Alaska Employment Law

Jump to Comments

Introduction

The United States Supreme Court issued an opinion this Tuesday morning upholding an Idaho state law that prohibits payroll deductions for political activities for public employee unions. The case is Ysursa v. Pocatello Education Association. This summary briefly reviews the opinion and its significance.

The Case

Idaho enacted a law that prohibited payroll deductions for political activities. An array of public employee unions filed suit challenging the constitutionality of the law. They argued that prohibiting payroll deductions placed an undue burden on their First Amendment rights because it made it more difficult to collect funds necessary to engage in protected free speech. The district court agreed and held that the statute violated the First Amendment as applied to local government. The district court determined that the law did not violate the First Amendment as applied to the State of Idaho. The Ninth Circuit affirmed. The court reasoned:

The law does not prohibit Plaintiffs from participating in political activities, but it hampers their ability to do so by making the collection of funds for that purpose more difficult. The district court found that unions face substantial difficulties in collecting funds for political speech without using payroll deductions because of their members’ concerns over identity theft associated with electronic transactions, as well as the time-consuming nature of face-to-face solicitation.

However, although the law was unconstitutional as applied to private employers and public employers other than the State of Idaho, the appeals court clarified that the State of Idaho remained free to prohibit payroll deductions for political activities with respect to its own employees. This was because “the First Amendment imposes no obligation to subsidize union and employee speech by paying for the administration of the payroll deductions.”

The Opinion

Finding that the statute did not infringe First Amendment rights, the Supreme Court reversed the Ninth Circuit in an opinion authored by Chief Justice Roberts. The Court reasoned that nothing in the First Amendment required states to subsidize speech. The statute did not restrict free speech. It simply declined to promote the speech, which is different. Idaho’s public employee unions remained free to engage in activities protected by the First Amendment without limitation or restriction. Because there was no content-based restriction, the lowest level of constitutional appellate review applied (called “rational basis”). The law passed rational basis review. Idaho’s reason for declining to allow payroll deductions for political activities was because the state did not want to seem as if public government was taking sides in political arguments. Looking to Davenport v. Washington Ed. Ass’n, 551 U.S. 177 (2007), for guidance, the Court concluded that this stated reason was valid.

Justice Breyer dissented. In his view, the distinction as between infringing or promoting speech was not especially helpful because a payroll deduction system was already in place. He viewed the Idaho law as targeting certain forms of expressive activity (”speech”) because of its content. Put in more simple and direct terms, the law allowed other payroll deductions, but prohibited payroll deductions for political activities. Justice Breyer therefore looked at this as being closer to a content-based restriction (if not quite reaching that platform) that should be subject to an intermediate level of scrutiny. The key question was: does the statute impose a “burden upon speech that is disproportionate in light of other interests that the government seeks to achieve”? The major issue was that it could not be ascertained whether the law treated unions in a similar manner as any other entities. Justice Breyer therefore concluded that the case should be remanded for further development of facts to determine if the law could survive such an intermediate level of review. From his perspective, the fundamental focus should have been on “whether the [law] concerns only labor-related political deductions (while allowing other similar deductions) or treats all alike.”

Justice Stevens also dissented. He perceived the law as being designed to “make it more difficult for unions to finance political speech.” It necessarily followed that it was unconstitutional under any analysis.

Justice Souter also dissented. He noted that the case raised several viewpoint discrimination implications that were never adequately developed or preserved on the record as presented to the Court. He therefore believed that the case was not an appropriate case for the Court to accept review for purposes of refining First Amendment doctrine. Consequently, Justice Souter believed that the best course to take was for the Court to dismiss the case without reaching the merits.

Significance

I believe that the result here logically followed Davenport’s wake, and that the Court’s analysis fits comfortably within its current precedent. In my annual Term preview, I predicted:

In Ysursa, I think the Court will reverse. The payroll deductions in question addressed voluntary political contributions. If the contributions are truly voluntary, employees wishing to contribute may easily do so vis-à-vis their respective unions. The reasons for finding some kind of undue burden seem unpersuasive. The reasoning implied by the district court and the Ninth Circuit seems somewhat similar to that applied by the Washington Supreme Court in Davenport v. Washington Education Association. That case involved the so-called “opt-in” laws by which unions may not use dues to support political causes unless the employees in question pre-approve the use of their contributions for those causes. The Washington Supreme Court struck such laws down. The Court reversed, finding no impediment to or burden imposed upon First Amendment rights. To me at least the same concept is at issue here.

It remains to be seen if the Alaska Legislature will enact any similar laws as the one enacted by Idaho. After the Court upheld Washington State’s law in Davenport, Senator Con Bunde introduced a similar measure. However, it never seemed to gain traction.