Supreme Court to Consider Wash. Union Case

Published November 1, 2006

On September 26, the United States Supreme Court announced it would accept an appeal of a Washington State Supreme Court decision that could greatly affect all labor unions in the Evergreen State.

“We were delighted that the Supreme Court agreed to hear the case, but we are not guaranteed a victory,” said Michael Reitz, director of labor policy at the Evergreen Freedom Foundation (EFF), a Washington state-based public policy research organization. “We only celebrated briefly as we immediately got ready for the next round.”

On March 16, 2006, Washington’s highest court declared unconstitutional a state law prohibiting labor unions from using non-members’ “agency fees” for political purposes without direct authorization by the individuals involved. Attorney General Rob McKenna (R) appealed the case to the U.S. Supreme Court.

Non-Member Union Fees

The case, known as Washington v. Washington Education Association, involves the Washington Education Association’s (WEA) manner of collecting and using fees collected from non-members. The EFF played a crucial role in jump-starting the case, filing complaints with the state attorney general’s office and Public Disclosure Commission asserting the WEA was violating state law.

Washington is one of 28 states that require non-members of unions to pay agency fees to labor unions to cover the costs of general activities such as collective bargaining.

“I’m a bit surprised that [the U.S. Supreme Court] agreed to hear it because it affects only Washington State residents,” said WEA general counsel James Painter. “The WEA spends very little on political fees, and all of that is paid for with members’ dues.”

Affirmative Authorization

The requirement of “affirmative authorization” in Washington came from I-134, an initiative known as the Fair Campaign Practices Act, which was passed by Washington state voters in 1992 with 72 percent of the vote.

According to the provision, “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.”

The Washington Supreme Court, which heard oral arguments on May 27, 2004, ruled 6-3 that the “affirmative authorization” provision placed too great an administrative burden on the WEA, thereby interfering with the group’s rights to free association and free speech.

Justice Faith Ireland wrote the majority opinion, asserting that while individuals have the right not to be forced to pay for political speech they oppose, the association must not be harmed in its political activities, either.

Expressive Rights

In a relevant 1986 decision, Chicago Teacher’s Union Local v. Hudson, the United States Supreme Court ruled that individuals’ free speech rights could be balanced against the expressive rights of an association by allowing a non-member paying agency fees to request a refund of the portion used for political purposes. That was known as an “opt-out” provision.

The Washington Supreme Court’s majority ruled that the state requiring an “opt-in” provision presumed that non-members do not support the unions’ political activities.

Justice Richard Sanders, who wrote a dissenting opinion, rejected the argument that the opt-in provision harms the members of the association, because unions have “no constitutional right to compel membership, much less political support from non-members in the first place.”

Sanders also rejected the claim that creating an “opt-in” provision places an administrative burden on the WEA.

Political Causes

In 2000, several people paying agency fees to the WEA approached the EFF, which then filed a complaint with the state’s Public Disclosure Commission in 2000. According to the EFF, then-Attorney General Christine Gregoire (D)–currently the state’s governor–filed a suit against the WEA for violating the Fair Campaign Practices Act.

In 2001, Thurston County Superior Court Judge Gary Tabor found the WEA guilty and imposed a fine of $590,375 against the organization. Also in 2001, a group of teachers filed a class-action suit against the WEA, charging improper collection of agency fees.

Cases filed by two individuals were consolidated into one. On June 24, 2003, the state Court of Appeals, Division II, ruled 2-1 that the law requiring affirmative authorization was unconstitutional. The combined cases were then appealed to the Washington Supreme Court.

Widespread Attention

The case has attracted the attention of many organizations on the national level.

The National Right to Work Legal Defense Foundation (NRTW), for example, has served as legal counsel for the teachers in the class-action suit. In a September 26 news release, the NRTW stated, “the ruling brought into focus how difficult the paycheck protection regulatory approach is, and how ineffective it has been in protecting employees laboring under forced unionism.”

The EFF filed an amicus brief urging the U.S. Supreme Court to hear the case. It was joined in that effort by 11 other public policy organizations, including the American Legislative Exchange Council, a national organization of state elected officials; the Independence Institute, a free-market think tank in Oakland, California; and nine state-based organizations dedicated to promoting political freedom.

Michael Coulter ([email protected]) teaches political science at Grove City College in Pennsylvania.

For more information …

State Ex Rel Public Disclosure Comm., Respondent, v. Washington Education Assoc., Appellant (majority opinion), March 16, 2006,

State Ex Rel Public Disclosure Comm., Respondent, v. Washington Education Assoc., Appellant (minority opinion), March 16, 2006,

Chicago Teacher’s Union Local 1 v. Hudson,

Evergreen Freedom Foundation,