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Published in Print: April 9, 2008, as Court to Weigh Deductions for Union PACs

Court to Weigh Deductions for Union PACs

At issue is Idaho bar on agencies’ withholding pay for political causes

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An Idaho state law that bars school districts and other local government agencies from making deductions from employees’ paychecks for political causes will be reviewed by the U.S. Supreme Court.

Last week, the court accepted the state’s appeal in Ysursa v. Pocatello Education Association (Case No. 07-869), in which Idaho is defending the federal constitutionality of a provision under its “right to work” laws. The provision, passed in 2003 under a measure known as the Voluntary Contributions Act, has been backed in Idaho and in other states by anti-union groups.

The action is the latest sign of renewed interest on the Supreme Court in legal issues surrounding public-employee unions, such as the rules about representation fees for workers who refuse to join the union. The court upheld a Washington state law last year that requires unions to secure the consent of nonmembers to use their representation fees on political activities. ("High Court Upholds Wash. State Law on Union Fees," June 20, 2007.)

And in February, the court accepted review of a case that will explore whether nonunion public employees may be forced to pay agency fees for the costs of union litigation not directly related to their workplace’s bargaining unit. That case, Locke v. Karass (No. 07-610), will be argued in the court’s next term, as will the newly granted Idaho case.

The Idaho Education Association, its Pocatello affiliate, and several other public-employee unions in the state, which rely on the deductions to help pay for their political action committees, challenged the Idaho law.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled unanimously in October that the provision as applied to local government employers violates the First Amendment free-speech and association rights of the unions.

“This restriction on voluntary political contributions burdens political speech,” the 9th Circuit court said. “The law does not prohibit [the unions] from participating in political activities, but it hampers their ability to do so by making the collection of funds for that purpose more difficult.”

Similar Ruling

In its appeal to the Supreme Court, Idaho said the 9th Circuit “has made a striking and unprecedented incursion into the authority of state legislatures to control the employment practices of political subdivisions.”

“The concern here is with the ability of the Idaho legislature to control payroll practices of local governmental entities,” Clay Smith, the state’s deputy attorney general, said last week in an interview. “We believe the legislature has the reasonable authority to do that without being compromised by the First Amendment.”

The Idaho teachers’ union and the other public-employee unions had urged the high court not to review the case. They noted that the U.S. Court of Appeals for the 10th Circuit, in Denver, had recently made a similar ruling in striking down Utah’s version of the Voluntary Contributions Act, and thus no conflict existed among the federal appeals courts on the issue. ("Latest Round in Utah Battle Goes to Unions," Jan. 23, 2008.)

“In reaching out to ban local governmental entities from allowing their employees to use the local governmental entity’s payroll system to transmit lawful political contributions, Idaho plainly acted as a regulator” of a speech forum, and not as a “proprietor” of one, the unions’ brief said in arguing that the 9th Circuit panel had applied the correct analysis.

Paycheck Precedents

The U.S. Supreme Court has agreed to decide whether states may bar school districts from making payroll deductions for employees’ chosen political causes, such as unions’ political-action funds.

Among the relevant high court cases on private groups’ workplace access to public employees or their paychecks are:

Perry Education Association v. Perry Local Educators’ Association (1983)
The court ruled that giving preferential access to internal mailboxes to the union that had exclusive bargaining rights with the school district did not violate the First Amendment rights of a rival union.

Cornelius v. NAACP Legal Defense and Educational Fund (1985)
The justices said the federal government does not violate the First Amendment when, to avoid the appearance of political favoritism, it limits participation to approved groups in the annual Combined Federal Campaign, in which donations are solicited from federal employees.

Davenport v. Washington Education Association (2007)
The court held that the First Amendment is not violated when a state requires public-employee unions to receive affirmative authorization from a nonunion member before spending that person’s agency fees for election-related purposes.

“In Idaho, more than in many states, the mantra has always been local control,” said John E. Rumel, the general counsel of the 11,000-member IEA. “We felt there was just no good reason for the state to be reaching out to regulate local payroll systems.”

‘Paycheck Protection’

In a friend-of-the-court brief filed in support of Idaho’s appeal, the National Right to Work Legal Defense Foundation and other groups said the 9th and 10th Circuit rulings conflicted with a 1998 ruling by the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, that upheld an Ohio law similar to Idaho’s.

“The 9th Circuit effectively treats public payrolls as akin to a public park in which a union, or any other entity, is entitled to fundraise, notwithstanding a payroll’s primary (perhaps only) use, which is to pay employees,” the right-to-work group’s brief said.

Stefan H. Gleason, a vice president of the Springfield, Va.-based foundation, said the public-employee unions, often led by the politically powerful teachers’ unions, “oppose any infringement whatsoever on their special privileges.”

The right-to-work groups have long sought to get states to adopt various forms of what they call “paycheck protection” measures for workers who do not want to join the unions or who do not want their mandatory representation fees to go for the unions’ political causes.

The anti-union groups have acknowledged that even in states that have adopted such measures, the laws have not been very effective in curbing the influence of unions. Still, the Supreme Court’s recent foray back into this arena has the anti-union forces excited.

“It appears the Supreme Court is more interested in re-examining these cases involving union special privileges,” Mr. Gleason said.

In its decision last year in Davenport v. Washington Education Association, the court unanimously upheld the Washington state authorization requirement for nonunion members’ agency fees to be used for political causes, a provision opposed by the unions.

But in what the unions considered a silver lining, the justices declined the invitation of right-to-work groups to reconsider some of their core precedents on agency fees to make collection from nonmembers more difficult.

Vol. 27, Issue 32, Pages 19-20

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