees.” The many friend-of-the-court briefs filed in the case, he noted, include several antiunion groups. Unlike in Idaho, Washington teachers who don’t

In 1992, Washington voters overwhelmingly passed Initiative 134. It requires unions to get an “affirmative authorization” from nonmembers before spending their dollars on campaign donations, ads or other political costs. For years, however, the WEA has maintained that it’s sufficient to simply allow people to say no and get a refund of those costs. And the union sends out annual notices that allow the nonmembers to do just that. “Under federal law,” Wood said, “they have an easy and simple way of opting out.” To reverse the system and require thousands of nonmembers to annually say yes, he said, would create a logistical and accounting burden that would unnecessarily hamper the union’s political clout.


Seven years ago, the state sued the WEA, saying it had been violating the law for years. The state won the first round, in which a superior court judge fined the WEA nearly $600,000. The fine, however, was thrown out on appeal.

In a 6-3 ruling on both cases last May, the state Supreme Court ruled I-134’s “opt-in” rule unconstitutional. “Dissenters may not silence the majority by the creation of too heavy an administrative burden,” wrote Justice Faith Ireland, saying that it would be “extremely costly” to force the union to get consent from thousands of nonmembers. And just because people choose not to join the union, she said, it would be a mistake for the court to assume that means they disagree with the union’s political goals. “There are numerous and varied reasons why employees choose not to join a union,” Ireland wrote. The court let stand the union’s opt-out practices, which Ireland called “a less-restrictive, constitutionally permissible alternative.” In a blistering dissent, Justice Richard Sanders said the court had “turn(ed) the First Amendment on its head.” Quoting Thomas Jefferson, he wrote “that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors is sinful and tyrannical.” No ruling is expected from the high court for months.

The Spokesman Review

In 2001, that case was joined with a similar lawsuit filed by five school employees – Gary Davenport, Martha Lofgren, Walt Pierson, Susannah Simpson and Tracy Wolcott – unhappy that their money was supporting the union’s politics.


News Stories

19-year-old boys would be inclined to grope them pretty much constantly for the next four years unless they yelled, “No”? Section 760 more or less shifted the burden to the boys to ask if the girls want to be groped.

Just Say No Twice By Dahlia Lithwick

Slate

There’s nothing clear about the legal claims in this morning’s consolidated cases of Davenport v. WEA and Washington v. WEA. Indeed the constitutional questions before the court are so fuzzy that the justices spend loads of time just trying to clarify with the advocates precisely what these constitutional questions are. At issue is Section 760 of Washington State’s Fair Campaign Practices Act, adopted in 1992 by state voters as part of a larger campaign-finance-reform law. 760 targets state unions, but this case is not about union members. It’s about the nonmembers who are nevertheless assessed “agency fees” that go toward collective bargaining and other union activities from which they presumably benefit. Prior cases have held that those fees cannot be used toward political or ideological activities to which the nonmember would object. Thus, unions give nonmembers the power to “opt out” of any union activities not “germane” to collective bargainingnotably lobbying or political campaigning for ballot initiatives. But Section 760 went further, requiring unions in Washington to refrain from using those agency fees for political activity unless the nonmembers “affirmatively authorize” them to do so. The burden was essentially shifted from objecting members to the unions, to protect the free-speech interests of nonmembers. Remember that first day of college, when the dean of students explained to the young women that

There are about 80,000 teachers represented by the Washington Education Association-the big teachers union whose case is before the court today, of whom only about 4,000 declined to join the union. The teachers union estimates that the amount of money per person, per year that goes from the pockets of nonmembers to political activity is about $10 per person. Still, the union’s current opt-out system makes it arduous for nonmembers to reclaim their funds, requiring them to wade through dozens of pages of materials, write a letter, and mail it back, and do all this faster than the Flash in order to get their refund. No wonder unions don’t want to shift to a system where they’d need to get affirmative consent. In a 6-3 decision, the Washington State Supreme Court struck down Section 760 as unconstitutional, saying the whole provision burdened the First Amendment rights of labor unions. The state of Washington, backed by various conservative legal foundations, anti-union groups, and the Bush Justice Department, appealed. The Supreme Court agreed to hear the case. State Attorney General Robert M. McKenna defends the opt-in requirement by characterizing it as part and parcel of a broader effort to promote electoral integrity. Justice Stephen Breyer wonders why this law targeted only unions as opposed to “the local swim team, or bar association, or corporation?” Justice Anthony Kennedy wonders whether the Supreme Court can simply disregard the constitutional conclusion of a state supreme court on a matter of state law. Breyer asks whether the non-union-members get their money back, or if the union can simply spend it on something else? McKenna points out that crafting an opt-in system isn’t a big deal for the unions; they’d merely need to send out an additional form: “When the WEA chose to form a PAC they did a good job of soliciting members. They include a very convenient form encouraging people to check


John West, who represents the teachers union, faces rougher sledding. Kennedy asks him immediately whether, under his view of the case, “the First Amendment rights of the nonmembers are irrelevant?” West shifts his argument slightly to emphasize a claim that the law represents a content-based ban on certain types of political advocacy by unions, gutting core First Amendment rights. Justice David Souter questions whether the funds in question are truly the union’s funds. Scalia continues to club West about the state’s “extraordinary power to exact funds from people,” gleefully describing the “government as coercer.” Justice John Paul Stevens asks whether a farbroader law, limiting unions from participating in any activity beyond those germane to collective bargaining, would be constitutionally permissible since it doesn’t single out political speech. When West tries to answer him, Stevens blurts, “Can you just tell me yes or no and then explain?” West replies, “Yes and no,” which cracks up the gallery, but not so much the justices.

Justice Sam Alito gets at the heart of the case when he disputes West’s assumption that perhaps nonmembers of the union would nevertheless love to see their fees go to union political activity. “These are teachers who have chosen not to join the WEA, right?” Alito asks. “Then isn’t it overwhelmingly likely that they, if you spoke to them and said would you like to give money to the union to spend on elections, they would say no?” He is baffled, adding, “Why would I choose to give up the benefits of union membership and yet want to allow the union to spend my money for its political purposes?” West says he “absolutely disagrees” with that presumption, but it’s hard to see why. Attorney General McKenna makes this same point rather nicely in his rebuttal: “The state of Washington’s position,” he says, “is that nonmembers should not be required to say no twice. They said no when they chose not to join the union. The union’s position now is ‘we get to use your money for political purposes unless you say no a second time.’ “ This probably isn’t good news for the unions, which are about to see their power to engage in political advocacy sharply limited by the high court. But as the justices seem mostly to agree today, it’s certainly not illogical to assume that if that cute freshman from your Russian-lit class already told you she didn’t want to go on a date with you, it’s a pretty safe bet she doesn’t want to have sex with you, either.

