Nos. 05-1657 & 05-1589

In the Supreme Court of the United States

STATE OF WASHINGTON, PETITIONER

v.

WASHINGTON EDUCATION ASSOCIATION

GARY DAVENPORT, ET AL., PETITIONERS

v.

WASHINGTON EDUCATION ASSOCIATION

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF WASHINGTON

BRIEF FOR THE UNITED STATES 

AS AMICUS CURIAE SUPPORTING PETITIONERS

LAWRENCE H. NORTON

General Counsel

RICHARD B. BADER

Associate General Counsel

DAVID KOLKER

Assistant General Counsel

STEVE N. HAJJAR

Attorney

Federal Election Commission

Washington, D.C. 20463

HOWARD M. RADZELY

Solicitor

KATHERINE E. BISSELL

Associate Solicitor

NORA CARROLL

Senior Attorney

Department of Labor

Washington, D.C. 20210

PAUL D. CLEMENT

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

GREGORY G. GARRE

Deputy Solicitor General

DARYL JOSEFFER

Assistant to the Solicitor

General 

DOUGLAS N. LETTER

AUGUST E. FLENTJE

Attorneys 

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217
(I)

QUESTION PRESENTED

Under Washington law, 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.” Wash. Rev. Code Ann. § 42.17.760 (West

2006). The question presented is whether such an

affirmative-authorization or opt-in requirement violates

the First Amendment rights of labor organizations.
(III)

TABLE OF CONTENTS

Page

Interest of the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Summary of argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

I. Washington’s affirmative-authorization requirement

promotes the legitimate First Amendment interests

of nonmembers and the integrity of the election 

process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

II. The affirmative-authorization requirement does not

abridge freedom of speech or association, but instead

promotes it . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. The Washington law does not infringe union

members’ freedom of speech or association . . . . . . 14

B. The administrative cost of obtaining nonmembers’ authorization is not an unconstitutional burden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

C. The constitutional floor for protecting nonmembers’ First Amendment rights is not also a

constitutional ceiling on such protections . . . . . . . . 20

III. This Court’s campaign-finance decisions underscore

the constitutionality of the affirmative-authorization

requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

TABLE OF AUTHORITIES

Cases:

Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) 10, 11, 21

Austin v. Michigan State Chamber of Commerce, 494

U.S. 652 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
IV

Cases—Continued: Page

Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) . . . 5, 18, 19

Buckley v. Valeo, 424 U.S. 1 (1976) . . . . . . . . . . . . . . . . . . . 22

Chicago Teachers Union, Local No. 1 v. Hudson, 475

U.S. 292 (1986) . . . . . . . . . . . . . . . . . . . 2, 10, 11, 17, 20, 21

Ellis v. Brotherhood of Ry. Clerks, 466 U.S. 435

(1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12, 17

FEC v. Beaumont, 539 U.S. 146 (2003) . . . . . . . . . . . . 26, 28

FEC v. National Right to Work Comm., 459 U.S. 197

(1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 26, 29

First Nat’l Bank v. Bellotti, 435 U.S. 765 (1978) . . . . . . . 30

Healy v. James, 408 U.S. 169 (1972) . . . . . . . . . . . . . . . . . . 17

International Ass’n of Machinists v. Street, 367 U.S.

740 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 21, 22

Keller v. State Bar, 496 U.S. 1 (1990) . . . . . . . . . . . . . . . . 21

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

(1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Lincoln Fed. Labor Union v. Northwestern Iron &

Metal Co., 335 U.S. 525 (1949) . . . . . . . . . . . . . . . . . . . . 10

Lyng v. International Union, 485 U.S. 360 (1988) . . . . . 18

McConnell v. FEC, 540 U.S. 93 (2003) . . . . . . . . . . 27, 28, 29

Michigan State AFL-CIO v. Miller, 103 F.3d 1240

(6th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449

(1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

NLRB v. General Motors Corp., 373 U.S. 734 (1963) . . . 11

Pipefitters Local Union No. 562 v. United States, 407

U.S. 385 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Railway Employees’ Dep’t v. Hanson, 351 U.S. 225

(1956) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 10
V

Cases—Continued: Page

Regan v. Taxation with Representation, 461 U.S. 540

(1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Roberts v. United States Jaycees, 468 U.S. 609 (1984) . . 16

Rumsfeld v. Forum for Academic & Institutional

Rights, Inc., 126 S. Ct. 1297 (2006) . . . . . . . . . . . . . 15, 19

United States v. O’Brien, 391 U.S. 367 (1968) . . . . . . . . . . 14

Constitution, statutes and regulations:

U.S. Const. Amend. I . . . . . . . . . . . . . . . . . . . . . . . . . passim

Federal Election Campaign Act of 1971, 2 U.S.C. 431

et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

2 U.S.C. 441b (2000 & Supp. IV 2004) . . . . . . 1, 25, 26

2 U.S.C. 441b(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

2 U.S.C. 441b(b)(2) (Supp. IV 2004) . . . . . . . . . . . . . 23

2 U.S.C. 441b(b)(3)(A) . . . . . . . . . . . . . . . . . . . . . . . . 24

2 U.S.C. 441b(b)(3)(B) . . . . . . . . . . . . . . . . . . . . . . . . 24

2 U.S.C. 441b(b)(3)(C) . . . . . . . . . . . . . . . . . . . . . . . . 24

2 U.S.C. 441b(b)(4)(A)(ii) . . . . . . . . . . . . . . . . . . . . . . 24

2 U.S.C. 441b(b)(4)(B) . . . . . . . . . . . . . . . . . . . . . . . . 24

National Labor Relations Act, 29 U.S.C. 151

et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

29 U.S.C. 158(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

29 U.S.C. 164(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

5 U.S.C. 7102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

29 U.S.C. 551 ......................................2

Wash. Rev. Code Ann. (West 2006):

§ 41.56.122(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 12, 14

§ 41.59.100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 12, 14
VI

Statutes and regulations: Page

§ 42.17.030 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

§ 42.17.760 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 12

11 C.F.R. Pt. 114:

Section 114.5(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Section 114.5(k)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Section 114.6(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Section 114.6(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Section 114.6(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Section 114.6(e)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Miscellaneous:

FEC Advisory Opinion 2001-04, 1 Fed. Election

Camp. Fin. Guide (CCH) ¶ 6360 . . . . . . . . . . . . . . . . . . 25

Employment Standards Admin., U.S. Dep’t of Labor,

State Right-to-work Laws (last modified Dec.

2005)<http://www.dol.gov/esa/

programs/whd/state/righttowork.htm> . . . . . . . . . . . . 11

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(1)

In the Supreme Court of the United States

No. 05-1657

STATE OF WASHINGTON, PETITIONER

v.

