Davenport v. Washington Education Association; Washington v. Washington Education Association


  1. Does a labor union have a First Amendment right to spend the wages of non-union members for political purposes?
  2. Does a law requiring labor unions to obtain the permission of non-union members before using their paid fees for political purposes (instead of allowing the unions to use such fees from any nonmembers who do not expressly opt out of such use) unconstitutionally violate the unions' First Amendment rights?
Oral argument: 
January 10, 2007
Court below: 


The State of Washington and several Washington educational employees brought suit against the Washington Education Association alleging that the union impermissibly used non-union member “shop fees” to finance political activities in violation of Wash. Rev. Code § 42.17.760's requirement that the union receive affirmative authorization from nonmembers before using their fees for political purposes. The Washington Supreme Court sided with the union and struck down § 760 as unconstitutional. Washington argues that the union does not have a First Amendment right to use shop fees for political purposes. The union responds that § 760 essentially blocks its ability to assert a collective political voice and must survive strict scrutiny to pass constitutional muster. The Supreme Court's decision will determine the balance of First Amendment protection granted to a labor union relative to the protection afforded to dissenting nonmembers who pay shop fees.

Questions as Framed for the Court by the Parties 

  1. Do labor union officials have a First Amendment right to seize and use for politics the wages of employees who have chosen not to become union members?
  2. Does a state campaign finance law that prohibits labor unions and their officials from seizing and using the wages of nonmembers for partisan political campaigns without obtaining the nonmembers' affirmative consent violate the First Amendment rights of labor unions?
  3. Does the requirement in Wash. Rev. Code § 42.17.760 that nonmembers must affirmatively consent (opt-in) before their fees may be used to support the union's political agenda violate the union's First Amendment rights?


The Washington Employment Association (WEA) is the exclusive bargaining agent for 70,000 Washington state educational employees. Washington State Public Disclosure Commission v. Washington Education Association (WEA), 130 P.3d 352, 354 (2006). Though membership is voluntary, approximately 95% of Washington state educational employees are members of the WEA. Id. However, under Washington campaign finance law as expressed in Wash. Rev. Code § 42.17.760 [hereinafter § 760], nonmembers must pay an agency “shop fee” equivalent to membership dues. Id. Both shop fees and membership fees are withheld through payroll deductions. Id. A portion of the money collected as either shop fees or membership dues is spent on behalf of all employees in relation to the WEA's collective bargaining activities. Id. An additional portion of the money collected is spent in support of the WEA's political agenda. Id.

Nonmembers who do not wish to support the WEA's political activities may obtain a rebate of the portion of the fees used for those activities. Id. The process by which the WEA rebates this amount to dissenting nonmembers was established by Chicago Teachers Union v. HudsonId. (citing Hudson, 475 U.S. 292 (1986)). Twice a year each nonmember receives a Hudson packet that includes a letter notifying them of his or her right to object to paying fees in support of the WEA's political activities. Id. After receiving a Hudson packet, a dissenting nonmember can “opt-out” and elect to receive a rebate of the portion of shop fees used in support of these activities. Id. Between 1996 and 2000 the amount of these rebates ranged from $44 to $76 per objecting nonmember. Id.

In August 2000, the Evergreen Freedom Foundation filed a complaint with the Washington Public Disclosure Commission alleging that the WEA had violated § 760Id. at 355. Section 760 provides, in pertinent part, that a labor organization may not use shop fees from nonmembers “to make contributions or expenditures to influence an election or to operate a political committee, unless affirmatively authorized by the individual.” Id. at 356 (citing RCW 42.17.760) (emphasis added). Evergreen's complaint alleged that the WEA had failed to get the affirmative authorization of all nonmembers before suing the nonmembers' fees for political purposes as required by statute. Id. at 355. The WEA stipulated that it had violated § 760, and the Public Disclosure Commission referred the case to the Washington Attorney General for prosecution. Id.

In October 2000, the State of Washington (Washington) brought suit alleging that the WEA had violated § 760 during the period from 1996 to 2000. Id. In 2002 the trial court concluded that 1) § 760 was constitutional, 2) § 760 requires “affirmative authorization” from nonmembers, and 3) that the WEA had used nonmember fees for political purposes in violation of the statute. Id. On appeal, Division Two of the Court of Appeals reversed the trial court, holding that § 760 was unconstitutional because the “affirmative authorization” requirement unduly burdened the union. Id.