Slate

off and send their dues ... yet they have no such form for the opt-out process.” Then McKenna sits down (rather abruptly), and Solicitor General Paul Clement takes over arguing Washington’s side. Clement uses the same language Scalia will use all morning to describe the unions’ “forced extraction of fees” from nonmembers-the constitutional equivalent of pulling teeth without Novocaine.


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being infringed by the Washington restrictions. The Supreme Court already has said nonmembers must be able to “opt out” of paying for political activity; the Washington law went further, saying unions must get them to “opt in” before pursuing political causes with their money.

State gains steam in union case before high court

The Seattle Times

By Stephen Henderson January 11, 2007 WASHINGTON — The Supreme Court appeared ready Wednesday to reject claims that the First Amendment prohibits Washington state from forcing unions to get permission before spending some of the money they collect on political causes. At issue is how the Washington Education Association (WEA), the state’s largest teachers union, handles the so-called agency fees it collects from school employees who choose not to be union members. Those fees, under state law, are paid to cover collective-bargaining activity that benefits everyone, whether they are union members or not.

Both the state attorney general and several teachers sued the WEA, accusing it of violating the 1992 law. The state’s highest court concluded that the law violated the First Amendment to the U.S. Constitution, essentially because it placed undue burdens on the unions’ political speech. The state court agreed that the “opt-in” requirement would create an administrative nightmare for the union in its effort to collect the fees, and that the “opt-out” requirement was a less burdensome alternative that the state should have chosen. That reasoning clearly fell flat with Chief Justice John Roberts and with justices Antonin Scalia, Anthony Kennedy and Samuel Alito. Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg also hammered the union’s lawyer with questions that reflected serious doubt about his arguments.

But a 1992 law prohibited unions in the state from using that money for political activity without first getting permission from the nonmembers.

Justice Stephen Breyer seemed similarly inclined, but less certain. Justice Clarence Thomas, as is his custom, said nothing during arguments.

The arguments Wednesday turned largely on whose First Amendment rights were at stake. Lawyers for the state, backed by the Bush administration, argued that the most important rights in the case belong to employees, who shouldn’t be forced to support causes with which they disagree.

Kennedy best summed the justices’ response to the union’s arguments:

Lawyers for the union say its rights to lobby are

“States have considerable discretion in determining how to protect federal constitutional rights,” he said at one point. “It seems to me that Washington acted quite properly in saying we will use this mechanism in order to protect our workers’ First Amendment constitutional rights.”


says Glenn Taubman, a senior attorney with the National Right to Work Legal Defense Foundation. “Today it was completely the opposite.”

Tony Mauro January 11, 2007 The Supreme Court struck a new anti-union note Wednesday during oral arguments that pointed toward a ruling against the Washington state teachers union in a First Amendment dispute over how it should collect fees from nonmembers. At issue in Davenport v. Washington Education Association and Washington v. Washington Education Association is a 1992 state ballot initiative that requires unions to ask nonmembers to affirmatively “opt in” to pay the portion of agency fees that go toward the union’s political activities. A long line of Supreme Court cases currently allows unions to collect agency fees, equivalent to union dues, from nonmembers, on the theory that collective bargaining and other union activities benefit nonmembers as well as members. In a 1986 ruling, the Court indicated that unions must provide a fair way for nonmembers who pay the fee to “opt out” of paying the portion of the fee that goes toward political activities. Unions are fighting the “opt-in” alternative, which they fear will result in far fewer teachers giving support to unions’ First Amendment activities. The tenor of the argument Wednesday appeared to be so strongly anti-union -- Justice Stephen Breyer was the only justice who voiced sympathy for the union -- that so-called right-to-work advocates say it may mark a major turning point in the Supreme Court’s labor doctrine. “I have been attending arguments on these issues for 25 years, and in all of them, so many justices were not very sympathetic toward nonmembers,”

The Court’s newest justice, Samuel Alito Jr., seemed especially unsympathetic toward the union, which claims that the opt-in system will restrict its freedom of speech by limiting its ability to participate in politics. “Why should the First Amendment require anything other than an opt-in scheme?” Alito asked. Alito also repeatedly suggested that he could not fathom why a nonmember would ever want to pay the portion of dues that goes toward political activities. “What would be the thinking of such a person?” said Alito, whose wife has been a public school employee in New Jersey. “Why would I choose to give up the benefits of union membership and yet want to allow the union to spend my money for its political purposes?” John West of Washington, D.C.’s Bredhoff & Kaiser, arguing for the union, replied that it was very possible that a nonmember would still enjoy the benefit of the union’s lobbying for cost-ofliving adjustments for teachers or to reduce class size. Justice Anthony Kennedy also appeared critical of the union stance, telling West, “You proceed as if there are no First Amendment rights of [nonmember] workers.” West answered that nonmembers do have rights that are “fully protected” by the old opt-out process. But then Justice David Souter asked, “Why can’t the state protect it more?” referring to the First Amendment interests of nonmembers. At one point, Justice John Paul Stevens also seemed incredulous that a nonmember’s failure

Law.com

Supreme Court Shows an Anti-Union Hand

In contrast to the 70,000 members of the Washington Education Association, there are only about 4,000 nonmembers who pay agency fees, and just a small portion of the dues go toward political activities. In spite of the seemingly low stakes, the case has taken on strong symbolic significance as a test of the Roberts Court’s treatment of the highly contentious labor-union issue.


News Stories

Supreme Court Shows an Anti-Union Hand Continued...

to opt out of the dues payment in a timely fashion could be read as a surrender of his First Amendment right not to participate in the union’s political activities. Washington Attorney General Robert McKenna defended the “opt-in” provision as a way of protecting the integrity of elections by ensuring that only those who choose to pay for union political activities do so.

Law.com

Solicitor General Paul Clement, supporting the state of Washington, asserted that the “opt-in” statute “does not limit the union’s ability to spend its own money on political causes,” so it does not infringe on the union’s free-speech rights.


for more school funds — unless that person consents to having his fees used for such purposes. The teachers union opposes the policy on nonmembers’ fees, saying it is an administrative burden that restricts the union’s right to engage in political advocacy. The state’s highest court agreed last year. It struck down the law as a violation of the union’s speech rights.

By Joan Biskupic WASHINGTON — The Supreme Court appeared ready Wednesday to uphold a Washington state law that restricts when unions can use fees collected from non-members for political purposes. The dispute is being watched closely by the National Right to Work Legal Defense Foundation and other anti-union groups, as well as the AFLCIO. The case revolves around the Washington Education Association, which bargains for the state’s 70,000 teachers. About 3,500 of the teachers have refused to join the union. They are required by state law to pay “agency shop” fees to cover their share of the union’s bargaining on behalf of all workers. Under state law, the fees unions get from a nonmember cannot be used for political advocacy — such as the union’s lobbying the state Legislature

Most of the high court, including Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, David Souter and Samuel Alito, expressed some support for the law limiting how non-member fees are used. “It seems to me that Washington acted quite properly in saying we will use this to protect our workers’ First Amendment … rights,” Kennedy said. Washington state Attorney General Robert McKenna said the law “serves the state’s interest in election integrity” by ensuring that union political activity is funded voluntarily. John West, representing the teachers union, countered that the law wrongly assumed that nonmembers would not back the union’s lobbying. Alito responded, “These are teachers who have chosen not to join the (union). Isn’t it overwhelmingly likely that they, if you spoke to them and said, ‘Would you like to give money to the union to spend on elections,’ would say no?” West said the union believes teachers support its political efforts, including those aimed at increasing teachers’ cost-of-living raises and reducing class sizes.

