Opposition Brief — Davenport v. Washington Educ. Ass'n

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|_SUPREM® COURT, U.S.

IN THE

Supreme Court of the United States

GARY DAVENPORT, ef ai.,

Petitioners,

Vv.

WASHINGTON EDUCATION ASSOCIATION,

Respondent.

WASHINGTON,

Petitioner,

Vv.

WASHINGTON EDUCATION ASSOCIATION,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Washington

BRIEF IN OPPOSITION

JUDITH A. LONNQUIST JOHN M. WEST

1218 Third Avenue, Suite 1500 (Counsel of Record)

Seattle, WA 938101 LAURENCE GOLD

(206) 447-9186 BREDHOFF & KAISER, P.L.L.C.

HARRIET STRASBERG 805 Fifteenth Street, N.W.

3136 Maringo SE ~s¢-t a

Olympia, WA 98501 ashington,

(360) 754-0304 (202) 842-2600

Counsel for Respondents

VALson-Epes PRINTING Co., Inc. — (202) 769-0096 : WASHINGTON, D.C. 20001

Senate

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QUESTION PRESENTED

The federal government and the great majority of the states

regulate union and corporate political contributions and

expenditures in various ways and to various degrees. Of all

these jurisdictions the State of Washington alone has made it

unlawful for a union to finance what would otherwise be

lawful political advocacy as a matter of state law (and what is

lawful political advocacy financed with treasury funds by

corporations}—including contributions in support of or in

opposition to ballot propositions, independent political ex-

penditures, and internal political communications—-from a

general fund made up primarily of union members’ dues

moneys and secondarily of employee-nonmembers’ agency

fee payments, unless the union has secured the affirmative

consent of each individual payer of an agency fee to the

financing of the union’s political advocacy through the

union’s treasury moneys. Washington does so even though

the interest of the employee-nonmembers who pay agency

fees, which is asserted as justifying the prohibition, is already

protected by the fee-payers’ constitutional “objection” right

not to pay the union an amount equal to the portion of union

dues that goes for the union’s political and other expenditures

not germane to collective bargaining.

The question thus presented is:

Whether, as the Washington Supreme Court held, the State

of Washington’s sui generis regulation of union political

expression through Wash. Rev. Code § 42.17.760 imper-

missibly burdens the First Amendment right of unions and

their members to free speech by creating an “insurmountable

..- hurdle{] ... to engag[ing} in political speech” that is

not narrowly tailored to advancing any compelling govern-

mental interest?

(i)

ii

CORPORATE DISCLOSURE STATEMENT

Respondent Washington Education Association is organ-

ized as a nonprofit corporation. It has no parent corporation,

and no publicly held company owns any stock in it.

TABLE OF CONTENTS

QUESTION PRESENTED........ccecsscovsvcsssvcscssseessesensecees

CORPORATE DISCLOSURE STATEMENT..............

TABLE OF AUTHORITIES.............ccsssssossrsosessesesssssese

STATEMENT ..

ARGUMENT...

CONCLUSION

SEER EEE EERE EEE EEE EEE HEHEHE EEE ETE EERE EHH HED

SOCORRO EEE ERE EEE EE EERE EEE REE EEE ETE TEETER EERE REE EE

(iii)

ii

iv

19

iV

TABLE OF AUTHORITIES

CASES Page

Abood v. Detroit Bd. of Educ., 431: U.S. 209

CRF FA ccsciccitesichicitinhinsinrctesebbitenaligteaaiiaatiaaeabdeins 3

Buckley v. Valeo, 424 U.S. 1 (1976).........:0ccecceeeee 16, 17

Chicago Teachers Union v. Hudson, 475 U.S. 29

PO icccsssecencvsvcnstedethsbnsoveabvinneceibaideddanaligasnealia 4

Crisman v. Pierce County Fire Prot. Dist. No.

21, 60 P.3d 652 (Wash. Ct. App. 2002)............. 8

FEC v. Beaumont, 539 U.S. 146 (2003)................ 17,18

FEC v. Massachusetts Citizens for Life, Inc., 479

CED, Fe CIID scienisinencesisivcidinnaiandaiiasenesiaamals 10, 17, 18

FEC vy. National Right to Work Committee, 459

OLB, TGF CEG) cecasicsncsiccenctesicsteitsliibopndadegtinatinhale 17, 18

First National Bank v. Bellotti, 435 U.S. 765

(RPE ovsecscininicnnithiniistshinansiensipendiaiaiiaimcmatsins 10, 16, 18

Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507

CRIED orecnaasiistcsinsscnineieinnpeacistnitanseissindbeitinaansabasan 3

Lincoln Federal Labor Union 19129 v. North-

western Iron & Metal €o., 335 U.S. 525

CROP <i cccvocecisitennnscinciiainesinnabniaiamnioaumiaasaiiads 13

Michigan State AFL-CIO v. Miller, 103 F.3d :

SDE GEE CR FOE cccccices, ccncstansaibiadciiniediitiete 14

Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377

FI sco cinisccssatnitehcicicsaciesesansbdaibiataltsiibesataapeie 18

Randall v. Sorrell, 126 S. Ct. 2479 (2006)............ 10

Smith v. Arkansas State Highway Employees

Local 1315, 441 U.S. 463 (1979) .........ceceeeee 15

South Carolina Education Association v.