WASHINGTON EDUCATION ASSOCIATION

No. 05-1589

GARY DAVENPORT, ET AL., PETITIONERS

v.

WASHINGTON EDUCATION ASSOCIATION

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF WASHINGTON

BRIEF FOR THE UNITED STATES 

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case presents a First Amendment challenge to

a state law that requires labor unions to obtain the permission of nonmembers before using compelled agency

shop fees to make contributions or expenditures to influence elections. The United States has a substantial interest in the validity of such a provision. The Federal

Election Commission is charged with enforcing federal

election laws, including laws that generally prohibit unions from using nonmembers’ agency shop fees for political activities. 2 U.S.C. 441b (2000 & Supp. IV 2004). In

addition, the Secretary of Labor is responsible for help-
2

ing “to foster, promote, and develop the welfare of the

wage earners of the United States.” 29 U.S.C. 551.

STATEMENT

1. States have the flexibility to permit or prohibit

“union shop” and “agency shop” arrangements in the

workplace. See Railway Employees’ Dep’t v. Hanson,

351 U.S. 225, 233, 238 (1956). Under a “union shop” arrangement, a union and employer enter into a collective

bargaining agreement that requires all employees who

benefit from collective bargaining to join the union. By

contrast, under an “agency shop” agreement, employees

do not have to join the union, but must nonetheless pay

an “agency shop” fee to the union for representational

activities. Even when a union-shop or agency-shop arrangement is permitted, workers have a right to a refund of the portion of their fees or dues that would otherwise subsidize a union’s political activities. Chicago

Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292,

301-302, 310 (1986).

Washington State generally forbids public-sector

employers and unions from entering into union-shop

arrangements, but it has chosen to permit agency-shop

agreements under which employees who do not join the

union must pay the union a fee equal to the dues paid by

members. E.g., Wash. Rev. Code Ann. §§ 41.56.122(1),

41.59.100 (West 2006). Under Washington law, if a public education employer enters into such an agency-shop

agreement, it must deduct union dues and agency shop

fees from its employees’ paychecks. Id. § 41.59.100.

The Washington statute at issue in this case further

provides, however, that “[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
3

expenditures to influence an election or to operate a political committee, unless affirmatively authorized by the

individual.” Wash. Rev. Code Ann. § 42.17.760 (West

2006). Washington voters approved that opt-in requirement in 1992 as part of an omnibus campaign-finance

ballot initiative. 05-1657 Pet. App. 8a.

2. Respondent Washington Education Association

(WEA) is the bargaining representative for approximately 70,000 Washington teachers and other educational employees. 05-1657 Pet. App. 3a. Under its collective bargaining agreement, the WEA collects agency

shop fees from nonmembers, i.e., employees who chose

not to join the union. Id. at 3a. Nonmembers comprise

approximately 5% of the bargaining unit. Id. at 4a. The

union uses a portion of each worker’s fees for political

purposes unless the worker affirmatively objects to that

use—or opts out of the union’s political funding

scheme—in which case the employee may obtain a rebate of the relevant portion of the fees. See id. at 3a-5a.

3. Petitioner State of Washington filed suit against

WEA in state court, alleging that for five years the union had used nonmembers’ agency shop fees for political

purposes without their affirmative authorization, in violation of Section 42.17.760. 05-1657 Pet. App. 5a. After

finding that WEA had done so, the trial court fined

WEA $400,000, required the union to pay the State’s

costs and fees, and entered permanent injunctive relief.

Id. at 81a-83a, 84a-91a. The Washington Court of Appeals reversed. Id. at 48a-78a. It concluded that the

affirmative-authorization requirement “unduly burdens

unions” by “requir[ing] a union to protect nonmembers

who disagree with a union’s political expenditures but

are unwilling to voice their objections.” Id. at 68a, 69a.
4

In the meantime, the Davenport petitioners—public

educators in Washington who are not members of WEA,

but are covered by the agency-shop agreement—filed a

class action seeking recovery of the portion of their

agency shop fees that the union had used for political

purposes. 05-1657 Pet. App. 7a. The trial court declined

to dismiss the complaint, but stayed further proceedings

pending interlocutory appeal. 05-1589 Pet. App. 45a49a. After the court of appeals held the affirmative-authorization requirement unconstitutional in the enforcement action discussed above, it remanded the Davenport

case to the trial court for dismissal. Id. at 42a-44a.

4. The Supreme Court of Washington consolidated

the two cases and affirmed the court of appeals’ ruling

that the State’s affirmative-authorization requirement

is unconstitutional. 05-1657 Pet. App. 1a-47a.

a. The court first interpreted Section 42.17.760 to

require an “expression of positive authorization” before

a union may use a worker’s agency shop fees for political

purposes. 05-1657 Pet. App. 10a. That is, the court observed, the statute requires “that the member must say

‘yes,’ instead of failing to say ‘no.’” Ibid. The court also

agreed with the State that such authorization need not

be in writing. Id. at 11a.

The court then concluded that, because “[r]egulation

of First Amendment rights is always subject to exacting

judicial scrutiny,” the Washington law was subject to

strict scrutiny. 05-1657 Pet. App. 18a. Applying that

analysis, the court held that the Washington law creates

a “presumption of dissent” that “violates the First

Amendment rights of both members and nonmembers.”

Id. at 19a. The court explained that the affirmative-authorization requirement unconstitutionally “transfers

the burden of asserting First Amendment rights from
5

the dissenting nonmembers and places it on the supporting nonmembers and the union.” Id. at 22a. In the

court’s view, “[d]issenters may not silence the majority

by the creation of too heavy an administrative burden,”

and here “the State’s position would require individual

contact with each nonmember who did not respond to”

a mailing. Id. at 20a. The court went on to hold that the

Washington law violated “the First Amendment rights

of nonmembers as well,” because nonmembers may

agree with the union’s political activities. Ibid.

The court reasoned that its conclusion was required

by Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

05-1657 Pet. App. 27a-34a. It construed Dale to hold

that if a law applies to an organization that engages in

expressive activity, and “significantly burdens the [organization’s] ability to express its viewpoint,” the law must

be narrowly tailored. Id. at 29a-30a; see id. at 27a-28a.

