2008 IN-BRIEF

November 03, 2008

Analysis of Ysursa v. PEA argument

by Michael Reitz

Is it constitutional for states to prohibit school boards from collecting political contributions for public employee unions? The U.S. Supreme Court reviewed this question yesterday. The Idaho Voluntary Contributions Act banned the collection of political contributions through government payroll systems, and several unions challenged the law, saying it violates their free speech rights. (Click here for background about the case and EFF’s amicus brief.)

Idaho Deputy Attorney General Clay Smith, arguing yesterday in support of the law, said that if the State can properly regulate its own payroll systems, as the unions conceded, then it could certainly regulate the payroll systems of local governments, which are merely subdivisions of the State.

Several justices questioned Idaho’s line of argument. While the State expressed the desire to stay out of political questions, Justice Stevens questioned whether there was a partisan motivation behind the law. “The purpose of the statute is perfectly clear…. [T]here’s no evidence whatsoever that it serves the purpose that everybody is talking about.”

In the case briefs, the State of Idaho and other supporters advanced two lines of analysis for finding the law constitutional. Justice Kennedy expressed doubt about both.

I’ve been looking for ways to examine this case. The public forum doesn’t really work for me. Subsidy doesn’t really work for me. It seems to me to be an unconstitutional-condition case. At least that’s the argument. ... That doesn’t mean you necessarily can’t prevail.

Justice Ginsburg asked whether the law regulated any group other than unions.

But does it get at any speech other than union speech? I mean you say, yes, it is content-based, but it’s viewpoint neutral. But it seems that what is banned by the statute is union speech. Is any other organization affected? Does the ban affect any other organization? Isn’t it simply union speech that’s at stake?

Justice Souter zeroed in on a different problem.

[A]s I understand your argument, the – the local governments are creatures of the State. Their powers are the powers that the State gives them by statute, as – as you were pointing out.

The same thing is true for corporations. Corporations are creatures of the State. They have the powers, and only the powers, that the State gives to them. . . . And it seems to me that that’s a problem for you….”

Justice Scalia pointed out, as we had argued in our amicus brief, the unique distinctions unions enjoy.

[I]t doesn’t seem to be terribly discriminatory if indeed the only organizations in the State that are given the right, whether by Federal or State law, to deduct, private organizations, given the right to deduct from the salary a municipal or private employer pays. It doesn’t seem to me particularly discriminatory to say that, moreover, in making those deductions, no part of it will be given for political activities. I mean you’re only addressing a narrow class, but it’s a narrow class that has a special benefit.

Jeremiah Collins, arguing for the Pocatello Education Association, argued that the statute, by banning political deductions, regulates a form of political speech, and therefore must pass a stricter standard of scrutiny to survive.

Justice Breyer said he struggled with this argument, “not for lack of trying.” 

And the thing I don’t understand it about is it seems to me government engages in thousands of different kinds of activity, and there isn’t some special test. When they say that in the jury room, the jury room is there for juries; it’s not to show movies of Steven Spielberg. And there isn’t some special test when you say the purpose of the biology class is to teach biology, and we don’t want people coming in here teaching some other thing.

Earlier in this litigation, the unions had conceded that the State could regulate political deductions for its own employees because it subsidizes and controls its own payroll system. But the unions argued that the State could not extend similar regulations upon local government entities.

Justice Ginsburg questioned this distinction.

Isn’t there – isn’t there some State tax money that goes to fund local units? I mean, you say here there are State taxpayers’ funds involved; therefore the State doesn’t have to pay for what it doesn’t want to buy. But are there State funds that fund local government entities?

Justice Souter also criticized the distinction between state and local funds.

[W]hether we are talking about the State taxing in order to perform functions at the State level or whether the State is authorizing taxation for functions for functions to be performed at the local level – in all of these instances, the State is in the position to say not that it is sort of our money, but to say it is public money. And our decision is that public money will not be used to – by a public entity to underwrite political activity. And why isn’t the State in exactly the same position in making that judgment, whether it’s talking about money that goes directly into the State coffer or public tax money that happens to be going into a – a town coffer?

During his argument, the union attorney made one claim that raised some eyebrows. “When [the statute] says to local governments, who in the state of nature can allow whatever they want in the way of speech, when it says that there we will not allow these kinds of deductions, it's blocking speech that would take place but for the government intervention.”

Justice Kennedy responded dryly, “I’ll read Rousseau again, but I didn’t think Pocatello, Idaho, was part of the state of nature.”

This argument could have been a slip of the tongue, except that throughout this litigation, the unions have argued that they are essentially entitled to collect money from government payroll systems, and that the statute is a violation of this right. Mr. Collin’s “state of nature” reference reveals much about the unions’ perception of their entitlements.

It will be several months before the Supreme Court rules on this case. Predicting Supreme Court rulings based on oral arguments is an unscientific business, but after reviewing the transcripts I could see the Court upholding the Idaho law with a slim majority (5-4 or maybe 6-3).


Contact: Michael Reitz | General Counsel | (360) 956-3482

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