USA Today

Justices express support for limiting use of union fees

Wednesday, many of the justices’ queries focused on the rights of teachers who are not in the union.


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Supreme Court hears teachers’ union case

The Washington Times

By Sean Lengell January 11, 2007 A teachers union told the U.S. Supreme Court yesterday it should have the right to spend workers’ money for political purposes without their permission -- even if they aren’t union members. The case involves about 3,000 Washington state teachers and other education employees who have chosen not to join the 80,000-member Washington Education Association. Because the nonunion workers are in the bargaining unit and thus represented by the union, they are charged a fee for labor negotiations that affect them. Washington state in 1992 adopted a campaignfinance law that requires labor unions to annually ask members whether part of their union dues could be used for political purposes. Workers then could request a refund if they said no. But last year the state’s high court struck down the law, saying that requiring the union to get specific consent from each worker was burdensome and infringed on the union’s First Amendment rights. Four nonunion employees challenged the ruling and received support from several anti-union organizations, including the National Right to Work Legal Defense Foundation and the Evergreen Freedom Foundation. The AFL-CIO and Change to Win labor organizations filed a joint brief to the U.S. Supreme Court in support of the Washington Supreme Court.

State of Washington Attorney General Robert McKenna, arguing for the nonunion workers, told the justices yesterday that it’s not fair to force employees who opt out of the union to go through the annual process of requesting refunds for the portion of their dues used for political purposes. “Nonmembers should not be forced to say no twice,” Mr. McKenna said. But states have considerable discretion in determining how to protect First Amendment rights, Justice Anthony M. Kennedy said. “It seems to me [the] Washington [courts] acted quite properly,” he said. The union says it spends money it receives from workers only on ballot initiatives -- not individual candidates. Campaign contributions to unionbacked candidates come from a separate political action committee. Anti-labor groups have portrayed the legal battle as a watershed case for organized labor and that the outcome will test the limits on labor activism nationwide. “We lose in the U.S. Supreme Court, then all 22 right-to-work states throughout the country are in jeopardy,” Mark Mix, president of the National Right to Work Legal Defense Foundation, told The Washington Times last week. “Because what the courts will then say is, the unions will have the constitutional right to nonmembers’ money.” But labor leaders say they doubt the outcome of the case will have much national impact because Washington state law is unique. “Only Washington state has this kind of advance authorization rule for nonmembers for using agency fees for political purposes,” said Laurence E. Gold, associate general council for the AFLCIO. “The impact of [the Supreme Court’s decision] could be pretty narrow.”


By Robert Barnes January 11, 2007 First Amendment rights are threatened in the state of Washington, the Supreme Court was told yesterday, but it will be up to the justices to decide who needs protection. The Washington Education Association, the state’s largest teachers union, said its freedoms would be endangered by a state law that would increase restrictions on the union’s ability to use workers’ money for political causes. On the other side are workers who do not join the union but under state law must pay dues anyway. They say their money should not be used for the union’s election causes without their explicit approval. The issue could be boiled down to a somewhat straightforward question: Is it enough that nonmembers have the chance to opt out of having a portion of their money spent on political activism, or may states put the onus on the unions, forcing them to get explicit approval from each worker?

Justice Anthony M. Kennedy seemed to see it just the opposite way yesterday, saying it appeared to him that Washington had acted properly to protect the rights of nonmembers. He told union attorney John West: “You want us to consider the case as if the First Amendment rights of nonunion members were not involved.” West said that was not true, and that the Supreme Court in the past had found that those workers were properly protected by giving them the right to opt out of having their dues spent for political purposes. Those workers can object “simply by sending in a letter,” West said. “So it’s a First Amendment right that is waived by failing to make a timely objection,” Justice John Paul Stevens responded. Justice Samuel A. Alito Jr. and Washington Attorney General Robert McKenna (R), who was defending the state law, seemed to agree that nonmembers have already made a statement about the union’s political activities when they decided not to join. “They shouldn’t be required to say no twice,” McKenna said. The Bush administration also joined the case in opposition to the union’s position.

The issue is somewhat narrow, but the case has drawn special attention from the politically influential AFL-CIO on one side, and from conservative legal groups and national right-towork organizations that want to limit the power of unions on the other.

In practice, only about 5 percent of the teachers and other educational personnel eligible to join the Washington Education Association choose not to become members. The state nevertheless requires them to pay dues, and about 75 percent of that money is spent on collective-bargaining efforts. West said the other share spent on political purposes is used to support or oppose ballot issues rather than being used for candidate campaigns.

The Washington Supreme Court ruled last year that the state’s law requiring the union to get affirmative authorization from nonmembers was unconstitutionally burdensome.

The consolidated cases the court heard yesterday are Davenport v. Washington Education Association, 05-1589, and Washington v. Washington Education Association, 05-1657.

The Washington Post

Justices Hear Case on Right of Unions to Use Nonmembers’ Dues

“This has the practical effect of inhibiting one group’s political speech (the union and supporting nonmembers) for the improper purpose of increasing the speech of another group (the dissenting nonmembers),” the state court ruled.


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has required unions to permit nonmembers to “opt out” of having their fees used for any purpose that is not “germane” to the union’s collective bargaining responsibilities.