Giving “deference to the union’s view of what would impair its political expression,” id. at 32a, the court concluded that Washington’s opt-in requirement significantly burdens the union’s expression, id. at 31a-32a. It

also held that the requirement is not narrowly tailored

because it gives nonmembers greater protection than

the Constitution requires. Id. at 27a-28a, 32a-33a.

b. Three Justices dissented. 05-1657 Pet. App. 34a47a. In their view, “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 their employment.” Id. at 37a. They explained

that, particularly since States may “eliminate the payroll deduction for collection of agency shop fees altogether,” “there is no constitutional right to have the government deduct union dues (and, by logical extension,
6

agency dues) from paychecks.” Id. at 38a-39a. Indeed,

the dissenters explained, the law at issue simply places

“a procedural condition on the collection of a small portion of such shop fees,” namely, those that would be used

by the union for political activities. Id. at 39a.

The dissenters also reasoned that the majority’s reliance on this Court’s cases was misplaced. As they explained, “[t]he holdings of all the cases cited by the majority amount to a simple proposition: the constitution

requires at least an opt-out scheme to protect dissenters’ rights.” 05-1657 Pet. App. 41a. Those cases do not,

the dissenters continued, “stand for the proposition that

the constitution limits a different legislative approach to

protecting dissenters’ rights, including an opt-in

scheme.” Ibid. The dissent also disavowed the majority’s reliance on Dale, explaining that here, unlike Dale,

“nonunion employees have elected not to associate” with

the union. Id. at 45a. “This does not violate the associational rights of the union or its members,” the dissenters

explained, because the union has “no constitutional right

to compel membership much less monetary support

from nonmembers in the first place.” Ibid.

SUMMARY OF ARGUMENT

The First Amendment does not prevent a State from

establishing an opt-in requirement for use of nonmembers’ agency shop fees for political purposes. The decision below went far astray and interpreted a statute that

furthers First Amendment values as violating the Amendment. That decision has far-reaching consequences

and should be reversed.

I. The opt-in provision at issue in this case requires

only that unions obtain nonmembers’ consent before

using their compelled agency shop fees for political pur-
7

poses. That requirement—the simple proviso that a

“member must say ‘yes,’ instead of failing to say ‘no,’”

05-1657 Pet. App. 10a—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 First

Amendment requires that those workers be given an

opportunity to “opt out”; and those same values are furthered, not threatened, by requiring that they affirmatively “opt in.” In addition, such an affirmative-authorization requirement protects all participants in the political process from the distorting effects that result from

permitting a speaker to amplify its voice with the money

of others who do not actually support its message.

II. 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.

The requirement certainly does not abridge union members’ freedom of association, because union members

remain free to associate and pool their (own) funds, to

determine the content of their shared message and the

means of communicating it, and to organize their internal affairs as they see fit. It simply requires a union to

obtain nonmembers’ affirmative consent before using

their coercively collected fees for political purposes.

Nor do the administrative costs of securing nonmembers’ consent unconstitutionally burden unions’ First

Amendment rights. The costs of requesting affirmative

authorization are relatively modest—a mailing or perhaps a phone call—and are likely less than the costs

faced by every other organization that seeks to use
8

other peoples’ money for speech. While other organizations must solicit and collect donations without the government’s assistance, Washington gives unions a significant advantage by (i) permitting them to impose agency

shop fees on nonmembers and use those fees for political

purposes (with nonmembers’ affirmative authorization),

and (ii) collecting those fees for the unions through payroll deductions. The union has no constitutional entitlement to additional advantages. And, of course, the unions face no possibility of suffering any net harm—if the

costs of obtaining affirmative consent outweigh the

funds generated, the unions can simply not pursue consent. But they lack any a priori entitlement to those

funds and therefore can state no claim to constitutional

injury from burdens on their ability to collect them.

In situations where Congress or a state legislature

has given unions a statutory right to enter into collective

bargaining agreements permitting unions to collect and

use agency shop fees, this Court has held that unions

may constitutionally use the fees for political purposes

unless a dissenter objects to such use. But nothing in

this Court’s precedents suggests that the government

may not insist that nonmembers affirmatively consent to

the use of their dues for political purposes. The Washington Supreme Court fundamentally erred by treating

the constitutionally required procedures for protecting

dissenters’ rights as a constitutional ceiling, rather than

a floor, on the protections the government may afford

individuals who decline to join a union.

III. The constitutionality of Washington’s affirmative-authorization requirement is underscored by this

Court’s decisions upholding campaign-finance laws that

impose more burdensome requirements on unions. Under federal law, unions generally may not finance fed-
9

eral political activities with general treasury funds derived from nonmembers’ fees, or even from members’

dues, regardless of whether the member or nonmember

would consent to that use. Instead, unions must: establish separate segregated funds; solicit separate voluntary contributions to those funds; and observe strict

limits on their solicitation of contributions from nonmembers. Because the constitutionality of those federal

restrictions is well-settled, it follows a fortiori that

Washington’s more modest affirmative-authorization

requirement is constitutional as well.

ARGUMENT

This Court long ago established that the First Amendment prohibits unions from using for political purposes fees collected under a state-imposed union-shop or

agency-shop arrangement from nonmembers who object

to the union’s political activities. In many States, that

constitutional prohibition is given effect by permitting

nonmembers to opt out of any regime in which their

dues are used for political purposes. The basic question

in this case is whether the Constitution prohibits a State

from imposing an opt-in requirement that prevents a

union from using nonmembers’ fees for political purposes unless workers affirmatively authorize it. The

answer is clearly no. Far from violating the First Amendment, such a requirement actually advances First

Amendment values by safeguarding the interests of nonmembers in not having to pay for union political activities with which they disagree. The added protections

afforded nonmembers in no way intrude on the First

Amendment interests of unions. Indeed, unions have no

First Amendment interest at all in using nonmembers’

dues for political activities with which they disagree.
10

I. WASHINGTON’S AFFIRMATIVE-AUTHORIZATION REQUIREMENT PROMOTES THE LEGITIMATE FIRST

AMENDMENT INTERESTS OF NONMEMBERS AND THE

INTEGRITY OF THE ELECTION PROCESS

A. Union-shop and agency-shop arrangements directly impact the First Amendment interests of workers

who are compelled by state law to pay dues or fees to

the union. As this Court has recognized, because

“[u]nions traditionally have aligned themselves with a

wide range of social, political, and ideological viewpoints,” Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507,

516 (1991), “[a]n employee may very well have ideological objections to a wide variety of activities undertaken

by the union.” Abood v. Detroit Bd. of Educ., 431 U.S.

209, 222 (1977). In order to further the government’s

interest in labor peace, the government may nonetheless

authorize union-shop or agency-shop arrangements.

Railway Employees’ Dep’t v. Hanson, 351 U.S. 225, 233-

235 (1956). But as this Court has emphasized, “allowing

the union shop at all” is “a significant impingement on

First Amendment rights.” Ellis v. Brotherhood of Ry.