Campbell, 883 F.2d 1251 (4th Cir. 1989).......... 13

State ex rel. Evergreen Freedom Found. vy.

Washington Educ. Ass'n, 999 P.2d 602 (Wash.

Vv

TABLE OF AUTHORITIES—Continued :

Page

State ex rel. Washington State Public Disclosure

Commission v. Washington Education Asso-

ciation, 130 P.3d 352 (Wash. 2006).................. l

United States v. Boyle, 482 F.2d 755 (D.C. Cir.

ee liicinlnhctrkiptsnitncalthtidatciatahnesenciniianeginienniemnaneserss 15

STATUTES

Be A TE dcadtiebetondeietinernnsetedenenevcseniasonete —

eT inna hina ciicernsdnahtipbeebeneenenineatioagtate

2 U.S.C. § 44. 1D(D)(2)(A).......ccceeseceeseserseeeeeeeenees

pL 5 AN

BE en Wy te Oi Pi acccnatenscesannsicnescsassesececcnsensees

Md. Code Ann., Educ. § 6-504(d)(3)(iv)(1).......... 1]

Md. Code Ann., Educ. § 6-504(d)(3)(iv)(2).......... 11

Mont. Code Ann. § 39-31-402(3) ........cccccccceseeeseees

Mont. Code Ann. § 39-32-109(2)(d) ...0..........cc000-

Wash. Rev. Code §§ 28B.52.010 ef seq. ...............

Wash. Rev. Code § 28B.52.045.00........ccccccceeeeseeees

Wash. Rev. Code § 28B.52.045(2) ...........cccceceeeee:

Wash. Rev. Code §§ 41.56.010 ef seq. ..................

Wash. Rev. Code § 41.56.120 .0..........ccccccccccseeeeeees

Wash. Rev. Code § 41.56.122(1).........ccccccccceceeeeeee

Wash. Rev. Code § 41.56.0800 .0...........ccccccceceseeees

Wash. Rev. Code §§ 41.59.010 ef seq. ..........cc0.000+

Wash. Rev. Code § 41.59.060(2)...........ccccccessseeeees

Wash. Rev. Code § 41.59.0090 00.0.....cccccccecceceseeees

Wash. Rev. Code § 41.59.1000... ..ccccccccccceeeseees

Wash. Rev. Code §§ 41.76.001 ef seq. 0.0.0.0...

Wash. Rev. Code § 41.76.015 ...........ccccccccceeseeeees

Wash. Rev. Code § 41.76.040 ....0...ccccccccsecesseesees

Wash. Rev. Code § 41.76.045(2).........cccccccccsseeeees

Wash. Rev. Code § 42.17.020(17)........0.0ccccccccee.

Wash. Rev. Code § 42.17.020(38)..........cccccccccceees

— tet

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MA WW NN Ww NWN DN WY WD WY WS DN

vi

TABLE OF AUTHORITIES—Continued

Page

Wash. Rev. Code §§ 42.17.350 ef Seq. ..........0.000 5

Wash. Rev. Code § 42.17.680(3)..............ccceceeeees 14, 15

Wash. Rev. Code § 42.17.760 ...........sccsccsscseeseseees passim

IN THE

Supreme Court of the United States

Nos. 05-1589, 05-1657

GARY DAVENPORT, ef al.,

Petitioners,

Vv.

WASHINGTON EDUCATION ASSOCIATION,

Respondent.

WASHINGTON,

Petitioner,

Vv.

WASHINGTON EDUCATION ASSOCIATION,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Washington

BRIEF IN OPPOSITION

Respondent Washington Education Association respect-

fully urges the Court to deny the above-styled Petitions for_

Writ of Certiorari, both of which seek review of the decision

of the Washington Supreme Court in State ex rel. Washington

State Public Disclosure Commission v. Washington Educa-

tion Association, 130 P.3d 352 (Wash. 2006).

2

STATEMENT

A. The Washington Education Association (“WEA”) is a

labor organization which, through its 370 local affiliates, acts

as the exclusive bargaining representative of over 70,000

teachers and other educational. employees of public school

districts, community colleges, and universities in the State of

Washington under Washington’s Educational Employment

Relation’ Act, Wash. Rev. Code §§ 41.59.010 ef seg., and

other statutes governing public employment. '

Like most labor organizations, WEA works to advance the

interests of the employees it represents through a variety of

forms of concerted activity, ranging from the negotiation and

enforcement of collective bargaining agreements to political

advocacy. During the years at issue in this litigation, WEA’s

political advocacy expenditures required to be reported to the

state Public Disclosure Commission varied between 0.5% and

3.2% of its total expenditures.