Rights of Unions and Nonmembers Vie at Court By Linda Greenhouse January 11, 2007

The New York Times

Correction Appended WASHINGTON, Jan. 10 — A case argued before the Supreme Court on Wednesday about how labor unions must handle the fees paid by nonmembers could turn out to be little more than a footnote to a long line of decisions about the respective rights of labor unions and dissident employees. Or the case might turn out to be a good deal more consequential, the first step toward a recalibration by the court of the constitutional balance between the two. Each of these contrasting outcomes appeared plausible during an argument that had a bit of something for everyone: First Amendment law, labor law, election law and an animated performance by the court’s newest justice, Samuel A. Alito Jr. Justice Alito appeared particularly energized by the case, a defense by the state of Washington of a provision of its campaign law that bars unions from spending nonmembers’ fees on political activity without first receiving permission. This “opt-in” provision of the Washington law, adopted by referendum in 1992 as part of a broad campaign finance measure, goes a step beyond the protection for nonmembers that the Supreme Court has found to be constitutionally required. The court

Under federal labor law, states may authorize “union shop” provisions under which employees who choose not to join the union must pay fees to support the union’s collective bargaining. The Washington Supreme Court held in this case that requiring the union to receive affirmative permission before spending nonmembers’ money on election-related activity imposed an unconstitutional burden on a union’s right of free speech and association. The state teachers’ union is defending that judgment, while the state and a group of teachers, represented by the National Right to Work Legal Defense Foundation, challenged it in separate appeals. The justices consolidated the cases, Davenport v. Washington Education Association, No. 05-1589, and Washington v. Washington Education Association, No. 05-1657, for a single argument. The Bush administration entered the case on the state’s side. Solicitor General Paul D. Clement said the Washington Supreme Court had “rigidly constitutionalized an area of labor law” that should be left to the “substantial discretion” of the states and the federal government. Mr. Clement said that just because “as a minimum constitutional matter, the workers have to have an opt-out right” did not mean that a state could not go further and provide that the union could not spend nonmembers’ money on politics unless those workers affirmatively agreed. That argument seemed to appeal to Justice Alito. “Why should the First Amendment permit anything other than an opt-in scheme?” he asked. That was a “fair question,” the solicitor general replied, while at the same time carefully avoiding a full embrace of Justice Alito’s suggestion. The opt-in right should be an option but was not


Later in the argument, addressing the union’s lawyer, John M. West, Justice Alito suggested that it seemed only common sense to presume that employees who had chosen not to join the union were likely not to support the union’s political activities. The presumption built into the court’s precedents is that nonmembers do support the union’s outside activities unless they declare otherwise. “Dissent is not to be presumed” is the phrase the precedents use. So it would be a substantial change in labor law if the presumption were reversed. “Isn’t it overwhelmingly likely,” Justice Alito asked Mr. West, that if nonmembers were asked whether they wanted to “give money to the union to spend on elections, they would say no?” Mr. West said he “absolutely” disagreed, explaining that the union used its political money to campaign for higher taxes to support local school districts and other purposes “that it has every reason to believe is in the interest of the vast majority of teachers.” Chief Justice John G. Roberts Jr. sounded unpersuaded. “Well, surely,” he said, “you don’t get to say, well, this is in your interest, whether you want to spend the money or not.”

Justice Anthony M. Kennedy was also critical of the union’s position. “You want us to consider this case as if the First Amendment rights of non-union members were not involved,” he told Mr. West on two occasions. Washington is the only state with a campaign finance law that singles out labor unions for special treatment. Mr. West’s basic argument was that the law violated the First Amendment by discriminating against speech based on its content. The union is permitted to engage in legislative lobbying, for example, without first getting the nonmembers’ permission to use their money, but is barred from campaigning for or against ballot measures. About 5 percent of Washington’s 80,000 teachers have declined to join the union. Correction: January 13, 2007 An article on Thursday about a Supreme Court argument in a labor case from the state of Washington misidentified the type of workplace at issue, in which employees who choose not to join the union must pay fees to support the union’s collective bargaining. It is an agency shop — not a union shop, in which all employees must actually join the union.

The New York Times

constitutionally required, he said.


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state recently rewrote the law in question. The union bargains for the state’s 70,000 teachers. About 5% of those teachers have declined to join the union. Under state law, rather than pay dues they are required to pay “agency shop” fees to cover bargaining on their behalf.

Supreme Court upholds fee burden on unions By Joan Biskupic

USA Today

WASHINGTON — States may restrict when public-employee unions use the fees collected from non-members for the unions’ political purposes, the Supreme Court ruled Thursday. The unanimous decision endorsed a unique Washington state law that bars unions from using non-member fees for political advocacy without first getting explicit consent from the nonmembers. “Unions have no constitutional entitlement to the fees of non-member employees,” Justice Antonin Scalia wrote for the court as it rejected the Washington Education Association’s First Amendment challenge to the state law. The case had been closely watched by unions, business groups and others who wondered whether the court would use it to broadly rule on labor relationships or campaign-finance regulation. The decision was narrow, though, and Washington

Past rulings have required unions to notify nonmembers of the opportunity for a rebate of the fees that go beyond bargaining. Cases have dictated a procedure for non-members to “opt out” of political activities. The Washington law was an “opt in” policy, allowing fees to be used only if authorized. State officials and non-union teachers claimed the Washington Education Association used their fees for politics without consent. The union countered that the law was a burden that restricted its right of political expression. In deciding Davenport v. Washington Education Association, Scalia said a state court that ruled for the union wrongly believed that non-members have the burden of objecting before a union is barred from spending their fees. Separately Thursday, the justices by a 5-4 vote rejected an appeal from an Ohio murder convict who missed a federal filing deadline by two days. He had missed it because of wrong information given him by a U.S. district court judge. Justice Clarence Thomas, on behalf of the majority in Bowles v. Russell, said that if Congress thinks such “rigorous rules” are “inequitable,” it should act. He was joined by Chief Justice John Roberts and Justices Scalia, Anthony Kennedy and Samuel Alito. On the dissension side, Justice David Souter wrote, “It is intolerable for the judicial system to treat people this way.”


By Bill Mears June 14, 2007 WASHINGTON (CNN) -- The U.S. Supreme Court on Thursday upheld a Washington state law restricting use of union dues for political purposes in a pair of cases that melded free speech, election advocacy and workplace rights. At issue was whether states could force labor unions to obtain direct permission from workers before spending their mandatory “shop fees” on partisan politics, including candidates and issues that many workers may not support. “No suppression of ideas is afoot,” wrote Justice Antonin Scalia, “since the union remains free as any other entity to participate in the electoral process with all available funds other than the state-coerced agency fees lacking affirmative permission.” State officials were among those who brought the high court appeal on behalf of a few thousand public school teachers who refused to join their union. Under a voter-approved ballot initiative, those nonunion workers can still be charged an annual service fee -- equal in amount to union dues -- but only to help pay for traditional labor negotiations. Those fees cannot be spent on most types of political activities, under the 1992 law, “unless affirmatively authorized by the individual.” The sticking point was how and when teachers must express their opposition to having their fees used to influence elections.

The justices essentially split the difference over the requirement provision. While the court said states could require unions to get permission, it said there also would be nothing inherently wrong with having the nonmember personally inform the union he or she wanted a refund of part of their fees, commonly called the “opt out” requirement. Washington’s new law reflects that provision. The old law put the burden on the union to secure advance written permission from nonunion workers before any of their money was spent “to influence an election or to operate a political committee.” That was the focus of the original lawsuit, and the justices said that, too, would be acceptable. Despite the narrow limits of the ruling, other states may be inspired by the high court’s action to pass similarly restrictive laws. With about 80,000 members, the Washington Education Association is the largest teachers’ union in the state. Officials said about 5 percent of those represented by the group are not members. The union’s attorney, John West, told the high court that Washington’s law is unfair because it is a “content-based restriction that singles out political speech for special treatment.” States, labor unions and legal scholars are at odds over the potential impact of a high court ruling. Six other states backing Washington had warned in a legal brief that a ruling against them could unravel a variety of protections placed on how unions treat members and nonmembers. But some labor officials closely watching the case said Washington state’s previous restrictions were unique, and the Supreme Court in the past has affirmed the right of unions to collect money from nonmembers, in the belief unions benefit all workers, and overall labor relations.

