Nos.

05-1589, 05-1657

IN THE

Supreme Court of the United States

————

GARY DAVENPORT, et al.,

Petitioners,
v.
WASHINGTON EDUCATION ASSOCIATION,
Respondent.
————
WASHINGTON,
Petitioner,
v.
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 98101 LAURENCE GOLD
(206) 447-9186 BREDHOFF & KAISER, P.L.L.C.
805 Fifteenth Street, N.W.
HARRIET STRASBERG
Suite 1000
3136 Maringo SE
Washington, DC 20005
Olympia, WA 98501
(202) 842-2600
(360) 754-0304
Counsel for Respondents

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20001

 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
Page
QUESTION PRESENTED............................................ i
CORPORATE DISCLOSURE STATEMENT ............. ii
TABLE OF AUTHORITIES......................................... iv
STATEMENT ............................................................... 2
ARGUMENT................................................................. 8
CONCLUSION ............................................................. 19

(iii)
 iv
TABLE OF AUTHORITIES
CASES Page
Abood v. Detroit Bd. of Educ., 431 U.S. 209
(1977)................................................................. 3
Buckley v. Valeo, 424 U.S. 1 (1976)...................... 16, 17
Chicago Teachers Union v. Hudson, 475 U.S. 29
1986).................................................................. 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
U.S. 238 (1986) .............................................10, 17, 18
FEC v. National Right to Work Committee, 459
U.S. 197 (1982) ................................................. 17, 18
First National Bank v. Bellotti, 435 U.S. 765
(1978).............................................................10, 16, 18
Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507
(1991)................................................................. 3
Lincoln Federal Labor Union 19129 v. North-
western Iron & Metal Co., 335 U.S. 525
(1949)................................................................. 13
Michigan State AFL-CIO v. Miller, 103 F.3d
1240 (6th Cir. 1997) .......................................... 14
Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377
(2000)................................................................. 18
Randall v. Sorrell, 126 S. Ct. 2479 (2006) ............ 10
Smith v. Arkansas State Highway Employees
Local 1315, 441 U.S. 463 (1979) ...................... 15
South Carolina Education Association v.
Campbell, 883 F.2d 1251 (4th Cir. 1989).......... 13
State ex rel. Evergreen Freedom Found. v.
Washington Educ. Ass'n, 999 P.2d 602 (Wash.
2000).................................................................. 9, 15
 v
TABLE OF AUTHORITIES—Continued
Page
State ex rel. Washington State Public Disclosure
Commission v. Washington Education Asso-
ciation, 130 P.3d 352 (Wash. 2006) .................. 1
United States v. Boyle, 482 F.2d 755 (D.C. Cir.
1973).................................................................. 15
STATUTES
2 U.S.C. § 441b ..................................................... 16
2 U.S.C. § 441b(a) ................................................. 18
2 U.S.C. § 441b(b)(2)(A)....................................... 17
2 U.S.C. § 441b(b)(2)(C)....................................... 17
18 U.S.C. § 610 (1970).......................................... 15
Md. Code Ann., Educ. § 6-504(d)(3)(iv)(1) .......... 11
Md. Code Ann., Educ. § 6-504(d)(3)(iv)(2) .......... 11
Mont. Code Ann. § 39-31-402(3).......................... 11
Mont. Code Ann. § 39-32-109(2)(d) ..................... 11
Wash. Rev. Code §§ 28B.52.010 et seq. ............... 2
Wash. Rev. Code § 28B.52.045............................. 3
Wash. Rev. Code § 28B.52.045(2)........................ 3
Wash. Rev. Code §§ 41.56.010 et seq. .................. 2
Wash. Rev. Code § 41.56.120 ............................... 3
Wash. Rev. Code § 41.56.122(1)........................... 3
Wash. Rev. Code § 41.56.080 ............................... 2
Wash. Rev. Code §§ 41.59.010 et seq. .................. 2
Wash. Rev. Code § 41.59.060(2)........................... 3
Wash. Rev. Code § 41.59.090 ............................... 2
Wash. Rev. Code § 41.59.100 ............................... 3
Wash. Rev. Code §§ 41.76.001 et seq. ................. 2
Wash. Rev. Code § 41.76.015 ............................... 2
Wash. Rev. Code § 41.76.040 ............................... 3
Wash. Rev. Code § 41.76.045(2)........................... 3
Wash. Rev. Code § 42.17.020(17)......................... 5
Wash. Rev. Code § 42.17.020(38)......................... 5
 vi
TABLE OF AUTHORITIES—Continued
Page
Wash. Rev. Code §§ 42.17.350 et seq. .................. 5
Wash. Rev. Code § 42.17.680(3)........................... 14, 15
Wash. Rev. Code § 42.17.760 ............................... passim
 IN THE