Just over 95% of the employees WEA represents have

chosen to join WEA as union members and pay union dues

into WEA’s general fund from which the union finances its

activities. The remainder of those employees, fewer than 5%,

have chosen not to become WEA members (and consequently

have no obligation to pay such dues).

Washington law requires that a public-sector union like

WEA represent the employee-union members and the em-

ployee-nonmembers in its bargaining units on an equal basis.

Wash. Rev. Code §§ 41.59.090, 41.56.080, 41.76.015. To

' The vast majority of the employees represented by WEA are covered

by the Educational Employment Relations Act, which applies to certifi-

cated employees in elementary and secondary schools. Classified em-

ployees are subject to the Public Employees’ Collective Bargaining Act,

Wash. Rev. Code §§ 41.56.010 et seg., while the labor relations of com-

munity college and university faculty members are governed respectively

by Wash. Rev. Code §§ 28B.52.010 et seg. and §§ 41.76.001 ef seq.

3

spread the financial burden of this required equal representa-

tion among union members and nonmembers, Washington—

like approximately half of the states—allows public-sector

unions to negotiate collective bargaining agreements that

require payment of an “agency fee” to the union by the

employee-nonmembers the union is required to represent.

Wash. Rev. Code § 41.59.100; see also id., §§ 28B.52.045,

41.56.120, 41.76.040. Washington statutes allow the collec-

tion of an agency fee in an amount “equal to the fees and dues

required of membership in the [union].” Wash. Rev. Code

§ 41.59.060(2); see also id., § 41.59.100.? Under the statutes

covering the vast majority of the employees WEA represents,

the employer implements the agency fee provision by deduct-

ing the agency fee from the employee-nonmember’s salary

payments and remitting it to the union. Wash. Rev. Code

§§ 41.59.100, 41.76.045(2), 28B.52.045(2).

This Court has long recognized the important public pur-

poses served by an agency fee system and the permissibility

of that system under the First Amendment. See Abood vy.

Detroit Bd. of Educ., 431 U.S. 209, 220-22 (1977). At the

same time, in deference to the employee-nonmembers’ First

Amendment nonassociational rights, the Court has ruled that

employee-nonmembers who have an objection to paying for a

union’s political and ideological activities can only be re-

quired to pay a reduced agency fee that is equal to the portion

of union dues that is expended for purposes germane to

collective bargaining and thus is constitutionally “chargeable”

to objecting nonmembers. See Lehnert v. Ferris Faculty

Ass'n, 500 U.S. 507 (1991). In addition, the Court has held

that unions that have negotiated an agency fee provision must

give employee-nonmembers notice of the amount and nature

? While lacking this explicit language of the Educational Employment

Relations Act, the other relevant labor relations statutes similarly impose

no limit on the agency fee a union may collect. See Wash. Rev. Code

§§ 28B.52.045(2), 41.56.122(1), 41.76.045(2).

4

of the union’s “chargeable” and “nonchargeable” expendi-

tures and the opportunity to register their objection to paying

the portion of union dues that corresponds to the union’s

expenditures that are not germane to its collective bargaining

functions. See generally Chicago Teachers Union v. Hudson,

475 U.S. 292 (1986).

Consistent with these constitutional requirements, WEA

annually provides each employee-nonmember subject to an

agency fee requirement with a “Hudson notice” explaining

the union’s breakdown of its chargeable and nonchargeable

expenditures for the relevant fiscal year and offering, to any

nonmember who informs the union of his or her objection,

a reduction in the fee corresponding to the nonchargeable

expenditures.”

Payroll deductions received by WEA from employers, con-

sisting of the union dues of members and the agency fees of

nonmembers, are deposited in WEA’s general fund. Just over

95% of the WEA general fund’s receipts come from union

members’ dues, and just under 5% from nonmembers’ agency

fees. WEA makes its various disbursements, including the

political expenditures that are at issue in this litigation, from

its general fund.

B. In 1992 Washington voters adopted through Initiative

134 a Fair Campaign Practices Act, codified in Title 42,

Chapter 17 of the Washington Revised Code. Section 760 of

the Act, at issue in this litigation, provides as follows:

A labor organization may not use agency shop fees paid

by an individual who is not a member of the organiza-

tion to make contributions or expenditures to influence

an election or to operate a political committee, unless

affirmatively authorized by the individual.

> In addition, feepayers who so request are entitled to a review by an

independent arbitrator of the union’s calculation of the chargeable per-

centage of its expenditures.

5

Wash. Rev. Code § 42.17.760 [hereinafter “Section 760”).

Section 760’s restriction on political contributions and expen-

ditures extends not only to contributions to political candi-

daves and to expenditures relating to elections for public

office, but also to contributions and expenditures relating to

ballot initiatives and referenda. See id, § 42.17.020(17)

(defining “election” to include any “election for public office

and any election in which a ballot proposition is submitted to

the voters”); id., § 42.17.020(38) (defining “political com-

mittee” as an entity making expenditures “in support of, or

opposition to, any candidate or any ballot proposition”).