Clerks, 466 U.S. 435, 455-456 (1984); see Chicago Teachers Union v. Hudson, Local No. 1, 475 U.S. 292, 301

(1986); Abood, 431 U.S. at 222. As a result, “[t]here can

be no doubt that it is within the police power of a State

to prohibit the union * * * shop.” Hanson, 351 U.S. at

233; accord Lincoln Fed. Labor Union v. Northwestern

Iron & Metal Co., 335 U.S. 525, 531 (1949).

If the government authorizes a union or agency shop,

employees may be required to pay only their fair share

of “the work of the union in the realm of collective bargaining,” work from which all employees benefit. Hanson, 351 U.S. at 235. The First Amendment prohibits
11

1 This Court’s decisions concerning public-sector workers, such as

the nonmembers at issue here, are grounded in the First Amendment.

E.g., Hudson, 475 U.S. at 301-302. This Court has also construed

federal labor statutes to confer the same rights on private-sector

workers, in order “to avoid serious doubt of their constitutionality.”

International Ass’n of Machinists v. Street, 367 U.S. 740, 749 (1961).

the government from requiring workers to support a

union’s political activities over their objection. Hudson,

475 U.S. at 301-302; Abood, 431 U.S. at 234. Thus,

union- or agency-shop fees “must (1) be ‘germane’ to

collective-bargaining activity; (2) be justified by the government’s vital policy interest in labor peace and avoiding ‘free riders’; and (3) not significantly add to the burdening of free speech that is inherent in the allowance of

an agency or union shop.” Lehnert, 500 U.S. at 519.1

B. The federal and state governments have adopted

various approaches to balancing their interest in promoting labor peace with their interest in protecting

workers who would prefer not to associate with a union.

The National Labor Relations Act, 29 U.S.C. 151 et seq.,

generally authorizes private-sector employers and unions to enter into union-shop or agency-shop agreements, 29 U.S.C. 158(a)(3), but also permits States to

ban such arrangements, 29 U.S.C. 164(b). See NLRB v.

General Motors Corp., 373 U.S. 734, 742-744 (1963).

Approximately half of the States have enacted “right-towork” laws restricting or prohibiting private-sector union or agency shops. See Employment Standards Admin., U.S. Dep’t of Labor, State Right-to-work Laws

(last modified Dec. 2005) <http://www.dol.gov/esa /programs/whd/ state/righttowork.htm>; 05-1657 Pet. App.

35a-36a n.3 (collecting state laws).

Federal and state governments have also adopted a

variety of approaches to union and agency shops in the
12

context of public-sector employment. The federal government, for example, does not permit federal employers and unions to enter into union-shop or agency-shop

arrangements at all. See generally 5 U.S.C. 7102 (granting each employee the right to “refrain” from “assist-

[ing] any labor organization”). In contrast, Washington,

like several other States, generally authorizes publicsector employers and unions to enter into agency-shop

(but not union-shop) agreements. E.g., Wash. Rev. Code

Ann. §§ 41.56.122(1), 41.59.100 (West 2006).

In the statute at issue here, Washington mitigated

the impact of the agency-shop arrangement on nonmembers’ freedom of association and speech by requiring

unions to obtain nonmembers’ affirmative authorization

before using their fees for political purposes. Wash.

Rev. Code Ann. § 42.17.760. That provision grants workers greater procedural protection than the constitutional floor by requiring unions to obtain nonmembers’

affirmative authorization before using their compelled agency shop fees for political purposes, instead of

putting the burden on nonmembers to opt out. Although

not constitutionally required, the provision directly

serves First Amendment values by protecting the rights

of nonmembers, while ensuring that the unions’ political

activities reflect the views of those who fund them.

Washington thereby struck a reasonable balance

between the two competing government interests. It

chose to permit agency shops notwithstanding their

“significant impingement on First Amendment rights”

of workers, Ellis, 466 U.S. at 455-456, but conditioned

that permission on the modest, and highly germane, requirement that unions obtain nonmembers’ affirmative

authorization before using their fees for political purposes, Wash. Rev. Code Ann. § 42.17.760. That require-
13

ment ensures that nonmembers’ contributions to the

political activities of the unions are made knowingly and

voluntarily, in part by “remind[ing] those persons that

they are giving money for political purposes and

counteract[ing] * * * inertia.” Michigan State AFLCIO v. Miller, 103 F.3d 1240, 1253 (6th Cir. 1997).

Striking such a balance between competing government

interests is a quintessentially appropriate exercise of

the State’s police power in this area.

C. As the Washington Supreme Court recognized,

the affirmative-authorization requirement also “protect[s] the integrity of the election process from the perception that elected officials are improperly influenced

by monetary contributions and the perception that individuals have an insignificant role to play.” 05-1657 Pet.

App. 12a. This Court has long recognized the government’s authority to protect against the corruption or

appearance of corruption that can accompany unions’

political contributions, as well as the potential that workers’ union dues or fees will be used to support political

causes that they oppose. FEC v. National Right to

Work Comm., 459 U.S. 197, 208 (1982) (NRWC); see pp.

25-27, infra. Washington law directly promotes that

weighty interest by ensuring that any spending of nonmember dues on political activities actually reflects the

will of the nonmembers because, like the contributions

of nonmembers in virtually any other context, they involve the affirmative authorization of the workers.

II. THE AFFIRMATIVE-AUTHORIZATION REQUIREMENT

DOES NOT ABRIDGE FREEDOM OF SPEECH OR ASSOCIATION, BUT INSTEAD PROMOTES IT

The Washington law at issue in no way impedes the

First Amendment rights of unions. Indeed, unions re-
14

ceive preferential treatment under Washington law compared with other speakers. Washington requires only

that unions obtain affirmative authorization from nonmembers before using their fees for political purposes—a practical requirement faced by everyone else

who seeks to use other peoples’ money for speech. Even

so, unions are still favored vis-a-vis other speakers.

Other groups must identify and seek out contributors,

and even if they receive an affirmative pledge of support, they still face uncertain prospects of collecting. By

contrast, Washington law authorizes unions to impose

fees on nonmembers and requires employers to collect

those fees through payroll deductions, which almost certainly increases the amount collected while reducing the

union’s collection costs. See, e.g., Wash. Rev. Code Ann.

§§ 41.56.122(1), 41.59.100. The First Amendment does

not entitle unions to even more preferential treatment.