CNN.com

High court rules against unions on election spending

The impact of the ruling may be limited since Washington’s law was the only one of its kind in the nation. And the “permission” provision was changed this year by the governor’s office and legislature, both controlled by Democrats.


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The law also required the unions to refund the fee to nonmembers who oppose the political activity proposed by the union.

High court limits union use of nonmember fees Jun 14, 2007 WASHINGTON (Reuters) - The Supreme Court on Thursday unanimously upheld a Washington state law that restricts how labor unions can use fees collected from nonmembers for political purposes.

Reuters

The high court ruled the restrictions covering labor unions for public employees do not violate the union’s constitutional free-speech rights to engage in political advocacy. Washington voters in 1992 adopted a campaign finance law that required unions to get the consent of each worker before spending fees on political activity, such as campaigning for or against various measures.

The case involved the Washington Education Association, the state’s largest teachers union. About 4,000 of the more than 70,000 people it represents choose not to be members, according to the union, which said Washington is the only state in the nation with such a law. Lawyers for the state and the Bush administration urged the Supreme Court to uphold the law because it was designed to regulate campaign financing in state elections. The high court agreed in an opinion written by Justice Antonin Scalia. “The purpose of the voters of Washington was undoubtedly the general one of protecting the integrity of elections by limiting electoral spending in certain ways,” Scalia said. “Quite obviously, no suppression of ideas is afoot, since the union remains as free as any other entity to participate in the electoral process with all available funds other than” those fees by nonmembers who refuse to give their approval, Scalia said.


acted in good faith,” he said.

Brad Shannon June 14, 2007 The U.S. Supreme Court on Thursday upheld Washington’s voter-approved campaign-finance law in a long-running dispute about the state teachers union’s use of nonmembers’ fees for political purposes. The ruling reverses a finding by the state Supreme Court last year that struck down provisions of Initiative 134. The state court had found nonunion members were not harmed because they had a right to “opt out” of paying for politics. The U.S. court disagreed, upholding the “opt-in” provision of the 1992 initiative. “It means that the First Amendment rights of these teachers who are nonunion members are important and are subject to protection by the state, and that it does not unduly burden the unions to ask permission before spending their fee money on politics,” state Attorney General Rob McKenna said of the high court’s ruling. The Washington Education Association teachers union insists it never did anything wrong and tried to comply with state campaign-finance requirements in its support of two ballot measures in 2000 — one for K-12 class-size reductions and the other to guarantee yearly cost-of-living increases for school personnel. The case returns to the state Supreme Court and is far from over, said Charles Hasse, president of the 80,000-member WEA. “Today we are confident the courts will agree we

Thursday’s ruling fell short of answering a question the Virginia-based National Right to Work Legal Defense Foundation had posed on behalf of teacher Gary Davenport. Davenport sued the WEA six years ago over alleged use of his agency shop fees, which he paid in lieu of dues, for political purposes. The foundation had sought a prohibition on automatic collections of union dues for political purposes. The Davenport case was joined with a separate case pitting the state Public Disclosure Commission against the WEA over its campaign finances. “We were a little disappointed,” foundation spokesman Patrick Semmens said. “But it was important that they overturn the Washington state Supreme Court decision,” which found the campaign law interfered with the union members’ free-speech rights. Still to be addressed in state court is whether to reinstate Thurston County Judge Gary Tabor’s finding six years ago that the WEA must pay more than $590,000 in fines and legal fees. That order was set aside by the state Court of Appeals. “They definitely are going to be held accountable for past violations of the law,” said Mike Reitz of the Evergreen Freedom Foundation, a conservative Olympia think tank that initiated the complaints and lawsuits against the WEA over its political spending. A key issue has been whether the WEA could spend money from its general treasury, which contains both payments of dues and shop fees — even if the amounts spent on campaigns were small enough that no shop fees would have been touched. Shop fees cover the costs of collective bargaining for wages and other benefits that accrue to members and nonmembers alike.

The Olympian

High court rejects ‘opt out’

The state Supreme Court, which originally ruled 6-3 in the WEA’s favor, could revisit the state campaign-finance law or send the legal issues to the state Court of Appeals to decide, Hasse added.


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homosexual marriage and abortion issues.

World Net Daily

Teachers’ free speech trumps union politics

“Some of the teachers appreciate collective bargaining but don’t like union politics,” he told WND. “Some of the teachers are pro-life, some are against homosexual marriage. For a number of reasons they preferred to not have the union speak for them politically and have their own dollars used against them.”

By Bob Unruh June 14, 2007

Diane Lenning, an English and history teacher, said, “My major objections to the NEA are that there is an operative glass ceiling for moderate and conservative Republicans, independents and Christians.”

The U.S. Supreme Court, in a decision that could impact millions of public-sector employees nationwide, concluded today the First Amendment right of teachers trumps the speech privileges of organized labor.

Added Cindy Omlin, a speech pathologist. “There were many political causes that they were funneling my union dues toward that I found to be very offensive.”

The decision, in the consolidated Washington vs. Washington Education Association and Davenport vs. WEA cases, found organized labor, such as teachers associations, have no “constitutional right” to use money collected as “agency fees” from nonmembers for political purposes. “We are elated that the U.S. Supreme Court has honored the First Amendment rights of teachers by overturning the state Supreme Court’s decision,” said Bob Williams, president of the Evergreen Freedom Foundation, which has worked on the case for a decade. “The court understood that the constitutional rights of teachers should be protected and are not superseded by the union’s statutory rights. “This ruling will help protect non-member teachers from having their agency fees used on union politics against their will,” he said. Booker Stallworth, communications director for the foundation, told WND the case originated with a list of teachers who had a variety of complaints about the Washington Education Association’s dedication of its financial resources to help causes to which the teachers objected, including

“I wanted to be congruent with my beliefs,” said Karen Petty, another instructor. “My dues were going to causes that personally I would go against.” The case focused on a Washington initiative, approved by voters, that required labor organizations to get permission from nonmember workers before using mandatory dues for political purposes. In many cases, workers are not required to be union members but must pay a fee equivalent to union dues because they are the beneficiaries of collective bargaining. Unions, however, are increasingly active politically, and many times support causes such as homosexual marriage and the abortion industry under the guise of “rights” -- issues Christians and others would choose not to back. WEA had admitted to multiple violations of the Washington law during an investigation then was fined more than $590,000 for its actions. However, on appeal, the Washington state Supreme Court concluded the “free speech rights” of the union superseded the First Amendment rights of the