C. Prior to 2000 and the institution of this litigation, the

Public Disclosure Commission (“PDC”)—the administrative

agency charged with administration and enforcement of

the Fair Campaign Practices Act, see Wash. Rev. Code

§§ 42.17.350 et seg.—had never sought to enforce Section

760, nor had that section been the subject of any judicial

interpretation, agency rulemaking, or other guidance from

the PDC. See Pet. App. 9a.* Then, in October 2000, the

Washington Attorney General, upon referral from the PDC,

brought this case against WEA in Thurston County Superior

Court. The complaint alleged violations of Section 760

between 1996 and 2000 based on WEA’s political expendi-

tures and on its contributions to political committees support-

ing Or opposing various ballot propositions—such as ballot

questions on education-related public policy issues concern-

ing charter schools, private school vouchers, and class size

reduction in the public schools.°

* Except as otherwise noted, appendix citations are to the Appendix

submitted by petitioner in No. 05-1657.

* WEA’s political contributions at issue do not include any contribu-

tions to candidates for public office. Such candidate contributions were

not made from WEA’s general treasury but instead by its political action

committee WEA-PAC, which was funded by separate earmarked contri-

6

In its initial ruling, the trial court held (i) that Section 760

was constitutional; and (ii) that an agency fee payer’s failure,

in response to WEA’s “Hudson notice,” to file an objection

and request a reduction in his or her agency fee corresponding

to WEA’s nonchargeable expenditures—a broader category

than the political disbursements identified by Section 760—

did not constitute “affirmative authorization” within the mean-

ing of the statute. Pet. App. 1 15a.

An ensuing bench trial focused on the question of whether,

by making political expenditures and contributions from its

general fund, WEA had “used” agency fees for those pur-

poses. Two of the three accountants to testify at trial,

including an independent expert jointly retained by the

parties, opined that, under the circumstances ai issue in this

case, the mere commingling of agency fees in WEA’s general

fund was an insufficient basis for concluding that WEA had

“used” such fees for the political purposes identified by

Section 760. See id at 53a-54a. Notwithstanding that

testimony, the trial court concluded that “when agency fees

were commingled wiih other funds in the gencral treasury,

expenditure of any gencral treasury monies to influence an

election or support a political committee results in use of a

proportionate share of agency fees for such purposes.” /d. at

99a.

Having found a violation of the statute, the court imposed

as a “punitive sanction” a civil penalty of $400,000 plus costs

and attorney’s fees. /d. at 11la-112a. The court also entered

a permanent injunction requiring WEA in future years to

reduce the fee to be paid by (nonobjeciing) agency feepayers

by “the percentage of the WEA’s total expenditures that are

analyzed to have been used for § 760 expenses in the second

fiscal year prior” plus a “cushion” of 3 percent. /d. at 88a-

butions of WEA members. WEA-PAC contributions and expenditures are

not at issue in this litigation.

7

89a. The injunction defined Section 760 expenses to include

“all political advertising expenditures, as well as direct and

in-kind contributions, internal political communications, and

independent expenditures.” /d. at 85a.

In the meantime, five agency feepayers, petitioners in No.

05-1589, brought a class action lawsuit against WEA in the

same court, asserting an implied private right of action under

Section 760 as well as various tort theories—all predicated on

the alleged violation of Section 760—and seeking to recover

portions of the agency fees they had paid. The trial judge

dismissed one of the tort claims, allowed the others to go

forward, certified a class as to certain claims, and stayed

further proceedings while certifying his ruling for interlocu-

tory appeal. Davenport Pet. App. 45a.

The two cases were heard together on appeal. WEA raised

multiple issues, including the constitutionality of Section 760,

whether WEA’s Hudson process constituted the “affirmative

authorization” required by the statute, whether under the

circumstances agency fees had been “used” for political pur-

poses, whether any violation of the statute had been inten-

tional, and—as to the Davenport case—whether plaintiffs had

stated a cause of action under Section 760 and their various

tort theories. The court of appeals reached only the first of

these issues, relying on this Court’s agency fee jurisprudence

to hold Section 760 unconsiitutional. Pet. App. 48a; see also

Davenport Pet. App. 42a.°

* Judge Hunt disagreed with the majority’s view that the statute was

unconstitutional, see Pet. App. 70a-77a, but —finding that WEA had had a

good faith basis for its belief that it had complied with the statute—she

concurred with the majority in holding that al! penalties against WEA

should be vacated. /d at 78a. In the Davenport case, Judge Hunt con-

curred in the result, holding that the trial court's ruling should be reversed

on the basis of an intervening appeilat_ decision holding “that ‘42.17

RCW does not imply a private cause of action."” Davenport Pet. App.

The Washington Supreme Court granted discretionary re-

view and affirmed the judgment of the court of appeals. Pet.