Meanwhile, in 2001, a group of nonmember educational employees, including Petitioner Gary Davenport, brought a class action lawsuit seeking a refund of shop fees used for political expenditures. Id. The trial court refused to dismiss the case and ruled that § 760 provides a right of action for private citizen plaintiffs and not just the state. Id. at 356. The Court of Appeals subsequently held that § 760 was unconstitutional and remanded the case for dismissal. Id.

After consolidating the appeals, the Washington Supreme Court looked at the plain language of § 760's “affirmative authorization” requirement and determined that express positive authorization was required in order for the WEA to use shop fees for political activities. Id. It then ruled that failure to respond to the Hudson packet would not fulfill the authorization requirement. Id. The Court reasoned that the “affirmative authorization seems to indicate that the member must say ‘yes,’ instead of failing to say ‘no.’” Id.

The Washington Supreme Court applied United States Supreme Court precedent and concluded that the burden is on objecting employees to make their objection known when the union uses shop fees for political activities. Id. at 359. “An employee who is given a simple and convenient method of registering dissent has not been compelled to support a political cause and has not suffered a violation of his or her First Amendment rights.” Id. The Court ruled that § 760 impermissibly shifts to the union the burden of protecting nonmembers' rights at significant expense, negatively impacting a union's ability to assert its collective political voice. Id. Finally, § 760 creates an “opt-in” requirement that unconstitutionally presumes the dissent of nonmembers. Id. at 360-363.

From this decision Davenport and Washington appealed to the United States Supreme Court.


Petitioner's Argument

Washington's argument is grounded on the contention that the right of a nonmember to dissent from a union's political activities, as construed under Abood v. Detroit Bd. Of Educ., constitutes the minimum First Amendment protection provided to non-union members. Brief for the Petitioner at 12-13 (citing Abood, 431 U.S. 209 (1977)). Thus, the State of Washington is free to afford nonmembers heightened First Amendment protection. Id. Washington lays out this argument with three contentions:

1. The WEA Has No Constitutional Right to Use Shop Fees to Influence Elections

In Lincoln Federal Labor Union 19219 v. Northwestern Iron & Metal Co., the Court established that unions do not have a First Amendment right to compel nonmembers to join the union or to pay fees. Brief for the Petitioner at 22 (citing Lincoln Federal, 335 U.S. 525 (1949)). Therefore, WEA's authority to collect shop fees is based solely on statute. Contrary to the logic of this principle, the Washington Supreme Court incorrectly applied U.S. Supreme Court precedent when it concluded that a union has a First Amendment right to use shop fees for political purposes. Brief for the Petitioner at 23 (citing International Association of Machinists v. Street, 367 U.S. 740 (1961); Abood, 431 U.S. 209 (1977); Hudson, 475 U.S. 192 (1986); Ellis v. Brotherhood of Railway, Airline & Steamship Clerks, 466 U.S. 435 (1984)). Washington argues that the relevant precedents ground the union's authority to use shop fees for political purposes in state statutes and not in the First Amendment. Id. Furthermore, in Hudson the U.S. Supreme Court concluded that in the face of a state statute prohibiting use of shop fees for political purposes, a union had no right to use shop fees for political purposes at all. Id. In sum, the Washington Supreme Court concluded that a union has a First Amendment right to spend shop fees for political purposes, despite the fact that authority to collect shop fees is derived solely from statute.

Washington further argues that the requirement that a nonmember object does not confer a First Amendment right on the union to use shop fees for political purposes. Id. at 28. To Washington's thinking, the Washington Supreme Court came to a contrary conclusion because it again misconstrued the principles laid out in Abood and HudsonId. at 29. Abood and Hudson stand solely for the principle that “in the face of a statute authorizing use of shop fees for political purposes,” nonmembers are required to object in order to claim First Amendment protection, and dissent is not to be presumed. Id. Requiring nonmembers to object to the use of their fees for ideological purposes, where a statute authorizes such use, does not support the notion that a union has a First Amendment right to use shop fees for political purposes unless the nonmember objects. Id. Again the union's authority comes exlusively from statutes.

