Labor & Employment Law

Supreme Court tackles political activities payroll deductions

The US Supreme Court granted certiorari March 31 to decide Ysursa, Idaho Secretary of State v. Pocatello Education Association [Details, all briefs]

Formal Question Presented by the cert petition:

"Does the First Amendment to the United States Constitution prohibit a state legislature from removing the authority of state political subdivisions to make payroll deductions for political activities under a statute that is concededly valid as applied to state government employers?"

Background:

An Idaho state statute prohibits local government employers and school employers from making payroll deductions for "political activities," defined as "electoral activities, independent expenditures, or expenditures made to any candidate, political party, political action committee or political issues committee or in support of or against any ballot measure."

The 9th Circuit held that this statute is unconstitutional in that it violates the first amendment rights of the labor unions who represent the employees. The 9th Circuit reasoned that (1) the "restriction on voluntary political contributions" was a burden on political speech in that it would decrease the revenues available to the labor unions to use for political speech; (2) the law is a form of content discrimination; (3) content-based restrictions on political speech are subject to strict scrutiny; (4) the state offered no compelling interest in favor of the law.

The 9th Circuit rejected the state's attempts to have the statute analyzed under two exceptions to the strict-scrutiny standard. (1) Government can refrain from paying for speech with which it disagrees, but the State does not subsidize the payroll systems of local government. (2) Government's ability to regulate speech in a public forum (here defined as the local governments' payroll deduction programs) did not apply because neither the local workplaces nor the local payroll systems are "property of the State of Idaho."

My view: The State of Idaho (Ysursa) will win; the 9th Circuit will be reversed.

The 9th Circuit opinion was amazingly wooden, consisting of a recital and review of past decisions that were designed to resolve very different questions.

The US Supreme Court should view this case as raising a question far different from the questions raised in previous cases.

I expect the majority will hold that the State of Idaho has the power to control the payroll deduction system used by local governments and school districts, and that barring deductions for "political purposes" is a neutral (not discriminatory based on content) regulation that does not need to be justified by a "compelling state interest." They probably will point out that labor unions do not have a first amendment right to have local governments and school districts do the work of collecting political contributions for them.

If Idaho can implement its statute, the labor unions will remain free to collect money for political purposes. They just won't have the assistance of state governments and local school districts.

Full post as published by Ross' Employment Law Blog on March 31, 2008 (boomark / email).