App. la. The court addressed two issues. It first held that,

while the statutory requirement of “affirmative authorization”

did not mean written authorization, and while “the State was

unable to specify what form of authorization would satisfy

the requirement of affirmative authorization,” id at lla, a

feepayer’s “[flailure to respond to the Hudson packet ...

would not fulfill the affirmative authorization requirement.”

Id. at 10a.

The Washington Supreme Court therefore turned to the

question whether the statute, so construed, was constitutional.

Answering that question in the negative, the court below held

that Section 760 burdened the right of WEA and its members

to engage in political speech and did so without narrow

tailoring to a compelling governmental interest. /d at 26a-

27a, 32a-34a.

ARGUMENT

The certiorari petitions do not present any legal question of

general importance warranting this Court’s review. The

Washington Supreme Court applied well settled constitutional

principles to invalidate a sui generis Washington state statute

that cuts deeply into the right of unions like WEA to engage

in political speech through such means as political advertising

and internal political communications, and that has no ana-

logue in federal, or any other state, campaign practices law.

The Washington court’s decision is, moreover, carefully lim-

ited to the unique aspects of that Washington state statute.

Precisely because that is so, and contrary to the certiorari

petitions’ claims, the Washington Supreme Court’s decision

is plainly not in conflict with any of the decisions of other

=e —

43a-44a (citing Crisman v. Pierce County Fire Prot. Dist. No. 21, 60 P.3d

652 (Wash. Ct. App. 2002)).

t

~

9

courts cited by petitioners. The certiorari petitions should

therefore be denied.

The State of Washington, in commor with many other

states, permits unions and corporations to finance a wide

range of political advocacy out of the union’s or corporation’s

treasury money in its general fund.’ But through Section 760

the State of Washington a/one limits that permission by mak-

ing it unlawful for a union to finance what would otherwise

be lawful political advocacy out of a general fund made up

primarily of its members’ dues and secondarily of agency fee

moneys—unless the union has secured the affirmative con-

sent of each individual payer of an agency fee to the financ-

ing of the union’s poliical advocacy through the union’s

treasury.

A. As the Washington Supreme Court recognized, and as

is apparent on the face of things, Section 760 cuts deeply—

and discriminatorily—into the First Amendment associational

right of unions like WEA to engage in political advocacy that

is financed almost entirely by members’ dues moneys and

only to a very small extent by agency fee moneys. In

practical terms, Section 760 would silence the political advo-

cacy of the unions like WEA that finance their advocacy out

of general funds that consist overwhelmingly of members’

dues money, by creating the “insurmountable ... hurdle[},”

Pet. App. 19a, of securing the affirmative consent to engage

in such advocacy of each and every one of the individuals

who pays an agency fee into the union’s general fund.

Moreover, the Washington Supreme Court was surely on

solid doctrinal ground in recognizing that this unique draco-

nian restriction on the First Amendment rights of WEA to use

’ See State ex rel. Evergreen Freedom Found. v. Washington Educ.

Ass'n, 999 P.2d 602, 611 (Wash. 2000).

10

its general treasury funds for independent political expendi-

tures and for contributions supporting or opposing bailot

initiatives could pass constitutional muster only if it was

justified by a compelling governmental interest and was nar-

rowly tailored to protecting that interest. See, e.g., Randall v.

Sorrell, 126 S. Ct. 2479, 2487-89 (2006); First National Bank

v. Bellotti, 435 U.S. 765 (1978). And, it is difficult—we

would say all but impossible—to fault the Washington court’s

highly particularized conclusion that Section 760 fails that

constitutional test.

The court below rejected as “disingenuous” the State’s

contention “that § 760 has no impact on the First Amendment

rights of [union] members” and their “ability to assert their

collective political voice.” Pet. App. 19a. Citing FEC v.

Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986),

the Washington court observed that “[c]ampaign finance leg-

_ islation can create insurmountable organizational and finan-

cial hurdles for organizations attempting to engage in political

speech, rendering the legislation unconstitutional.” Pet. App.

19a. Here, the court below explained, “the statute acknowl-

edges that the fees are in the union’s possession but places

restrictions upon the use of the union’s funds for political

speech.” /d. at 30a-3la (emphasis in original). Such “a

restriction on the First Amendment rights of WEA must be

justified by a compelling governmental interest.” /d. at 26a

(emphasis in original). And here “the only interest asserted

is additional protection for nonmembers’ First Amendment

rights.” Jd.

That interest, the Washington court held, was fully pro-

tected by the Hudson process that WEA already provided in

compliance with the requirements of the First Amendment,

and was not advanced any further by Section 760’s “affirma-

tive authorization” requirement. As the court explained,

“{tlhe constitutionally acceptable opt-out alternative ... re-

veals that protection of dissenters’ rights can be achieved

1]

through means significantly less restrictive of the union’s

associational freedoms than RCW 42.17.760’s opt-in require-

ment.” /d. at 33a. For this reason the court appropriately

held that Section 760 was not narrowly tailored to advance

the state’s legitimate interests, and therefore was unconstitu-

tional. /d. at 33a-34a.