“The agency-fee cases did not balance constitutional rights in such a manner, because unions have no constitutional entitlement to nonmember-employees’ fees,” the U.S. Supreme Court countered. “For First Amendment purposes, it is immaterial that [state law] restricts a union’s use of funds only after they are within the union’s possession. The fees are in the union’s possession only because Washington and its union-contracting government agencies have compelled their employees to pay those fees.” “As applied, … [Washington state law] is not fairly described as a restriction on how the union can spend ‘its’ money; it is a condition placed upon the union’s extraordinary state entitlement to acquire and spend other people’s money,” the Supreme Court said. “The next step is to make sure the law is strongly enforced … to ensure the WEA and other unions are in compliance,” Williams said. “The WEA has been busily attempting to undermine the law while it was under Supreme Court review.” “There are two fundamental issues,” Stallworth told WND. “First, the First Amendment is primarily, and above all, an individual right, and the rights of organizations to use money for politics do not supersede the rights of individuals to speak for themselves about their religious views, the core of their conscious. “We hold that it does not violate the First Amendment for a state to require that its public sector unions receive affirmative authorization

from a nonmember before spending that nonmember’s agency fees for election-related purposes,” the opinion said. The WEA is Washington’s largest teachers union, representing about 70,000 workers. In an editorial, the Washington Times noted the concept that unions could coerce payments from nonmembers for their political activities. “How strange: The WEA extracts … agency fees from nonmembers in excess of collectivebargaining costs; the WEA then spends the difference on political activities that many nonmembers oppose; and the Washington Supreme Court asserts that it is the free-speech rights of the union that are violated by the prior-consent requirement.” James Kilpatrick said it was more basic than even the First Amendment. “[T]he cases involve a principle as fundamental as the Eighth Commandment. The Eight is the one that says we shall not steal.” The Pittsburgh Tribune-Review called it a case of union tyranny. “No union has any right to speak for a nonmember on matters political unless it has his affirmative permission. Otherwise, it’s an infringement on the individual’s rights – and individual who has already chosen, probably with trepidation, not to join the union. We shall see how well the U.S. Supreme Court deals with the tyrants who run labor organizations.”

World Net Daily

individuals.


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but it may set the stage for broader antiunion battles in the future. For example, union opponents may seek to apply the same legal reasoning to union members who object to a portion of their union dues being used to support political causes they oppose.

The Christian Science Monitor

High-court ruling may set stage for more antiunion battles By Warren Richey June 15, 2007 WASHINGTON - Public-sector labor unions can be forced by a state government to first obtain permission of nonmembers of the union before using their fees to influence political campaigns. In a unanimous ruling announced on Thursday, the US Supreme Court upheld a 1992 Washington State campaign-finance law that required unions to obtain the affirmative agreement of nonmembers that a portion of their fees could be used for politics. The opinion comes in a case involving the 70,000member Washington Education Association (WEA). At issue was whether the state could require the union to obtain explicit permission from some 3,000 nonunion members rather than the implied consent obtained under the union’s preferred opt-out procedure. The law at the center of the case has since been rewritten, eliminating the provision that required affirmative agreement. But the high court’s holding may have broader significance beyond Washington State. The decision comes amid an ongoing nationwide effort by several conservative groups to challenge the use of union treasury funds to influence political campaigns. The high-court decision only applies to nonmember fees at public-sector unions,

In the Washington State case, the union had fought the new campaign-finance law in court, saying it violated its First Amendment right to advance the union’s goals through political advocacy. The fee issue arose because by law, all teachers in Washington State must be represented by the union for contract and other collective-bargaining issues. As a result, all teachers – even those who choose not to join the union – must agree to have their paycheck deducted by the equivalent of union dues. The mandatory deduction means the union compiles a pool of funds from nonmembers. The law allows the union to use a portion of the funds for politics, but union leaders must obtain permission. The WEA had adopted an opt-out system, obtaining permission from nonmembers by sending them a thick packet of information twice a year. If the nonmembers objected to the use of their fees for politics, they could opt out by writing a letter notifying the union that they objected. The political portion of their fees would be refunded. If the union did not receive the returned form, union officials interpreted that as consent to use the fees for politics. Consent was assumed even in cases where the letter might have been lost in the mail or the nonmember simply forgot to write or mail it. In contrast, the 1992 state law mandated that labor leaders use an opt-in system, requiring the union to obtain affirmative permission from nonmembers before the union could use the fees for politics. If no permission was received, the union was supposed to return that portion of the fees to nonmembers. The Washington Supreme Court struck down the 1992 campaign-finance law as an unconstitutional infringement of the WEA’s First Amendment rights


On Thursday, the US Supreme Court reversed that decision, saying that the law did not violate the union’s First Amendment rights. “Unions have no constitutional entitlement to the fees of non-member employees,” Justice Antonin Scalia wrote for the court. “The principal reason the Supreme Court of Washington concluded that [the law] was unconstitutional was that it believed that our agency-fee cases, having balanced the constitutional rights of unions and non-members, dictated that a non-member must shoulder the burden of objecting before a union can be barred from spending his fees.” But that was the wrong balance to strike in the Washington State case, Justice Scalia said. In earlier cases, the US Supreme Court had established that a worker’s dissent was not to be presumed. The high court had ruled that a dissenting employee must make his objection known to the union. Scalia said this created a perceived constitutional

balance that was misconstrued. The earlier decisions of the US Supreme Court established a minimum set of procedures. States such as Washington are free to enact more rigorous regulations, he said. “The mere fact that Washington required more than the … minimum does not trigger First Amendment scrutiny,” Scalia wrote. “The constitutional floor for unions’ collection and spending of agency fees is not also a constitutional ceiling for state-imposed restrictions.” The decision continues: “The Supreme Court of Washington read far too much into our admonition that ‘dissent is not to be presumed.’ We meant only that it would be improper for a court to enjoin the expenditure of the agency fees of all employees, including those who had not objected, when the statutory or constitutional limitations established in those cases could be satisfied by a narrower remedy.” The decision comes in two consolidated cases, Davenport v. Washington Education Association (No. 05-1589) and Washington v. Washington Education Association (No. 05-1657).

The Christian Science Monitor

to engage in political activities without government interference.


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affirmed that no one has to be forced to pay for a union’s politics against their choice.” The narrow issue before the justices was whether, as the law formerly prescribed, employees must consent to having some of their money used in election campaigns.

