Law & Courts

Justices Weigh Bar on Payroll Deductions for Politics

By Mark Walsh — November 10, 2008 4 min read
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The U.S. Supreme Court last week heard arguments in a case that is the latest challenge to one of the ways teachers’ unions amass their political war chests.

At issue is an Idaho law that prohibits school districts and other local governments from using their payroll systems to let workers voluntarily deduct amounts from their paychecks for political causes, such as for the unions’ political action funds.

The Idaho Education Association, its Pocatello affiliate, and several other public-employee unions in the state challenged the provision of the state’s Voluntary Contributions Act as an infringement of their First Amendment rights of free speech and association. The restriction would “significantly decrease the revenues available” to the state teachers’ union for political activities, its executive director said in earlier proceedings in the case.

The Idaho statute “is a content-based restriction on speech, which is therefore presumptively invalid,” Jeremiah A. Collins, a Washington lawyer representing the unions, said during the Nov. 3 arguments in Ysursa v. Pocatello Education Association (Case No. 07-869).

The law says “the only expenditure you can’t make through payroll deduction is for political activities,” Mr. Collins said. “And ... the only resource of an employer that can’t be used for any kind of political activity is payroll deduction, this being in a statute targeted at employee support of union activity.”

Clay R. Smith, Idaho’s deputy attorney general, told the justices that the case raised issues of the state’s sovereignty over the operations of its political subdivisions.

The goal of the law is “to avoid either the appearance or the reality of public-employer involvement in ... electoral politics,” he said.

‘Collection Service’?

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled unanimously in October 2007 that the Idaho provision—as applied to local-government employers—burdens the unions’ political speech in violation of the First Amendment.

The law hampers unions’ participation in political activities “by making the collection of funds for that purpose more difficult,” the 9th Circuit court said.

The state’s appeal was backed by a number of groups that battle unions on several fronts, including over the right of teachers’ unions to deduct member dues, nonmember service fees, and political donations from employee paychecks.

A friend-of-the-court brief filed on the state’s side by the National Right to Work Legal Defense Foundation and other groups argues that government-facilitated payroll deductions actually amount to a subsidy to the unions, which the brief says violates the rights of the state’s citizens.

The “overriding issue” is “whether government payroll systems must provide a public collection service for private political associations that use the collected funds to facilitate political speech that many of their own members and taxpayers oppose,” says the brief by the National Right to Work group, which is based in Springfield, Va.

Two other states—Ohio and Utah—have similar laws.

A federal appeals court upheld Ohio’s ban on such “checkoffs” in 1998. Utah’s law was struck down earlier this year by the U.S. Court of Appeals for the 10th Circuit, in Denver, although that court has delayed the effect of its decision pending the outcome of the Idaho case.

On Election Day last week, Oregon voters were faced, for the third time in 10 years, with a ballot initiative that would bar such political checkoffs in their state. The measure was losing by a razor-thin margin, with ballots still being counted late last week.

Charity Contributions

In the Idaho case, the unions’ arguments appeared to get support from some of the justices at the Nov. 3 oral arguments.

Justice Ruth Bader Ginsburg questioned whether in practice the law only restricts paycheck deductions for political contributions to organized labor.

“It seems that what is burdened by the statute is union speech,” she said.

Justice John Paul Stevens asked the state’s lawyer whether local governments could allow deductions for employees’ contributions to “united fund” charities. Those wouldn’t be political causes barred by the statute, Mr. Smith said.

“But why differentiate political activity from charity contributions?” Justice Stevens asked.

But Justice Antonin Scalia suggested that the state’s differential treatment of paycheck deductions for politics “doesn’t seem to me particularly discriminatory” because the beneficiary—public-employee unions—is “a narrow class that has a special benefit.”

In 2007, Justice Scalia wrote the unanimous opinion in Davenport v. Washington Education Association, which upheld a Washington state law that made it more difficult for teachers’ unions to raise political funds through checkoffs. (“High Court Upholds Wash. State Law on Union Fees,” June 20, 2007.)

A decision in the Idaho case is expected by June.

A version of this article appeared in the November 12, 2008 edition of Education Week as Justices Weigh Bar on Payroll Deductions for Politics

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