B. Not only was the Washington Supreme Court correct

in invalidating the Washington state statute at issue here, but

for present purposes it is equally to the point that the

Washington court’s decision raises no question of general

significance.

The federal government and the great majority of the states

regulate union and corporate political contributions and ex-

penditures in various ways and -to various degrees. But

neither the federal government nor any other state has ever

imposed a regulation on union (or corporate) political advo-

cacy comparable in its purpose and effect to Washington’s

Section 760.* Section 760 is indeed unique among state and

* Nowhere in their papers do petitioners identify ary comparable

statute from another state, and our research has disclosed none. The

Davenport petitioners do cite statutes from Maryland and Montana which

they say “prohibit the use of nonmember fees on political activities or

contributions.” Davenport Pet. at 9 n.8 (citing Md. Code Ann., Educ. § 6-

504(d)(3 Kiv(2); Mont. Code Ann. §§ 39-3 1-402(3); 39-32-109(2\(d)).

But the Maryland statute (which applies only to noncertificated educa-

tion employees in Baltimore County)—1like agency fee statutes in several

other states——limits the agency fee a union may collect to the portion of

union dues that corresponds to the union’s constitutionally “chargeable”

expenditures (thus excluding political expenditures). See Md. Code Ann..,

Educ. § 6-504(d3)(ivX1). In contrast to Section 760, therefore, the

Maryland statute does not restrict a union's political expenditures fi-

nanced from dues and fees it has lawfully collected.

The Montana statutes make it an unfair labor practice for a union to

“use agency shop fees for contributions to political candidates or par-

ties.” Mont. Code Ann. § 39-31-402(3) (emphasis added). {n contrast to

Section 760, the Montana statutes do not reach a union’s right to make

12

federal efforts to regulate union political expenditures in this

manner.

And, as we have also noted, the Washington Supreme

Court limited itself to determining the constitutional validity

of the State of Washington’s unique regulation through Sec-

tion 760 of union political advocacy. The Washington court’s

decision invalidating Section 760 has no direct application to

any federal, or to any other state, regulation of union (or

corporate) political advocacy on the books. Nor, given its

focus on the unique nature of Section 760, does the decision

below so much as throw a cross light on the validity of any

such federal or state regulation of union (or corporate) politi-

cal advocacy. It is not, in short, a decision that warrants

review by this Court.

Il.

As we have stressed, the issue posed by Section 760 and

decided by the Washington Supreme Court is whether the

State of Washington impermissibly burdened the First

Amendment right of unions like WEA to engage in political

advocacy financed out of a general fund consisting primarily

of members’ dues moneys and secondarily of agency fee

moneys, by requiring the union to secure the affirmative

consent to engage in such advocacy of every one of the

individuals who pays an agency fee. None of the decisions

cited in the certiorari petitions as being in conflict with the

Washington Supreme Court’s decision treat with an election

campaign practices regulation in any way comparable to the

Washington state regulation at issue. And, not surprisingly,

none of those decisions, in passing on the validity of the

independent political expenditures, to make contributions in support of or

in Opposition to ballot propositions, or to engage in internal communica-

tions with its members. And, as we discuss below, Section 760s great

breadth of application is of critical importance in assessing the statute's

constitutionality.

13

regulations there at issue, does or states anything contrary to

the Washington court’s decision here.

The cases on which the petitioners rely for their assertion

of a conflict fall into several distinct groups, which we

address in turn.

A. Agency Fee Cases. First and foremost, both sets of

petitioners re’y on Lincoln Federal Labor Union 19/29 v.

Northwestern Iron & Metal Co., 335 U.S. 525 (1949).

Washington Pet. at 17-20; Davenport Pet. at 17-20; see also

id. at 18 n.15 (citing similar state cases). As petitioners say,

Lincoln Federal stands for the proposition that a union has no

constitutional right to collect an agency fee in the first place.

That rule of law is as undisputed as it is irrelevant to this case.

The issue here is not the right of unions to collect an agency

fee from nonmembers; that right is established by Washing-

‘ton statutory law and is undisputed. Rather, the issue is the

union’s right to engage in political expression financed out of

the member dues and agency fees the union has lawfully

collected. Nothing in Lincoln Federal so much as speaks to

that question.

B. Dues Checkoff Cases. The second line of cases on

which petitioners rely—those typified by South Carolina

Education Association v. Campbell, 883 F.2d 1251 (4th Cir.

1989), that address the constitutionality of statutes limiting or

prohibiting the use of payroll deduction for the collection of

union dues and agency fees—has even less relevance to the

matter at hand. These cases hold, as petitioner Washington

puts it, “that the First Amendment does not impose any

obligation on government to assist unions in collecting union

dues or agency shop fees by granting payroll deductions so

that the fees and dues can be withheld from employees’ pay

by the employer and paid directly to the union.” Washington

Pet. at 19 n.4 (citing cases); see also Davenport Pet. at 11-13

(citing cases). The dues checkoff cases, in short, address the

constitutionality of limits placed on unions’ ability to demand

14

assistance from public. employers in collecting their dues

and fees. These cases have nothing to say, directly or by

implication, on the constitutionality of limits placed on how a

union expends its own funds, which it has lawfully collected.