Court rules against unions in fee case

The Seattle Times

By Andrew Garber June 15, 2007 The U.S. Supreme Court ruled on a Washington state case Thursday, saying states can force publicemployee labor unions to get consent from workers before using their fees for political activities. However, the ruling will have no immediate effect in Washington because the Legislature recently modified the law in a way that blunts the court’s decision. The unanimous decision Thursday deals with an old state law, passed by initiative, that barred unions from spending a nonmember’s fees on politics unless that worker gives explicit permission. Like many states, Washington allows collectivebargaining agreements that require workers who choose not to join the union to pay “agency fees” to help cover contract negotiations and other union expenses. The case started with a complaint filed by the Evergreen Freedom Foundation, a conservative think tank in Olympia that accused the Washington Education Association of unlawfully spending worker fees on politics. In response to that complaint, the state sued the WEA in 2000. While the decision won’t have much practical impact locally, Mike Reitz, director of labor policy for the Evergreen Freedom Foundation, said, “We are still thrilled with the ruling because the court

The justices unanimously ruled that a state could indeed require such consent. The Washington law now says that when labor organizations make political-campaign contributions, they’re not considered to be using agency shop fees when their general treasury has enough money to cover the contributions from other revenue sources. In practice, that means public-sector unions do not have to get special permission to spend nonmembers’ union fees on politics. It’s expected that the new state law will be challenged in court. And Washington state Attorney General Rob McKenna said the U.S. Supreme Court ruling “clears the way” for a new initiative or the Legislature to pass a law requiring that unions get permission before spending the money. In the meantime, McKenna plans to go back to the state Supreme Court and ask it to reinstate the fines against the WEA imposed by the lower court ruling. “It’s important that people follow the laws at the time that they’re written,” he said. Charles Hasse, president of the WEA, said his union did nothing wrong and never spent nonmembers’ fees on politics. “We’re very confident at the end of the day that courts will find we acted in good faith and made every effort to comply with the law,” he said. The case had been working its way through the courts for several years. In 2001, a Thurston County judge sided with the state and the Freedom Foundation by ruling


that the teachers union had committed multiple violations of the prohibition against using agency fee money for politics. The union was slapped with nearly $600,000 in fines and legal fees. But in a 6-3 ruling last year, the state Supreme Court struck down the state law’s provision that the union get permission from each nonmember. The court said it posed an unconstitutional burden on the union’s free-speech rights.

McKenna appealed the case to the U.S. Supreme Court, arguing the union had no First Amendment right to use nonmembers’ fees for political purposes. The case was later consolidated with a class-action suit against the union filed by five teachers who didn’t belong to the WEA.

The Seattle Times

The state court said the union, by sending twiceyearly notices, had given nonmembers a “simple and convenient method of registering dissent.”


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“By hastily passing the ‘agency shop fee’ bill, the Legislature and the governor betrayed state government’s most basic responsibility as an employer, which is to treat all employees fairly,” Chandler said.

McKenna calls decision ‘important victory’ for workers

The Columbian

By Kathie Durbin June 15, 2007 Washington Attorney General Rob McKenna hailed Thursday’s U.S. Supreme Court ruling requiring public employee unions to get permission from nonunion members before spending their union fees for political purposes. “This is an important victory for the First Amendment rights of workers,” McKenna said in a statement. “Thanks to the great team of attorneys on this case, we were able to present a persuasive argument in favor of protecting workers’ political freedoms.”

House Bill 2079 allows public employee unions to undertake political activities without consent of nonunion employees if they can show they have enough money in their treasuries to pay for those activities without tapping dues paid by nonunion workers. Until last month, state law prohibited unions from using fees deducted from the paychecks of nonunion employees to contribute to election campaigns or operate political action committees without their permission. The law, called the Fair Campaign Practices Act, was enacted in 1992 as a result of a citizen initiative. In 2006, the Washington Supreme Court ruled that the 1992 law was an unconstitutional infringement on the First Amendment rights of unions. McKenna appealed that ruling to the Supreme Court. House Bill 2079, backed by public employee unions, passed the House on a 55-42 vote and the Senate 29-20, largely along party lines. Among Clark County legislators, Rep. Deb Wallace, DVancouver, crossed party lines to oppose the bill.

The unanimous ruling represented a win for McKenna, a Republican, in the first case he has argued before the Supreme Court.

Gregoire signed the bill May 11. Because it was passed with an emergency clause, it took effect immediately.

“The court ruling confirms what the voters have always understood: it is wrong to coerce employees to support causes or candidates against their will,” said Rep. Bruce Chandler, R-Granger, in a statement released after the ruling. “Being a public employee does not mean surrendering your freedom to decide for yourself who you will support or oppose.”

It was Gregoire, as attorney general, who originally argued the constitutionality of the Fair Campaign Practices Act in 2004.

But Chandler and other Republican legislators chastised Democratic leaders, including Gov. Chris Gregoire, for pushing a bill through this year’s legislative session that critics say was designed to circumvent the court’s decision.

Lars Ericksen, a spokesman for the governor, said she would have no comment on the Supreme Court ruling. The Evergreen Freedom Foundation, an Olympiabased think tank that joined in a related classaction suit on behalf of nonunion workers, said the ruling could potentially affect millions of unionrepresented workers nationwide. The Supreme Court combined the two cases in its review.


Attorney Mike Reitz, director of labor policy for the foundation, predicted that the 2007 rewrite by the Washington Legislature will be challenged in court.

The Columbian

“The state attorney general strongly opposed the passage of the bill and warned it was unconstitutional,” Reitz said. “The Legislature chose to pass it and the governor chose to sign it anyway.”


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individual.”

High Court Allows a Curb on Union Political Activity

The Wall Street Journal

by Jesse Bravin June 15, 2007 WASHINGTON -- The Supreme Court allowed states to curb political activity by public-employee unions at least in a small way, upholding laws that require them to obtain consent from nonmembers they represent before spending their mandatory fees for electioneering. The case came from Washington state, where the teachers union has been fighting with dissenting teachers who refuse to join the union but, under collective-bargaining agreements with school districts, must pay fees to the union that negotiates their contracts. Under Supreme Court rulings dating to the 1970s, nonmembers can’t be forced to pay fees that public-employee unions will use for political or purposes outside collective bargaining. But states have been free to regulate how that right is applied, specifically, whether the burden is on the nonmember to object or the union to obtain his or her consent. In 1992, Washington voters approved a campaignfinance initiative that included a provision that barred unions from spending nonmembers’ fees “to influence an election or to operate a political committee, unless affirmatively authorized by the

The Washington Education Association, representing some 80,000 employees, didn’t make it easy to exercise that right. It sent nonmembers a six-page packet of dense text directing them to write a letter of objection to the union’s legal department within 30 days to get a refund of the part of their fees not used for collective-bargaining purposes, about 25%. About 5% of Washington teachers decline membership, the union says. Several dissenting teachers, backed by antiunion groups, won court rulings that found the association hadn’t followed the 1992 law’s requirements. But last year, Washington’s supreme court struck down the provision itself as an unconstitutional burden on the union’s First Amendment rights. That ruling puzzled many observers, because states can impose far greater strictures on unions. For instance, under so-called right-to-work laws, 22 states prohibit contract provisions that require union members to pay dues and nonunion workers to pay fees as a condition of employment. Writing for a unanimous U.S. Supreme Court, Justice Antonin Scalia pointed out this anomaly: “The notion that this modest limitation... violates the First Amendment is, to say the least, counterintuitive.” But the opinion is unlikely to have wide impact. The justices expressly limited it to publicemployee unions, reserving the issue’s application to the private sector for another day. No other state has a law that operates precisely like Washington’s -- and, after the union realized its chances were dim at the Supreme Court, it persuaded the state legislature to amend the provision, effectively gutting it. (Davenport v. Washington Education Association)


threw that ruling out. Justice Antonin Scalia’s opinion for the court noted, “The notion that this modest limitation upon an extraordinary benefit violates the First Amendment is, to say the least, counterintuitive.”