A. The Washington Law Does Not Infringe Union Members’ Freedom Of Speech Or Association

1. The Washington Supreme Court held that Washington’s affirmative-authorization requirement must

satisfy strict scrutiny because “[r]egulation of First

Amendment rights is always subject to exacting judicial

scrutiny.” 05-1657 Pet. App. 18a. But the level of scrutiny varies depending on the type of restriction at issue.

See, e.g., United States v. O’Brien, 391 U.S. 367 (1968)

(applying intermediate scrutiny). Here, there is no cognizable restriction on the union’s speech, and certainly

none triggering strict scrutiny. The Washington law

does not prohibit the union from speaking, regulate the

content of the union’s speech, or even limit the time,

place, or manner of the union’s speech. Nor does the

statute limit the amount of money the union can raise or
15

spend on speech. Instead, having authorized unions to

collect fees from nonmembers, it merely requires the

union to ensure that nonmembers “say ‘yes’” to the use

of those compelled fees for political purposes, instead of

merely ascertaining that they “fail[ed] to say ‘no.’” 05-

1657 Pet. App. 10a.

That affirmative-authorization requirement imposes

no restriction on the First Amendment rights of unions,

and furthers First Amendment values overall. Indeed,

it is beyond dispute that unions may not compel the payment of dues from nonmembers for political activities

with which those workers disagree. See pp. 10-11, supra. Unions enjoy no First Amendment right to take

and use workers’ wages to fund their own political agenda unless and until the workers object.

2. Nor is union members’ freedom of association

meaningfully implicated, much less violated. Because

“[t]he right to speak is often exercised most effectively

by combining one’s voice with the voices of others,” this

Court has recognized “a First Amendment right to associate for the purpose of speaking.” Rumsfeld v. Forum

for Academic & Institutional Rights, Inc., 126 S. Ct.

1297, 1311-1312 (2006) (FAIR). The Washington statute, however, in no way infringes on that right. Union

members are free to associate and pool their (own)

funds. They remain free to determine the content of

their shared message and the means of communicating

it. And their ability to organize the union’s internal affairs is likewise unaffected by the Washington law.

The opt-in requirement only restricts the unions’

unique and state-enabled ability to compel fees from

nonmembers and then use them for political purposes.

It does not even bar that use of nonmembers’ fees—it

only requires the union to obtain their permission. Far
16

from abridging the freedom of association, that requirement supports it by protecting nonmembers’ freedom

not to associate with the union. “Freedom of association

* * * plainly presupposes a freedom not to associate,”

especially when it comes to political activities. Roberts

v. United States Jaycees, 468 U.S. 609, 623 (1984).

B. The Administrative Cost Of Obtaining Nonmembers’

Authorization Is Not An Unconstitutional Burden

The Washington Supreme Court nonetheless held

that the affirmative-authorization requirement is subject to strict scrutiny because the administrative costs

of securing nonmembers’ authorization “significantly

burden the union’s expressive activity.” 05-1687 Pet.

App. 27a; see id. at 31a-32a. That conclusion is fundamentally flawed as both a practical and legal matter. In

reality, the administrative costs are minimal and, in any

event, are better understood as a minor reduction in the

administrative advantage conferred by the agency-shop

arrangement, rather than the imposition of any burden.

1. The negligible administrative costs imposed by

the Washington law do not approach a constitutional

dimension. The requisite consent may be obtained

through a routine mailing (and does not even have to be

in writing, 05-1657 Pet. App. 11a). No additional mailing

would even be necessary, because the union already

sends a packet to nonmembers twice each year informing them of the right to object to paying fees for political

expenses. Id. at 4a. The Washington court expressed

concern that the need to obtain advance authorization

would complicate the union’s book-keeping, but as that

court acknowledged, the union can simply “hold the
17

2 The Washington statute at issue does not require public disclosure

of an organization’s members or contributors. See, e.g., NAACP v.

Alabama ex rel. Patterson, 357 U.S. 449, 453-454, 462-463 (1958). Nor

does it impose any penalties on group members or withhold generally

applicable benefits from them. See, e.g., Healy v. James, 408 U.S. 169,

180-184 (1972).

amount allocated to political activity in escrow while

seeking affirmative authorization.” Id. at 32a.2

The Washington Supreme Court expressed concern

that “the lack of access to those funds could impact the

timeliness of the union’s political speech” while the union sought authorization. 05-1657 Pet. App. 32a. But

that concern only underscores the extent to which the

Washington court “turn[ed] the First Amendment on its

head.” Id. at 37a. This Court has long rejected similar

arguments, explaining that such “union borrowing”

would violate nonmembers’ First Amendment rights by

requiring them to subsidize political activities with

which they might disagree, even if only temporarily.

Ellis, 466 U.S. at 444; accord Hudson, 475 U.S. at 305.

Thus, especially where there are “readily available alternatives” (here, obtaining consent before using money for

political purposes), this Court has held that such borrowing cannot be justified by “administrative convenience.” Ellis, 466 U.S. at 444. The union’s administrative convenience is simply not a constitutional right, especially when contrasted against a nonmember’s interest in not subsidizing the union’s political speech.

That is particularly true because the challenged provision is better understood as a minor reduction in the

unique advantages the State gives unions when it comes

to nonmembers’ political contributions in the agencyshop context, rather than the imposition of a burden,

however small. Washington law as a whole relieves un-
18

3 Respondent’s position is further undermined by this Court’s holding that denial of food stamps to striking workers imposes no undue

burden. Lyng v. International Union, 485 U.S. 360 (1988). As this

Court explained, “strikers’ right of association does not require the

Government to furnish funds to maximize the exercise of that right,”

even though “[i]t would be difficult to deny that [the prohibition] works

at least some discrimination against strikers and their households.” Id.

at 368, 371. If the government can discriminatorily deny the generally

available benefit of food stamps to striking union members, it can deny

unions a benefit not available to other speakers—the right to use

nonmembers’ wages for political purposes without their authorization.

ions of administrative burdens faced by most if not all

other speakers. As discussed, Washington permits unions to collect mandatory fees from nonmembers

through paycheck withholding, and thereby reduces unions’ collection costs while likely increasing the amount

collected. See p. 14, supra. Every other organization

needs to seek out contributions and, even if a potential

contributor “opts in” with a pledge of support, it faces

the difficult task of collecting the pledge. Far from

burdening unions, Washington therefore favors them

vis-a-vis other speakers.

Any remaining doubt is dispelled by this Court’s decisions holding that far more serious burdens do not

abridge union members’ freedom of association. As discussed, unions have no First Amendment right to compel nonmembers to pay any agency shop fees, even

when collective bargaining benefits the nonmembers.

