March 22, 2007

EFF Testimony: House Bill 2079
Transcript

Audio Link (Courtesy of TVW)
EFF testimony runs from 2:04:10 to 2:09:40

Thank you for the opportunity to testify. My name is Michael Reitz and I am an attorney with the Evergreen Freedom Foundation. I urge you to reject House Bill 2079.

Unions have a First Amendment right to engage in political activity on behalf of their members. In fact, nothing in RCW 42.17.760 prohibits labor organizations from spending membership funds on political activity. The law relates to nonmembers who have deliberately resigned from the union and don’t want their fees used for political activity.

House Bill 2079 is premature, unnecessary, and potentially unconstitutional.

It is premature to amend Section 760 when the U.S. Supreme Court is considering the constitutionality of the statute. The law currently has no impact on unions as the state Supreme Court declared it unconstitutional last year. If the U.S. Supreme Court upholds the law and mandates “affirmative authorization” for spending agency fees on political activity, HB 2079 could be in conflict. The proper course of action would be to delay legislative amendment until after a Supreme Court ruling.

The bill is also unnecessary. The Thurston County Superior Court has already ruled on the interpretation of RCW 42.17.760 and provided detailed instructions on how to comply.

I suggest that this bill is not intended to clarify the law, but to subvert it. HB 2079 erodes the protections of the law by essentially eliminating the requirement to get permission. If a union’s income from nonmember agency fee payers is 10 percent of its total budget, the union could conceivably spend 90 percent of its funds on political activity before triggering the requirement to obtain permission from agency fee payers. The practical effect of HB 2079 is that unions will rarely, if ever, be required to seek authorization from nonmembers before using their payments for political activity.

The bill also presents constitutional concerns. The U.S. Supreme Court has long acknowledged that charging workers even for collective bargaining has an impact on their First Amendment rights. The Court has provided us with several precepts: no one can be forced to pay for a union’s ideological expenditures, and the proper remedy is to reduce nonmember payments by the percentage of union expenditures that are unrelated to bargaining.

The U.S. Supreme Court rejected the accounting gimmick proposed in HB 2079, in International Association of Machinists v. Street (1961). The mechanism would “shift a disproportionate share of the costs of collective bargaining to the dissenter and have the same effect of applying his money to support such political activities.”

HB 2079 could even jeopardize a portion of the refund available to workers under Chicago Teachers Union v. Hudson (1986). Objecting workers are entitled to a refund the union’s non-bargaining expenditures. However, by arbitrarily stating that agency fees are not spent on politics, HB 2079 could deny nonmembers a refund of the union’s political spending.

Sponsors of HB 2079 have tried to justify the bill by saying that workers ultimately have the Hudson refund available to them. Unfortunately, obtaining the Hudson refund is anything but simple. For example, the Hudson notice for the Washington Education Association 2004-05 is nearly an inch thick, filled with detailed financial information and legal declarations. No form is provided for the teacher to obtain a refund. Instead, the teacher has to write a letter with ten points of information, and this letter must be sent within a specific window of time, at a busy point in the school year.

This bill creates a multitude of other problems. Short of mandating an annual audit of union books by the Public Disclosure Commission or some other government agency, compliance will be difficult to verify. There are also problems with accounting given a labor organization’s unified dues structure. Clearly the law applies to local, regional, and state affiliates, but what about the national or international branches that also collect dues from workers?

Finally, HB 2079 contains an emergency clause, thereby insulating the bill from a voter’s referendum. Preserving a union’s coerced political funding is not a state emergency. RCW 42.17.760 was enacted by Initiative 134, approved by 72 percent of voters in 1992, and voters deserve the opportunity to review the legislature’s amendment of this law.

House Bill 2079 circumvents a pending U.S. Supreme Court ruling, ignores constitutional precedent, thwarts the will of the people, and violates the First Amendment rights of workers. I urge you to reject the bill.

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