By Charles Lane June 15, 2007 The Supreme Court yesterday unanimously upheld a Washington state law that requires public employee unions to get permission before making political contributions using fees they collect from nonmembers. The law, unique in the nation, was adopted in a 1992 referendum to limit unions’ spending of the “agency fees” they deduct from the paychecks of employees who do not belong to the unions but are represented by them in collective bargaining. Washington state’s Supreme Court struck the law down, saying that forcing the Washington Education Association (WEA), a teacher union, to get written waivers from employees before using their agency fees burdened the union’s free-speech rights. Yesterday, however, the U.S. Supreme Court

The state law applied to all unions, public and private sector alike, but Scalia noted that yesterday’s ruling affects only public-sector unions. The cases against the WEA were originally filed by both the state of Washington and individual teachers supported by conservative legal foundations, which have called the issue a major test of workers’ rights to dissent from union political activities. Though no other states have adopted laws similar to Washington’s, yesterday’s ruling confirms that they have a right to do so. But its immediate practical impact in Washington state was limited by the legislature’s adoption of a new law on May 10 that stipulates union political spending is not considered to come from agency fees. The WEA supported the law. But the new law did not make the case moot, Scalia noted, because the teachers who sued are still hoping to collect money damages from the union based on the alleged past violation of their rights. The consolidated cases are Davenport v. Washington Educational Association, No. 051589, and Washington v. Washington Educational Association, No. 05-1657.

The Washington Post

High Court Upholds Curb on Political Use of Union Fees


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candidates. Thursday’s ruling in favor of such a law in Washington state implicitly endorsed those efforts.

Supreme Court rules against public employee unions

Los Angeles Times

By David G. Savage June 15, 2007 WASHINGTON — In a setback for organized labor, the Supreme Court ruled Thursday that states may bar public employee unions from using compulsory dues for political purposes unless individuals give their explicit approval. The 90 ruling opens the door for states to pass laws restricting use of union dues. Nationwide, 12 million workers in public- and private-sector jobs are required to pay dues or fees to a union even if they elect not to join, and the National Right to Work Committee and other opponents of unions have fought these forced dues as unconstitutional. FOR THE RECORD: Supreme Court: A headline on an earlier version of this story said the Supreme Court had ruled that public employee unions needed members’ explicit approval before using their dues for political advocacy. The court ruled only that states could pass laws to impose such a requirement.. — President Bush and other conservatives have campaigned in favor of “paycheck protection” laws to limit the political use of union dues, long a major source of funding for Democratic

But these laws have gained little traction in Congress or around the nation. Twice in the last decade, California voters have rejected ballot initiatives that would have required unions to ask the permission of employees before using their dues for politics. The most recent defeat came in 2005, when Proposition 75, strongly backed by Gov. Arnold Schwarzenegger, lost by 7 percentage points. While some union foes called the court’s ruling an important victory and predicted it would lead to other such laws, the National Right to Work Committee acknowledged that the court decided a narrow issue and that its direct effect figures to be limited. The justices did not say it was unconstitutional to require schoolteachers and other public employees to pay dues to a union, as anti-union groups had hoped. Rather, it said only that states that allow public sector unions may also protect the rights of dissidents. At issue before the court was a unique Washington state law that said unions may not collect fees from a nonmember and spend this money on politics unless “affirmatively authorized by the individual.” The state’s largest teachers union challenged this rule in court, and the Washington Supreme Court struck down the restriction as a violation of the union’s rights. The Supreme Court had no difficulty overturning that decision in Davenport vs. Washington Education Assn. “Unions have no constitutional entitlement to the fees of nonmember employees,” Justice Antonin Scalia said. “It is undeniably unusual for a government agency


Nationwide, 28 states authorize public unions to collect mandatory fees from all employees, while 22 states forbid it. Requiring unions to obtain an explicit approval from dissident teachers before spending their dues money is a “modest limitation … on the union’s exercise of this extraordinary power” to collect forced dues from all teachers, Scalia continued. The decision maintains the uneasy compromise that the court set in the 1970s when unions took hold in the public sector, organizing schoolteachers, firefighters, police officers and other public employees. On the one hand, unions can require all employees to pay fees or dues to cover the cost of collective bargaining, at least in states that authorize “agency shop” rules. But in 1977 the court said dissident employees have a free-speech right not to be forced to pay for political causes they oppose. But reconciling those two principles continues to pose problems. Union leaders prefer a rule that allows them to use dues money except when dissidents object and seek a refund in writing. Antiunion activists have fought this approach, saying it gives unions too much leeway to spend the money of dissidents. Anti-union activists and union officials were

divided on whether Thursday’s decision would prove significant. “We are thrilled. This is a clear victory for the 1st Amendment rights of teachers not to fund political activity against their will,” said Michael Reitz, a lawyer for the Evergreen Freedom Foundation in Olympia, Wash., which supported the dissident teachers. The ruling “paves the way for state legislatures to adopt paycheck protection across the country.” However, Stefan Gleason, a vice president of the National Right to Work Committee, called the decision a disappointment. “America’s workers laboring under compulsory unionism are little better off after today’s ruling,” he said.

He said he hoped the high court would go further and say it was unconstitutional to force nonmembers to pay hundreds of dollars a year to a union. “The solution is to stop forced union dues in the first place,” he said in an interview. “The paycheck protection laws are misguided and ineffective. It’s not a good strategy to pursue.” The nation’s largest teachers union said the decision “will have little or no practical impact.” Indeed, Washington’s law was the only one of its kind, and it no longer applies, as the Legislature later amended it in favor of the unions. Bob Chanin, general counsel for the National Education Assn., said, “It is rare that I can honestly say we are pleased with a unanimous Supreme Court decision reversing our win in the court below, but this is one of those occasions.”

Los Angeles Times

to give a private entity the power, in essence, to tax government employees,” he said, referring to the “agency shop” laws in many states that permit such arrangements in the public sector.


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