Petitioners rely particularly in this regard on Michigan

State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir. 1997), in

which a divided panel of the Sixth Circuit upheld a state’s

requirement of annual affirmative authorization of payroll

deductions for state employee/union members’ contributions

to their union’s political committee. Washington Pet. at 25-

27; Davenport Pet. at 20-25. Miller—like the other payroll

deduction cases discussed above—thus upheld a limitation on

a union’s ability to use the stafe’s payroll services to assist it

in collecting moneys from its members. That is an altogether

different matter than the restriction at issue here on the

union’s political expression financed by moneys that are

already, lawfully, in its treasury. As the Washington Su-

preme Court observed, in responding to the dissent’s reliance

on Miller, Washington law does indeed have a provision like

the Michigan statute that the Sixth Circuit upheld, but it is not

Section 760:

[T]he statute at issue in Miller is not similar to § 760.

Washington’s counterpart to the Michigan statute at

issue in Miller is RCW 42.17.680(3).... Like the

. Michigan statute at issue in Miller, RCW 42.17.680(3)

restricts the ability of various groups, including corpora-

tions and labor groups, from making direct deductions

from an employee’s wages. Miller did not inyolve a

statute like § 760, and Miller is inapplicable to this case.

Pet. App. 25a.”

* Prior to 2002, Wash. Rev. Code § 42.17.680(3) require+ that employ-

ees give annual authorization for payroll deductions made .. political

committees or otherwise designated for political contributions. As amended

in that year, Section 680(3) now provides as follows:

15

C. Collective Bargaining Cases. Petitioners also invoke

the cases holding that a state is not constitutionally required

to recognize or to engage in collective bargaining with a

union as the representative of its employees. Washington Pet.

at 19 (citing Smith v. Arkansas State Highway Employees

Local 1315, 441 U.S. 463 (1979)); Davenport Pet. at 13-17.

But those cases address the extent to which the Constitution

requires government to take some affirmative action to coop-

erate with a union’s representational efforts and activities, an

issue that is far afield from the issue here—the extent to

which government may restrict a union’s right to engage in

_political expression. And in deciding the former issue, the

Smith line of cases says nothing that bears on the issue here.

D. United States v. Boyle. The Washington petition also

asserts the existence of.a conflict between the decision below

and the D.C. Circuit’s 1973 opinion in United States v. Boyle,

482 F.2d 755 (D.C. Cir. 1973). See Washington Pet. at 23-25.

There is no such conflict. Boyle was a prosecution of a union

officer for making contributions to political candidates from

union treasury funds in violation of a federal statute, 18

U.S.C. § 610 (1970), that prohibited the making of such

contributions out of union or corporate funds. The Boyle

No employer or other person or entity responsible for the disburse-

ment of funds in payment of wages or salaries may withhold or

divert a portion of an employee's wages or salaries for contributions

to political committees or for use as political contributions except

upon the written request of the employee. The request must be

made on a form prescribed by the [PDC].... The employee may

revoke the request at any time. At least annually, the employee

shall be notified about the right to revoke the request.

In State ex rel. Evergreen Freedom Foundation v. Washington Education

Association, 999 P.2d 602, 612-16 (Wash. 2000), the Washington Su-

preme Court construed Section 680(3) as applying only to payroll deduc-

tions made to or designated for a political committee or candidate, holding

that it did not restrict a union's use for political purposes of funds from its

general treasury.

16

court rejected the defendant’s challenge to the constitutional-

ity of the statute’s prohibition on such contributions.

Petitioner would have it that Boyle stands for the proposi-

tion that any and all federal and state limitations on political

contributions or expenditures financed by union or corporate

treasury money are constitutional. That is a plain misreading

of Boyle. Since its seminal decision three years after Boyle in

Buckley v. Valeo, 424 U.S. 1 (1976), this Court has consis-

tently drawn a distinction between the regulation of political

contributions and political expenditures, applying strict scru-

tiny to the latter but not the former. And the Court has also

applied a different standard to statutes restricting contribu-

tions in support of or in opposition to ballot propositions than

to statutes limiting contributions to political candidates. First

National Bank vy. Bellotti, 435 U.S. 765 (1978). Thus,

nothing in Boyle, a case involving contributions to political

candidates, cuts against the Washington Supreme Court’s

“strict scrutiny” conclusion that Section 760—which reaches

union contributions with respect to ballot propositions, as

well as union political expenditures (including even expendi-

tures for a union’s internal political communications with its

members), but does not reach corporate political expenditures

and is not narrowly tailored to any compelling state interest—

is constitutionally invalid.