2. § 760 Does Not Violate the First Amendment Rights of Nonmembers or Unions

Washington's § 760 provides protection for nonmembers above the standard established in AboodId. at 33. In Keller v. State Bar of California the Supreme Court stated that “Hudson … outlined a minimum set of procedures by which a union in an agency-shop relationship could meet this requirement under Abood.” Id. at 33 (citing Keller, 496 U.S. 1, 17 (1990)). Provided that states meet this minimum requirement, under principles of Federalism states can utilize different procedures and confer different levels of protection to nonmembers. Id. at 33-34. Washington has acted within its authority in choosing to confer to nonmembers the right not to speak or express their political views. The Court in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston emphasized the importance of this right and stated that “one important manifestation of the principle of free speech is that one who chooses to speak may also decided ‘what not to say.’” Id. at 34 (citing Hurley, 515 U.S. 557, 573 (1995)). In stark contrast, an opt-out procedure negates a nonmember's right to remain silent with regard to his or her political views.

Washington further argues that the additional protection that § 760 provides to nonmembers does not violate WEA's First Amendment rights. Id. at 35. As discussed above, Washington maintains that the union has no First Amendment rights with regard to shop fees. Id. at 36. The WEA is allowed to collect mandatory shop fees in the face of the nonmember's First Amendment interest only because the union's collective bargaining representational activities justify the collection. Id.

3. § 760 is Consistent with Federal Campaign Laws Upheld by the Court

Washington contends that the Supreme Court has never considered an opt-in requirement as it relates to compelling nonmembers to support a union's political speech. The Court did, however uphold the opt-in requirement of the Federal Election Campaign Act of 1971 in Federal Election Commission v. National Right to Work CommitteeId. at 42 (citing NRWC, 459 U.S. 197 (1982)). This Act, which also applies to labor unions, made it unlawful for any corporation to make a contribution or expenditure in connection with certain federal elections unless such contributions were drawn from a separate fund. Id. By requiring that contributions come from a separate fund, the federal law established an opt-in requirement which the Court subsequently upheld. Id.

Respondent's Argument

The WEA's primary argument is that § 760 “cuts deeply and discriminatorily” into a union's First Amendment rights by prohibiting a union's ability to finance political activities from a union's general fund made up primarily from of its members' dues and only secondarily from shop fees. Brief in Opposition at 9. The WEA argues that § 760 “would silence the political advocacy of union's like the WEA that finance their advocacy out of general funds that consist overwhelmingly of members' due fees by creating the “insurmountable … hurdle[],” of securing the affirmative consent … of all … individuals who pay… [shop fees].” Id.

1. § 760 Requires Strict Scrutiny Review

The WEA contends that the Washington Supreme Court appropriately applied a strict scrutiny review of § 760. Id. at 10. In support of this position WEA cites Randal v. Sorrell and First National Bank v. Bellotti which stand for the proposition that restrictions on a group's First Amendment right to use general funds for political activities are constitutional only if justified by a compelling government interest and if the restriction is narrowly tailored to protect such interests. Id. at 10 (citing Randal, 126 S. Ct. 2479, 2487-89 (2006); Bellotti, 435 U.S. 765 (1978)).

2. § 760 Restricts WEA's First Amendment Rights Without a Justified Compelling Interest

The WEA concurs with the Washington Supreme Court's rejection of Washington's contention that “§ 760 has no impact on the First Amendment rights of [union] members” and their “ability to assert their collective voice.” Id. In support of this position the WEA cites FEC v. Massachusetts Citizens for Life, Inc. (479 U.S. 238 (1986)) where the Supreme Court observed that “[c]ampaign finance legislation can create insurmountable organizational and financial hurdles for organizations attempting to engage in political speech, rendering the legislation unconstitutional.” Id.

3. Washington's Only Interest is the First Amendment Right of Nonmembers

The WEA further argues that such a restriction on its First Amendment speech rights must be justified by a compelling governmental interest. Id. The WEA contends that the interest asserted by the government was the First Amendment rights of nonmembers. Id. The speech rights of that group should not trump the speech rights of the union, the WEA argues, especially where that group is already protected sufficiently by the Hudson process. Id. Since the Hudson process is less restrictive on the union's First Amendment rights and provides adequate protection to nonmembers, § 760 cannot be said to be narrowly tailored to protect Washington's interest and is thus unconstitutional. Id. at 10-11.


Union membership nationwide among wage and salary workers is only about 60% of what it was 22 years ago when the Bureau of Labor Statistics began its current method of tabulating such statistics. Department of Labor, Bureau of Labor Statistics, Union Members Survey 2005. Education is a field which enjoys among the very highest unionization rates. Id. The roles of unions in collective bargaining, which benefits all members of the profession and not just the union members, justifies the collection of “shop fees” from nonmembers to support the union's activities toward the common good of all in the profession. See Brief for the Petitioner at 36. In a climate of decreased union membership and changing cultural attitudes toward unions, how may legislatures balance the rights of nonmembers to abstain from funding a union's political speech against the rights of unions to engage in such speech efficiently and without unconstitutional regulation?