See p. 10, supra. It follows a fortiori that the First

Amendment is not violated by the far lesser burden of

obtaining nonmembers’ consent before using a portion

of their compelled fees for political activity.3

2. Citing this Court’s decision in Dale, supra, the

Washington court concluded that it must “give deference

to the union’s view of what would impair its political ex-
19

4 In any event, the Dale Court did not simply defer to the Boy

Scouts’ assessment of the law’s interference with its message. Rather,

the Court found that the law actually required the organization to

convey a message contrary to its beliefs. Dale, 530 U.S. at 648, 653-654.

In FAIR, this Court similarly declined to defer to the law schools’ views

of what impaired their freedom of association, explaining that “a

speaker cannot ‘erect a shield’ against laws requiring access ‘simply by

asserting’ that mere association ‘would impair its message.’” 126 S. Ct.

at 1312 (quoting Dale, 530 U.S. at 653). There is no greater basis for

deference to the union’s views here.

pression.” 05-1657 Pet. App. 32a; see id. at 30a. That

was error. At the outset, the court’s reliance on Dale

only underscores its inversion of the First Amendment.

Dale upheld the Boy Scouts’ right not to associate with

individuals whose participation would impair the group’s

ability to express its message. 530 U.S. at 648. Here,

the union is not complaining that a forced association—i.e., an association forced on it by state laws—is

interfering with its ability to communicate its message.

To the contrary, the union seeks a greater degree of

forced association between the nonmembers (or at least

their fees) and the union to facilitate the dissemination

of the union’s message. Recognizing that claim would

turn both Dale and the First Amendment on their

heads.4

3. The Washington Supreme Court’s conclusion that

the affirmative-authorization requirement “violates the

First Amendment rights of nonmembers” is inexplicable. 05-1657 Pet. App. 20a (emphasis added). The court

observed that some nonmembers may support the union’s political expenditures. Ibid. That is certainly possible, though it seems likely that the 5% who chose not

to join the union will choose not to support the union’s

political activities, either. See id. at 4a. Even so, Washington does not prevent any nonmember from associat-
20

ing with the union, authorizing the union to use his

agency shop fees for political purposes, or otherwise

contributing to the union. All such a worker must do is

inform the union—the organization whose political activities he wants to support—of his consent. Such a simple

notification requirement places no more of a burden on

the freedom of association than a requirement that those

employees who wish to join a union sign up. And it imposes less of a burden than the nonmembers face in supporting any other cause or group they might wish to

support. That is, it imposes no constitutionally cognizable burden at all.

C. The Constitutional Floor For Protecting Nonmembers’

First Amendment Rights Is Not Also A Constitutional

Ceiling On Such Protections

The Washington Supreme Court’s decision is premised on its erroneous belief that the constitutional floor

that this Court has established for protecting the First

Amendment rights of nonmembers against being compelled to pay for union political activities with which

they disagree also establishes a constitutional ceiling on

how far States can go in protecting those rights.

As discussed, unions have no constitutional right to

compel membership or to collect agency shop fees from

nonmembers. See p. 10, supra. If the government nonetheless authorizes unions and employers to enter into

agreements requiring employees to pay such fees, dissenting workers have a constitutional right to “an adequate explanation of the basis for the fee, a reasonably

prompt opportunity to challenge the amount of the fee

before an impartial decisionmaker, and an escrow for

the amounts reasonably in dispute.” Hudson, 475 U.S.

at 310. Under that procedure, dissenting workers may
21

not be compelled to pay for union political activities with

which they disagree, but the burden generally falls on a

dissenter to object to the payment of any fees that would

be used for political purposes. Id. at 306.

In outlining that constitutionally sufficient remedy,

this Court did not so much as suggest that greater protection of nonmembers’ First Amendment rights would

violate unions’ First Amendment rights. See Keller v.

State Bar, 496 U.S. 1, 17 (1990) (noting that Hudson

“outlined a minimum set of procedures”) (emphasis

added). In situations where a union had a statutory

right to collect a union or agency shop fee, this Court

described its remedial objective as “devis[ing] a way of

preventing compulsory subsidization of ideological activity by employees who object thereto without restricting

the Union’s ability to require every employee to contribute to the cost of collective-bargaining activities.” Hudson, 475 U.S. at 302 (quoting Abood, 431 U.S. at 237).

That objective protects only the union’s statutory right

to collect “the cost of collective-bargaining activities,”

ibid.; it does not provide an entitlement to some degree

of windfall (generated by the laws of inertia) to cover the

cost of political activities. Because Washington’s affirmative-authorization requirement does not affect in any

way the union’s collection and use of agency shop fees

for collective bargaining activities, it falls well within the

broad remedial parameters identified by this Court in

Hudson and Abood.

The Washington Supreme Court reached a contrary

conclusion only by overreading statements in this

Court’s decisions to the effect that “[d]issent is not to be

presumed—it must affirmatively be made known to the

union by the dissenting employee.” 05-1657 Pet. App.

16a (quoting Street, 367 U.S. at 774). But those state-
22

ments were premised on the relevant state of the law in

Street, not a statement of constitutional law. Because

the union in Street had an unconditional statutory right

to use agency shop fees for political purposes in the absence of a worker’s objection, this Court explained that

the union should be able to rely on that right without

fear of being penalized with broad injunctive or other

relief in a class action. Street, 367 U.S. at 774. That

concern is absent here because the affirmative-authorization requirement puts unions on notice that they have

no right to use nonmembers’ fees for political purposes

without their approval. Thus, there is no concern about

fair notice and no reason whatsoever to think that the

opt-out, as opposed to opt-in, regime is constitutionally

compelled.

To the contrary, the State’s discretion to permit or

prohibit agency shops logically entitles it to condition

the statutory benefit to the union of an agency shop on

greater protection for nonmembers than the Constitution requires. Governments may condition the availability of statutory benefits on private parties’ willingness

to forego even activities the First Amendment would

otherwise protect. See, e.g., Regan v. Taxation with

Representation, 461 U.S. 540, 545 (1983) (Congress may

condition tax exemption on abstention from otherwise

protected political activity); Buckley v. Valeo, 424 U.S.