E. Federal Election Law Cases. Finally, both sets of

petitioners assert that the decision below is inconsistent with

this Court’s jurisprudence under the Federal Election Cam-

paign Act (“FECA”), 2 U.S.C. § 441b. See Washington Pet.

at 20-23; Davenport Pet. at 25-30.

Insofar as the assertion is that the Court’s FECA decisions

provide support for the conclusion that Section 760 is con-

stitutional, it is unavailing. FECA does strictly regulate

contributions to political candidates and certain political ex-

penditures financed by union (or corporate) treasury money.

But in light of the constitutional interests involved, FECA

17

does not go so far as to reach contributions and expenditures

with respect to ballot initiatives and referenda, and it ex-

pressly permits “communications by . . . a labor organization

to its members and their families on any subject” (as well as

similar corporate communications) and the “establishment”

and “administration” of union (and corporate) political com-

mittees, notwithstanding that such expenditures are financed

by treasury money. 2 U.S.C. § 441 b(b)(2)(A), (C). In con-

trast, Section 760 bans all union (but not corporate) political

contributions and expenditures financed by union treasury

money—including contributions and expenditures in support

of or in opposition to ballot propositions, as well as expendi-

tures for internal political communications with the union’s

members and for administration of the union’s political

committee—unless each individual who pays agency fees

into the union treasury affirmatively consents to the union’s

making of such contributions or expenditures.

Given the federal statutory context,’in passing on the

constitutionality of FECA’s regulation of union and corporate

political advocacy financed by treasury money, this Court has

never had occasion to opine on the validity of a statutory

limitation that reaches as far as does Section 760, that does so

on a one-sided basis affecting only unions, and that is not

narrowly tailored to any compelling governmental interest.

And, not surprisingly, nothing the Court has said or done in

its FECA decisions so much as suggests that a provision like

Section 760 would pass constitutional muster.

To the contrary, it has been a constant in this Court’s

FECA cases, beginning with Buckley v. Valeo, 424 U.S. |

(1976), that all restrictions on political expenditures require

strict scrutiny and must be “narrowly tailored to serve a com-

pelling governmental interest.” FEC v. Beaumont, 539 U.S.

146, 162 (2003); see also, e.g., FEC v. Massachusetts Citi-

zens for Life, Inc., 479 U.S. 238, 251-52 (1986). The Wash-

ington petitioners’ heavy reliance on FEC v. National Right

18

to Work Committee, 459 U.S. 197 (1982), see Washington

Pet. at 20-23, is inapt for this reason. That case involved only

a limitation on contributions to political candidates—which

are not subject to strict scrutiny analysis but only to the

requirement that the regulation be “‘closely drawn’ to match

a ‘sufficiently important interest.”” Beaumont, 539 U.S. at

162 (quoting Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377,

387-88 (2000)). This Court has repeatedly noted this point in

distinguishing National Right to Work from cases involving

political expenditures. Massachusetts Citizens for Life, 479

U.S. at 259; Beaumont, 539 U.S. at 162."°

Indeed, even to the extent Section 760 applies to political

contributions, it goes far beyond FECA and is subject to strict

scrutiny. Unlike FECA, see 2 U.S.C. § 441b(a), Section 760

is not limited to political contributions to candidates for

public office, but extends to contributions (as well as expen-

ditures) made in support of or in opposition to ballot

initiatives and referenda—which is the only kind of political

contribution that is at issue here. See supra note 5. Such

restrictions on political expression are subject to strict

scrutiny, and are not supported by the justifications that allow

restrictions——like those imposed by FECA—on contributions

to political candidates. First National Bank v. Bellotti, 435

USS. 765 (1978).

The heart of the matter here—and the essence of what

distinguishes this case from those on which petitioners rely—

is that, as the Washington Supreme Court’s decision demon-

strates, see supra Part I.A, Section 760’s unique restrictions

on union political expenditures cannot withstand the strict

scrutiny that the Constitution requires.

© The issue actually decided in National Right to Work was, moreover,

an exceedingly narrow one, involving the scope and constitutionality of

FECA's limitation, to “members” of the corporation, of a corporation's

right to solicit contributions to a separate segregated fund. That quesiion

has no application to the jnstant case.

19

Petitioners’ assertion of a conflict between the decision

below and this Court’s FECA cases thus is misplaced. The

Washington Supreme Court’s judgment striking down Sec-

tion 760 in no way threatens any provision of FECA, and is

not in conflict with any decision construing that statute.

CONCLUSION

The Petitions for Writ of Certiorari should be denied.

Respectfully submitted,

JUDITH A. LONNQUIST JOHN M. WEST

1218 Third Avenue, Suite 1500 (Counsel of Record)

Seattle, WA 98101 LAURENCE GOLD

(206) 447-9186 BREDHOFF & KAISER, P.L.L.C.

HARRIET STRASBERG “6 re ge Street, N.W.

vise Meerage SS Washington, DC 20005

Olympia, WA 98501 202) 842-2600

(360) 754-0304 (S08) Ore

Counsel for Respondents

August 2006

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