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July 20, 1978


The opinion of the court was delivered by: GASCH


I. Background.

 This suit is brought under the Federal Election Campaign Act of 1971, As amended, 2 U.S.C. §§ 431-455 (1976). Plaintiff, the Federal Election Commission (FEC), is charged with the responsibility of enforcing the Act. *fn1" Pursuant to that responsibility, it contends that defendant National Education Association (NEA) and seventeen of its state affiliates *fn2" have violated the Act by using an illegal system for collecting contributions to finance its political activities.

 The NEA is an organization whose members are professional educators employed by school systems throughout the United States. The NEA and its affiliates have a "unified membership," meaning that a person must belong to the local, state, and national associations in order to belong to any one of them. Membership is voluntary, however, so one need not become a member in order to maintain employment.

 The National Education Association Political Action Committee (NEA-PAC) is a separate organization created by the NEA in 1972 to receive contributions from NEA members and to make expenditures in connection with federal elections. The amount of each member's desired contribution is set at $ 1.00 annually, and it is paid at the same time as the annual membership dues are paid.

 Most NEA members choose to pay their annual dues in monthly installments using automatic payroll deduction. In 1973 the NEA's Representative Assembly, consisting of approximately 10,000 elected delegates, voted to adopt the payroll deduction method as the most efficient means of funding NEA-PAC as well. The method of implementation chosen, and the subject of this controversy, is the "reverse check-off." Under that system, when a teacher signs his NEA membership application, he thereby automatically agrees not only to a deduction of dues, but also to a deduction of the additional $ 1.00 political contribution. If the NEA member does not want to make that dollar contribution, he must submit a separate written request for a refund rather than being able to disallow its deduction in the first place.

 In addition to the payroll deduction method, some local affiliates also allowed dues to be paid by cash or check. NEA members who use either of these latter two methods apparently do not have to make the dollar contribution and then seek a refund.

 The FEC has received complaints concerning use of the reverse check-off procedure, generally alleging that the system forced individuals to make political contributions, or that it caused contributions to be made unknowingly, or that the refund system was too cumbersome to be viable. After investigation, the FEC notified the NEA in March, 1977, that it found reasonable cause to believe that reverse check-off violated section 441b(b)(3) (A) of the statute, which prohibits financing political funds by "dues, fees, or other moneys required as a condition of membership in a labor organization." *fn3"

 The parties entered into conciliation efforts aimed at resolving this dispute, and from the NEA's perspective, aimed at securing approval of the future use of reverse check-off. These efforts failed, however. In the interim, the FEC issued its new regulations, one of which provides that fees "paid as a condition of membership" remain so "even though they are refundable." *fn4"

 The NEA then requested an advisory opinion from the FEC, presenting to it variations of the reverse check-off and seeking approval of them. *fn5" While that request was pending, the FEC filed this suit seeking a ruling that defendants' use of reverse check-off violates the Act, an order requiring the return of all funds collected pursuant to that method, *fn6" an injunction against future use of reverse check-off, and assessment of a civil penalty. *fn7" Defendants have counterclaimed, essentially asking that the reverse check-off or the variations of it submitted to the FEC for advisory opinion be declared legal under the Act, or if not legal, that the Act and its regulations be declared unconstitutional. Subsequently, the FEC issued its advisory opinion rejecting all of defendants' proposals but one, and rendering no opinion as to it.

 Now before the Court are the parties' cross-motions for summary judgment. For the reasons set forth below, it is the Court's conclusion that plaintiff's motion should be granted and defendants' denied.

 II. Plaintiff's Motion for Summary Judgment.

 The FEC's motion for summary judgment rests upon alternative arguments: first, that reverse check-off is per se illegal because it inherently results in involuntary contributions; secondly, that even if not a per se violation as implemented by defendants, it is illegal either because it does not inform the members of the refund right or because the refund mechanism is so cumbersome as to make it ineffective. The principal legal pillars supporting plaintiff's arguments are the Supreme Court's decision in Pipefitters Local 562 v. United States, 407 U.S. 385, 92 S. Ct. 2247, 33 L. Ed. 2d 11 (1972), and this circuit's decision in United States v. Boyle, 157 U.S.App.D.C. 166, 482 F.2d 755, Cert. denied, 414 U.S. 1076, 94 S. Ct. 593, 38 L. Ed. 2d 483 (1973).

 Pipefitters involved a conviction under 18 U.S.C. § 610 (1970), which made it illegal for "any labor organization to make a contribution or expenditure in connection with (a federal election)." After the Supreme Court had heard oral argument, the Federal Election Campaign Act of 1971 was passed, amending section 610 by adding the language now contained in section 441b(b)(3)(A), the provision at issue in this case. *fn8" Insofar as is pertinent here, the Court held that the Act merely codified existing law and further, that not all political contributions by labor organizations were prohibited, only those derived from funds that "were actually or effectively required for employment or union membership." Id. at 399, 439, 92 S. Ct. at 2256, 2276.

 The funds at issue in Pipefitters were raised by contributions and kept strictly segregated from the union's general treasury, which was financed by assessed dues. Id. at 414, 92 S. Ct. at 2264. The Court therefore concluded that reversible error had occurred because the jury was not instructed to determine whether the contributions to that segregated fund were voluntary or whether they were involuntary because required or effectively assessed. Id. at 435-38, 92 S. Ct. at 2274, 2275. To be voluntary the contribution must result from a "knowing free-choice," which means that the solicitation must be

conducted under circumstances plainly indicating donations are for political purposes and that those solicited may decline to contribute without loss of job, union membership, or other reprisal.

 Id. at 414, 92 S. Ct. at 2264. The purpose of such a standard, the Court said, is to protect the dissenting union member. Id. at 414-15, 92 S. Ct. at 2274.

 In United States v. Boyle, supra, the Court of Appeals for this circuit also addressed a conviction under section 610, this time after that section had been amended to provide as it now does in section 441b(b)(3)(A). Unlike in Pipefitters, however, the political contributions at issue in Boyle had been made from the union's general treasury financed by dues and not from a segregated fund financed by donations. Therefore, contrary to the defendant's contention, the Court of Appeals held that the trial court did not err in declining to instruct the jury concerning the voluntary nature of the contributed funds. 157 U.S.App.D.C. at 173, 482 F.2d at 762.

 The Court of Appeals then addressed Boyle's attack on the constitutionality of section 610. *fn9" He acknowledged that a purpose of the section was

to assure that a dissenting union member (was) not Forced to contribute, in the form of mandatory dues and assessments, to support political views with which he disagrees.

 Id. at 174, 482 F.2d at 763 (emphasis in original). He argued, however, that this purpose could be achieved in a manner less restrictive of the freedom of speech of the majority of union members. Specifically, Boyle argued that Congress could have sufficiently protected a dissenting union member's rights by approving the system used in Great Britain, which "permits the refunding of a proportionate amount of a member's dues if the dissenter gives notice of his disagreement." Id. The Court of Appeals rejected that alternative, however, stating that under the Supreme Court's decision in Pipefitters, union members must affirmatively approve of a contribution "by assenting to have a deduction made from the member's pay check." Id. at 175, 482 F.2d at 764; See R. Cohan, "Of Politics, Pipefitters, and Section 610: Union Political Contributions in Modern Context," 51 Texas L.Rev. 936, 988 (1973) (Pipefitters differs from the British system in not requiring dissenting member "to be vocal").

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