The state is not obligated to use as much compulsion as is constitutionally permissible in order to allow the union to maximize the amount of money it can receive from nonmembers. The state, which does not have to grant a union exclusive bargaining power, may enact a statute that prevents nonmembers’ fees from being used for political causes without their consent.

The Washington Supreme Court held that Wash. Rev. Code § 42.17.760 was unconstitutional because it impinged upon the First Amendment rights of union members. It suggested that since this Court had held that dissent is not to be presumed, it is not permissible for a state to enact a statute requiring a nonmember to affirmatively authorize the use of his or her fees for political purposes. The Washington Supreme Court indicated that some nonmembers may not disagree with the political causes the union supports. Further, the court ruled that § 42.17.760 imposes a significant administrative cost on the union.

The administrative burden argument was summarily rejected by the Sixth Circuit in Michigan State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir. 1997). In that case, the Sixth Circuit upheld an affirmative authorization requirement for members and nonmembers alike. The Sixth Circuit indicated that the administrative burden argument presented by the union was without merit:

While plaintiffs and amicus curiae, the Michigan Education Association, suggest that the administrative burden of the annual consent provision will be crushing, they offer no support for that claim. An annual mailing to a union’s contributing members, asking them to check a box and to return the notice to the union, would seem to suffice under the statute. Labor unions surely maintain some sort of records on their members already, and requiring the unions to make space in their files or databases for the inclusion of one more piece of information seems minimal, certainly a burden insufficient to rise to the level of a constitutional violation. Similarly, the suggestion that asking people to check a box once a year unduly interferes with the speech rights of those contributors borders on the frivolous.

Id. at 1253.

An interesting analogy can be drawn between Washington’s Initiative 134 and Proposition 209, the 1996 California initiative that eliminated race and gender preferences. Both generally dealt with long-standing controversial issues. I-134, in part, concerned labor law, while Proposition 209, in part, concerned race relations. In both labor law and race relations, the Supreme Court had held that a state had a sufficient interest to overcome an individual’s constitutional rights. The quest for labor peace was a sufficient interest to justify collective bargaining, which impinges on an individual’s First Amendment right not to associate with a union. Further, the requirement that a nonmember pay an agency fee makes some nonmembers support political causes that they disagree with, which impinges on their First Amendment free-speech and silence rights. This Court has held that a state’s interest in "diversity" is sufficient to overcome an individual’s right to equal treatment in the college admissions process. Grutter v. Bollinger, 539 U.S. 306 (2003).

Thus, in both instances there are state interests that can overcome core constitutional protections. But in both instances, there is no requirement that the state choose to enact those state interests. A state does not have to allow a union to become an exclusive bargaining agent, nor does it have to allow the union to negotiate a security agreement that requires nonmembers to pay an agency fee. In the race and gender context, there is no requirement that a university consider race and gender in college admissions. Just because a state acts on an interest that allows an impingement on an individual’s constitutional rights, the state need not act on that interest to the full extent of its constitutional power.

In Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), the Ninth Circuit was faced with a constitutional challenge to Proposition 209. The plaintiffs, comprised of groups claiming to represent the interests of women and minorities, argued that the state had to come up with a compelling interest before it could prevent them from receiving preferential treatment under the law. The Ninth Circuit rejected that argument:

To hold that a democratically enacted affirmative action program is constitutionally permissible because the people have demonstrated a compelling state interest is hardly to hold that the program is constitutionally required. The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits.

Id. at 709. Therefore, California citizens acted properly in enacting a constitutional amendment that prevented the use of a state interest – diversity – that the Supreme Court had approved of.

Here, Washington citizens did not entirely prevent the use of collection of an agency fee; rather, they put a condition on it. That condition is that the union must seek the affirmative authorization of a nonmember before collecting and using an agency fee for political purposes.

In Abood, this Court indicated that an agency shop might be the strictest type of union security arrangement that is constitutionally permissible. Agency fees also raise serious constitutional issues. All § 760 does is make it less likely that a nonmember’s constitutional rights will be infringed upon. By holding that § 760 is unconstitutional, the Washington Supreme Court in essence held that the First Amendment requires what it barely allows. This Court should reject this holding.