1, 57 n.65 (1976) (Congress “may condition acceptance of

public funds on an agreement by [a candidate for federal

office] to abide by specified expenditure limitations”

that would otherwise be unconstitutional). Washington’s

opt-in requirement is a reasonable and highly germane

condition on unions’ acceptance of the statutory right to
23

5 The Washington Supreme Court asserted that “there is no

indication that * * * the voters intended to provide more protection

for nonmembers than that offered under federal constitutional principles” when they voted in favor of the ballot initiative that included the

affirmative-authorization requirement. 05-1657 Pet. App. 22a. That is

clearly wrong, because on its face the affirmative-authorization requirement does just that and, of course, that view of the referendum not only

reflects its text, but is the premise of the decision invalidating the provision. The Washington court may be correct that “the principal thrust

of” the ballot initiative as a whole “was to protect the integrity of the

election process.” Ibid. But the way in which the affirmative-authorization requirement furthers that purpose is by protecting nonmembers

(as well as the public) against the use of their compelled fees for political purposes they do not support.

enter into collective bargaining agreements that compel

nonmembers to pay agency shop fees.5

III. THIS COURT’S CAMPAIGN-FINANCE DECISIONS

UNDERSCORE THE CONSTITUTIONALITY OF THE

AFFIRMATIVE-AUTHORIZATION REQUIREMENT

The Washington Supreme Court’s decision invalidating the State’s opt-in requirement is also fundamentally

out of step with this Court’s decisions upholding more

burdensome campaign-finance laws against First Amendment challenges. That disconnect provides an additional basis for overturning the decision below.

A. Under the Federal Election Campaign Act of

1971 (FECA), 2 U.S.C. 431 et seq., it is unlawful for a union or corporation “to make a contribution or expenditure in connection with any election” for federal office.

2 U.S.C. 441b(a). Although a union or corporation may

establish “a separate segregated fund [SSF] to be utilized for political purposes,” 2 U.S.C. 441b(b)(2) (Supp.

IV 2004), such an SSF generally may not use “dues, fees,

or other moneys required as a condition of membership
24

in a labor organization or as a condition of employment,”

2 U.S.C. 441b(b)(3)(A); see 11 C.F.R. 114.5(a)(1). Rather, the SSF operates as an opt-in requirement, barring a union or corporation from using workers’ contributions for political purposes unless an employee affirmatively contributes funds to the SSF. See ibid.

Moreover, in addition to that opt-in requirement, it

is generally unlawful for a union or its SSF to “solicit

contributions * * * from any person other than its

members and their families.” 2 U.S.C. 441b(b)(4)(A)(ii).

The only exception is that unions and their SSFs, like

corporations and their SSFs, may “make 2 written solicitations for contributions during a calendar year” from

employees and certain other individuals. 2 U.S.C.

441b(b)(4)(B); see 11 C.F.R. 114.6(a).

Such solicitations are carefully regulated to ensure

that contributions are voluntary. Solicitations of a nonmember must be made by mail to the person’s residence,

and must be designed to prevent the labor organization

or corporation conducting the solicitation from determining which recipients do not contribute or contribute

$50 or less. 2 U.S.C. 441b(b)(4)(B). All potential donors,

including union members, must also be informed of “the

political purposes of [the] fund” and their “right to refuse to * * * contribute without any reprisal.” 2

U.S.C. 441b(b)(3)(B) and (C); see 11 C.F.R. 114.6(c).

The Federal Election Commission’s regulations protect

the anonymity of solicited nonmembers by requiring

contributions to be sent to a custodian, who must keep

detailed records of contributions and make various disclosures to the Commission. 11 C.F.R. 114.6(d).

To protect the voluntariness and anonymity of contributions, the Commission has also forbidden the use of

payroll deductions to collect contributions from non-
25

6 The Washington statute exempts from its reach the financing of all

campaigns “for a federal elective office.” Wash. Rev. Code Ann.

§ 42.17.030 (West 2006). That provision underscores that funds raised

in compliance with state laws must also comply with more demanding

provisions of FECA to the extent the funds are spent on federal

elections.

members. 11 C.F.R. 114.6(e)(1). Unions and SSFs may

use employers’ payroll deduction systems to facilitate

members’ regular contributions (11 C.F.R. 114.5(k)(1)),

but even when such systems are used “there must be an

affirmative authorization by the contributor in order to

permit the deduction.” FEC Advisory Opinion 2001-04,

1 Fed. Election Camp. Fin. Guide (CCH) ¶ 6360.

Like the Washington statute, Section 441b therefore

permits a union to use a nonmember’s wages for political

purposes only if the nonmember has affirmatively authorized that use. Moreover, Section 441b is more restrictive than the Washington statute in several important

respects. Under Washington law, a union may fund political activities with its general treasury funds, including funds derived from members’ dues and nonmembers’

agency shop fees (with the nonmembers’ consent). Under federal law, however, a union may not do so with

respect to federal elections. Instead, it must: incur the

costs of establishing an SSF with a custodian who is subject to record-keeping and reporting obligations; solicit

separate political contributions from members and nonmembers alike; and refrain from using payroll deductions to collect any contributions from nonmembers.6

B. Significantly, the constitutionality of Section 441b

is well-settled. This Court has upheld the constitutionality of Section 441b in decisions that indicate, a fortiori,

that Washington’s less burdensome affirmative-authorization requirement is constitutional. For example, in
26

NRWC, in which this Court upheld Section 441b’s solicitation limits, the Court explained that Section 441b

“protect[s] the individuals who have paid money into a

corporation or union for purposes other than the support

of candidates from having that money used to support

political candidates to whom they may be opposed.” 459

U.S. at 208. The Court further explained that Section

441b protects the public against unions’ and corporations’ ability to amass “substantial aggregations of

wealth” that may “be used to incur political debts from

legislators” but may not reflect contributors’ actual support for an organization’s message. Id. at 207.

Although NRWC involved a corporation without capital stock rather than a union, this Court drew no distinction between the different types of organizations in upholding Section 441b’s solicitation limits in light of the

long history of congressional regulation of unions’ and

corporations’ political contributions and expenditures.

459 U.S. at 208; see Pipefitters Local Union No. 562 v.

United States, 407 U.S. 385, 401-414 (1972) (detailing

history of regulation of union political activity and longstanding rule that unions’ participation can be limited to

voluntary contributions to an SSF).

This Court later drew on NRWC in upholding Section

441b’s ban on political contributions, noting that the

statute protects “individuals who have paid money into

a corporation or union for [non-political] purposes” while

also “permit[ing] some participation of unions and corporations in the federal election process by allowing

them to establish and pay the administrative expenses”

of SSFs. FEC v. Beaumont, 539 U.S. 146, 154, 162-163

(2003) (quoting NRWC, 459 U.S. at 201, 208). For those

reasons, this Court upheld Section 441b’s ban on political contributions, notwithstanding the “administrative
27

7 In opposing certiorari, respondent argued (Br. in Opp. 17) that

Washington’s statute discriminates against unions because it does not

apply to corporations. That issue, however, is not properly before this

Court because it was not pressed or passed on below. See 05-1657 Pet.

