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Washington Case May Benefit Free Speech for Colorado Workers

By Benjamin DeGrow

State courts say that Colorado teachers unions do not have to follow a new rule that empowers members to choose whether to fund union political causes. A favorable decision from the U.S. Supreme Court in the coming session could aid in restoring union members’ rights.

In August, the Colorado Education Association and the American Federation of Teachers filed a complaint against Secretary of State Gigi Dennis for issuing the campaign rule. Denver District Court Judge John McMullen enjoined the rule from applying to the teachers unions. On Thursday the Colorado Court of Appeals upheld the temporary injunction.

On Monday, pending further appeal, the teachers unions again will be able to spend members’ dues money on politics without their permission.

Union officials claimed Dennis denied them enough time to get members’ permission to spend their money in the 2006 election. A CEA official testified in court that the union is holding $389,000 of member dues aside, waiting to transfer the money to a small-donor committee that can fund candidates.

CEA-affiliated committees already have reported more than $620,000 this year in direct political expenditures. Roughly $185,000 has gone directly to political parties or candidates. The rest has gone to 527 groups, including $250,000 transferred to CEA’s own “Colorado Campaign for Children and Public Schools.”

527 groups are tax-exempt organizations that can advocate for or against ballot issues, and can educate voters about candidates’ records. They cannot coordinate with any candidate campaign, nor can they expressly urge a vote for or against a candidate.

The Colorado Court of Appeals said there is a “reasonable probability” the secretary of state exceeded her authority in issuing the rule. Citing federal case law, the court also found it fair to assume a member supports his union’s political causes: “The burden is on the employee to make his or her objection known.”

Nevertheless, the nation’s highest court soon could restore weight to a dissenter’s First Amendment rights.

Earlier this week the U.S. Supreme Court decided to hear Washington v. Washington Education Association and Davenport v. Washington Education Association. A key question these cases hold is whether a state can enforce protection of its citizens’ rights to free political speech, even if a labor union finds the protection to be inconvenient.

The Washington Education Association represents and collects dues from all public school teachers in Washington State. Teachers who do not wish to belong to WEA still must pay agency fees for union representation.

In 1992, 72 percent of Washington voters approved a law requiring union officials to get workers’ “affirmative authorization” before taking political contributions from their paychecks. Defying the law, WEA bosses continued to spend agency fee money on politics.

In 2000 the Washington state attorney general’s office filed suit against WEA. The next year, several teachers brought class-action lawsuits against the union in defense of their rights. WEA officials acknowledged before the court that they had committed “multiple violations.”

Despite an initial decision favoring individual rights, a March 2006 ruling by the Washington Supreme Court agreed with the appeals court to toss out the 1992 law protecting workers’ paychecks. The judicial majority was persuaded by WEA’s argument that the law was too burdensome, trumping any First Amendment claims from aggrieved teachers.

In Colorado, teachers are not required to join or to pay fees to a union as a condition of employment. Teachers who do join can request a refund of the political contribution. Out of step with the rest of the state, five school district collective bargaining agreements require teachers to opt out each year of paying full union dues.

Beyond public education, some Colorado workers are required to belong to a union and to fund its political agenda in order to keep their jobs. Political refunds are available in many cases, if members are aware of the deadlines and procedures and are willing to withstand some of the pressures to ask for their money back.

Union members deserve to be asked whether their earnings should be spent on politics. If the U.S. Supreme Court decides to restore Washington’s 1992 law, Colorado could become a safe haven for this basic right and common courtesy.

This article originally appeared in the Rocky Mountain News on September 30, 2006.