Supreme Court of the United States

————
Nos. 05-1589, 05-1657
————
GARY DAVENPORT, et al.,
Petitioners,
v.
WASHINGTON EDUCATION ASSOCIATION,
Respondent.
————
WASHINGTON,
Petitioner,
v.
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
Relations Act, Wash. Rev. Code §§ 41.59.010 et seq., and
other statutes governing public employment. 1
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

1
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 seq., while the labor relations of com-
munity college and university faculty members are governed respectively
by Wash. Rev. Code §§ 28B.52.010 et seq. and §§ 41.76.001 et 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. 2 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 v.
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

2
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. 3
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.

3
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-
dates 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 seq.—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. 4 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. 5

4
Except as otherwise noted, appendix citations are to the Appendix
submitted by petitioner in No. 05-1657.
5
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. 115a.
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 at 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 with other funds in the general treasury,
expenditure of any general treasury monies to influence an
election or support a political committee results in use of a
proportionate share of agency fees for such purposes.” Id. 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. Id. at 111a-112a. The court also entered
a permanent injunction requiring WEA in future years to
reduce the fee to be paid by (nonobjecting) 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. Id. 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.” Id. 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 unconstitutional. Pet. App. 48a; see also
Davenport Pet. App. 42a. 6

6
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 all penalties against WEA
should be vacated. Id. 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 appellate decision holding “that ‘42.17
RCW does not imply a private cause of action.’” Davenport Pet. App.
 8
The Washington Supreme Court granted discretionary re-
view and affirmed the judgment of the court of appeals. Pet.
App. 1a. 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 11a, a
feepayer’s “[f]ailure 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. Id. 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

43a-44a (citing Crisman v. Pierce County Fire Prot. Dist. No. 21, 60 P.3d
652 (Wash. Ct. App. 2002)).
 9
courts cited by petitioners. The certiorari petitions should
therefore be denied.
I.
The State of Washington, in common 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. 7 But through Section 760
the State of Washington alone 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 political 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

7
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 ballot
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.” Id. at 30a-31a (emphasis in original). Such “a
restriction on the First Amendment rights of WEA must be
justified by a compelling governmental interest.” Id. at 26a
(emphasis in original). And here “the only interest asserted
is additional protection for nonmembers’ First Amendment
rights.” Id.
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,
“[t]he constitutionally acceptable opt-out alternative . . . re-
veals that protection of dissenters’ rights can be achieved
 11
through means significantly less restrictive of the union’s
associational freedoms than RCW 42.17.760’s opt-in require-
ment.” Id. 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. Id. 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. 8 Section 760 is indeed unique among state and

8
Nowhere in their papers do petitioners identify any 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)(iv)(2); Mont. Code Ann. §§ 39-31-402(3); 39-32-109(2)(d)).
But the Maryland statute (which applies only to noncertificated educa-
tion employees in Baltimore County)—like 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(d)(3)(iv)(1). 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). In 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.
II.
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 760’s 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 rely on Lincoln Federal Labor Union 19129 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 state’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 involve a
statute like § 760, and Miller is inapplicable to this case.
Pet. App. 25a. 9

9
Prior to 2002, Wash. Rev. Code § 42.17.680(3) required that employ-
ees give annual authorization for payroll deductions made to 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 v. 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. § 441b(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. 1
(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. 10
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
U.S. 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.
10
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 question
has no application to the instant 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.
805 Fifteenth Street, N.W.
HARRIET STRASBERG
Suite 1000
3136 Maringo SE
Washington, DC 20005
Olympia, WA 98501
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(360) 754-0304
Counsel for Respondents
August 2006