In Hudson, the Supreme Court ruled that a non-union member must be allowed to “opt-out” from the use of mandatory “shop fees” by a union for political activities. Brief of the American Legislative Exchange Council as Amicus Curiae in Support of Petitioner at 2-3 [hereinafter Brief of the Legislative Exchange] (citing Hudson, 475 U.S. 192 (1986). But is a nonmember's “opt-out” right the minimum or maximum protection afforded to such nonmembers under the First Amendment?

If a nonmember's “opt-out” right constitutes the First Amendment maximum in order to prevent an undue burden on the unions themselves, the “opt-in” procedure mandated by § 760 would contravene the Constitution. Id. However, if such a right is only the minimum protection afforded to nonmembers by the Constitution, a state would be free to provide a nonmember the heightened “opt-in” protection afforded under § 760 so long as that protection did not unduly interfere with the union's ability to engage in political speech. Id.Amicus Curiae Brief of Mountain States Legal Foundation in Support of Petitioner at 3-4; Brief of Amicus Curiae Campaign Legal Center in Support of Petitioners at 4; Brief of the States of Colorado, Alabama, Idaho, Ohio, Utah, and Virginia as Amici Curiae In Support Of Petitioner at 5; Brief for the United States as Amicus Curiae Supporting Petitioners at 8 [hereinafter Brief for the United States].

If the Court strikes down § 760 by upholding the Washington Supreme Court's ruling, as long as the labor union provides for an “opt-out” option, such as a Hudson Packet, and then honors a nonmember's exercise of that option, the union is free to use shop fees in pursuit of political goals. Such a ruling would presume that a labor union has a protected expressive free association right with nonmembers who have conspicuously declined to join the union. Brief of Amici Curiae the Cato Institute, Reason Foundation, and the Center for Individual Freedom in Support of Petitioners at 6 [hereinafter Brief of the Cato Institute]. While a protective right of expressive association has been found between a union and its members, the Court would extend a similar right of association between a union and nonmembers. Brief of the Cato Institute at 6.

Constitutional justification also requires rejection of “presumed dissent” by the employees who have conspicuously declined to join the union. Brief for Petitioner at 14-15. The Supreme Court has held that dissent from a union's political activities is not to be presumed with regard to voluntary union members. (International Association of Machinists v. Street, 367 U.S. 740, 744 (1961)). The decision here will determine whether the rejection of “presumed dissent” also applies to nonmembers. If the Court disapproves of § 760's “presumed dissent” in favor of the express dissent implicit in the Hudson procedure, nonmembers wishing to distance themselves from the unions political activities will not be able to do so through mere silence. See Brief of Amicus Curiae Mackinac Center for Public Policy Supporting Petitioners at 2.

If the Court upholds § 760 and requires the WEA to receive the express consent of each nonmember before using his or her respective “shop fees” for political purposes, the WEA must bear the additional administrative cost of obtaining such consent from approving nonmembers. The WEA argues that the procedures required to obtain the express consent of each nonmember would be “extremely costly and would have significant impact on the union's political activities.” WEA, 130 P.3d 360. Washington responds that the cost of obtaining consent would be modest, and that § 760 would be satisfied simply by rewording the Hudson packet, already sent to nonmembers, to request consent rather than inviting dissent. Brief for Petitioner at 16.


The Supreme Court's decision will determine the balance of First Amendment protection granted to a labor union relative to the protection afforded to dissenting nonmembers forced to pay shop fees. Washington contends that the WEA does not have a constitutional right to use shop fees to influence political elections. Therefore, because § 760 prohibits the union's use of shop fees without first receiving affirmative consent from those who pay the fees, the statute does not violate the WEA's First Amendment rights. The WEA counters that § 760 infringes upon its First Amendment right to finance political activity from a general fund which is made up primarily of union dues. The WEA also contends that § 760 is not narrowly drawn and is thus unconstitutional when held to the appropriate strict standard of review. The Supreme Court's decision may significantly impact a labor union's cost of political advocacy and could  effect the way non-union members must register their dissent from the political views and activities of the unions they increasingly choose not to join.Written by: 

Clinton Becker

Samantha Kim