App. 25a n.6 (“The parties have not raised, and we do not address, any

argument concerning § 760’s application solely to labor organizations.”).

burdens” required to establish and administer an SSF.

Id. at 163; see McConnell v. FEC, 540 U.S. 93, 203-209

(2003) (upholding amendments that broadened Section

441b to prevent circumvention of its prohibitions); Austin v. Michigan State Chamber of Commerce, 494 U.S.

652, 660 (1990) (upholding state-law prohibition on corporate expenditures, in part because it “ensures that expenditures reflect actual public support for the political

ideas espoused by corporations”).

The Washington Supreme Court’s decision in this

case is irreconcilable with those cases. For example,

because this Court recognized in NRWC that the government may limit solicitations of voluntary contributions, it follows that the government may condition the

use of involuntary fees on nonmembers’ consent. Similarly, because this Court recognized in Beaumont that

the government may prohibit altogether the use of treasury funds for political activities, it follows that the government may condition the use of treasury funds derived

from nonmembers’ compelled fees for political activities

on the nonmembers’ consent.7

C. Respondent errs in arguing (Br. in Opp. 17-18)

that NRWC is distinguishable because it involved a contribution limit, as opposed to an expenditure limit.

While “restrictions on political contributions have been

treated as merely ‘marginal’ speech restrictions subject

to relatively complaisant review under the First Amendment,” restrictions on political expenditures are subject
28

to strict scrutiny. Beaumont, 539 U.S. at 161. That distinction is irrelevant here because the Washington statute does not impose an expenditure limit within the

meaning of this Court’s cases.

The Washington law directly regulates neither contributions nor expenditures, but instead regulates the

means by which the union solicits the subset of contributions facilitated by the State’s agency-shop laws. In that

sense, it is analogous to the solicitation restrictions upheld under a relatively deferential standard of review in

NRWC. The effect of Washington’s statutes, like the

provisions upheld in NRWC, is to regulate political contributions (namely, by requiring nonmembers’ affirmative authorization). Indeed, any effect the affirmativeauthorization requirement might have on unions’ political expenditures or contributions would result not from

a State-imposed limit on unions’ expenditures or contributions, but from a reduction in nonmembers’ contributions to unions’ political activities (or the minimal administrative costs of seeking authorization). Thus, the statute regulates at most contributions, not expenditures.

In McConnell, this Court analyzed as a contribution

limit FECA’s prohibition against political parties’

spending of soft money. 540 U.S. at 138-139. Although

the plaintiffs there argued that “provisions restrict[ing]

not only contributions but also the spending and solicitation of funds raised outside of FECA’s contribution limits” were expenditure limits subject to strict scrutiny,

this Court disagreed. Id. at 138. The Court explained

that “[t]he relevant inquiry is whether the mechanism

adopted to implement the contribution limit * * * burdens speech in a way that a direct restriction on the contribution would not.” Id. at 138-139. Because the limits

on parties’ spending of soft money did not “limit[] the
29

8 While Washington’s affirmative-authorization requirement is clearly not an expenditure limit subject to strict scrutiny, it is unclear whether it is even subject to the lesser scrutiny applicable to contribution

limits. Washington does not prevent nonmembers from contributing to

unions’ political activities; does not limit the amount nonmembers can

contribute (beyond providing that nonmembers’ compelled agency shop

fees must be the same as members’ dues); and does not limit the uses

to which contributions can be put. Thus, it is unclear whether any

heightened First Amendment scrutiny applies here.

total amount of money the parties can spend,” but instead “simply limit[ed] the source and individual amount

of donations,” they were contribution rather than expenditure limitations. Id. at 139. The Washington affirmative-authorization requirement imposes direct limits on

neither contributions nor expenditures, but simply regulates the terms by which a unique subset of

funds—those facilitated by the state agency-shop

laws—can be solicited. In essence, it says that consent

to use those funds for political purposes must be solicited, and should not be presumed. Under NRWC and

McConnell, therefore, the affirmative-authorization requirement is not an expenditure limit, but rather is subject to much more complaisant review.8

D. Respondent also errs in arguing (Br. in Opp. 18)

that Washington’s affirmative-authorization requirement is unconstitutional because it applies to ballot initiatives as well as candidate elections. Although NRWC

involved only contributions to political candidates and

not ballot initiatives (see NRWC, 459 U.S. at 210 n.7),

that point hardly supports the Washington Supreme

Court’s decision. That court invalidated the Washington

statute in its entirety, not only as applied to ballot initiatives. See 05-1657 Pet. App. 34a.
30

More fundamentally, the type of political expenditure

(candidate or ballot initiative) has never mattered for

purposes of the right not to have coerced fees used for

political purposes and is of no moment here. Respondent relies (Br. in Opp. 18) on First National Bank v.

Bellotti, 435 U.S. 765 (1978), which invalidated a flat ban

on the use of corporate funds (without even the option of

financing expenditures through an SSF or political action committee) for advocacy related to ballot initiatives.

See id. at 794. Bellotti did not suggest that corporate

and union participation in referenda are wholly immune

from regulation, and instead it affirmatively endorsed

disclosure requirements. See id. at 792 n.32.

As discussed, Washington’s affirmative-authorization

requirement does not restrict unions’ spending on ballot

initiatives or, for that matter, on any particular political

topics. It only requires unions to obtain nonmembers’

consent before using their compelled fees for political

purposes in general. The First Amendment requires an

opt-out right in this context for the use of compelled fees

for political purposes, not just for their use in candidate

elections. The legitimate First Amendment values that

are served by requiring affirmative consent are in no

way limited to candidate elections, and so the provision

is constitutional regardless of the subject matter of the

unions’ political speech. Cf. Bellotti, 435 U.S. at 794 n.34

(distinguishing between the corporate funds at issue

there and funds raised from union members’ compelled

agency fees).

CONCLUSION

The judgment of the Supreme Court of Washington

should be reversed and the cases remanded.

Respectfully submitted.
31

LAWRENCE H. NORTON

General Counsel

RICHARD B. BADER

Associate General Counsel

DAVID KOLKER

Assistant General Counsel

STEVE N. HAJJAR

Attorney

Federal Election Commission

HOWARD M. RADZELY

Solicitor

KATHERINE E. BISSELL

Associate Solicitor

NORA CARROLL

Senior Attorney

Department of Labor

PAUL D. CLEMENT

Solicitor General

PETER D. KEISLER

Assistant Attorney General

GREGORY G. GARRE

Deputy Solicitor General

DARYL JOSEFFER

Assistant to the Solicitor

General 

DOUGLAS N. LETTER

AUGUST E. FLENTJE

Attorneys 

NOVEMBER 2006