Ysursa puts Roberts’ stamp on union-fees debate

Wednesday, February 25, 2009

Chief Justice John Roberts Jr. has put his stamp on the debate over the free-speech implications of laws that restrict labor unions’ ability to collect dues or fees from government employees. For unions, the news is not good.

Roberts authored the Supreme Court’s 6-3 decision yesterday in Ysursa v. Pocatello Education Association, a challenge to an Idaho law that prohibited payroll deductions for local government employees to fund union political activities.

The 9th U.S. Circuit Court of Appeals, applying strict scrutiny to the law — the highest standard under the First Amendment — had struck down the provision, finding that the law was passed with the goal of “stifling political speech” and that the state had a “relatively weak interest” in preventing unions from exercising their First Amendment rights.

But Roberts in his majority opinion saw no state infringement on unions’ speech at all, and therefore no need to apply strict scrutiny to the statute. “Idaho’s law does not restrict political speech, but rather declines to promote that speech by allowing public employee checkoffs for political activities. Such a decision is reasonable in light of the state’s interest in avoiding the appearance that carrying out the public’s business is tainted by partisan political activity,” he wrote.

Later, Roberts added, “Given that the state has not infringed the unions’ First Amendment rights, the state need only demonstrate a rational basis to justify the ban on political payroll deductions.”

In a footnote, Roberts also opined, “A decision not to assist fundraising that may, as a practical matter, result in fewer contributions is simply not the same as directly limiting expression.”

That view and other language in the opinion, supported by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito Jr., does not leave much space for future First Amendment scrutiny of the range of laws that states have passed or could pass, often at the behest of right-to-work advocates, to restrict whatever access unions have to government employees for collecting fees or dues.

Roberts’ sweeping opinion triggered an unusual array of dissenting opinions, with three justices writing separately in dissent.

“I disagree with the court in that I believe there is a First Amendment interest at stake,” wrote Justice Stephen Breyer in a partial dissent. The law, he added, “affects speech, albeit indirectly, by restricting  a channel through which speech-supporting finance might flow.”

Justice John Paul Stevens, also dissenting, said, “Because it is clear to me that the restriction was intended to make it more difficult for unions to finance political speech, I would hold it unconstitutional in all its applications.” Stevens viewed the law as a content-based restriction on speech, because its target was unions, not any other entity.

“The majority’s facile assertion that the First Amendment does not confer a right to government subsidization of private speech cannot validate an evidently discriminatory restriction on fundraising for political speech,” Stevens added.

A third dissenter, Justice David Souter, also reviewed the history of the Idaho legislation and concluded, “Union speech, and nothing else, seems to have been on the legislative mind.”

Conservative, business and right-to-work organizations applauded the decision. “The Ysursa decision is another important decision on the role of government in funding labor union activities with money deducted from the paychecks of workers,” said Timothy Sandefur of the Pacific Legal Foundation.

“The Supreme Court's decision makes clear what should be obvious, that union officials have no constitutional right to use government resources to line their pockets,” said Stefan Gleason, vice president of the National Right to Work Foundation. “It is bad public policy for government bodies essentially to act as bagmen for union political monies.”

Karen Harned, executive director of the National Federation of Independent Business Small Business Legal Center, also hailed the ruling. “NFIB believes that government payroll systems shouldn’t provide a public collection service for private political associations that use those funds to facilitate political speech, especially speech that many of their own members and taxpayers do not agree with.”

Unions were largely silent in the wake of the decision yesterday. No friend-of-the-court briefs were filed on the side of the Pocatello teachers’ union in the case. The Associated Press quoted John Rumel, a lawyer for the statewide teachers’ union, as saying, “While we’re certainly disappointed in the outcome, we’ve moved on.” Rumel explained that in anticipation of the high court ruling, unions had moved toward electronic fund transfers, rather than payroll deductions, as a method of collecting funds for political activities.

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