Whether, under the First Amendment, a state legislature may bar local governments from making payroll deductions to support political activities.
In 2003, the Idaho state legislature passed the Voluntary Contributions Act, which prevents state political subdivisions from making payroll deductions for political activities. The Pocatello Education Association and other organizations challenged the constitutionality of the statute, arguing that it impermissibly burdens free speech. The United States Court of Appeals for the Ninth Circuit found the state does not exercise sufficient control of local governments to allow it to regulate speech through its systems. It therefore found the statute unconstitutional. In this case, the Supreme Court will decide whether a state exercises sufficient control over local governments to allow it to regulate speech through their systems. This decision will impact whether the Court evaluates state government regulations of local governments using strict scrutiny or a “reasonableness” standard of review.
Questions as Framed for the Court by the Parties
Does the First Amendment to the United States Constitution prohibit a state legislature from removing the authority of state political subdivisions to make payroll deductions for political activities under a statute that is concededly valid as applied to state government employers?
In 2003, the Idaho state legislature enacted the Voluntary Contributions Act (“VCA”). See Pocatello Educ. Ass'n v. Heideman, 504 F.3d 1053, 1056 (9th Cir. 2007).The VCA consisted of a series of amendments to Title 44 of the Idaho Code. Id. at 1056. One of the amendments to Title 44 states that: “deductions for political activities as defined in Chapter 26, Title 44, Idaho Code, shall not be deducted from the wages, earnings or compensation of an employee.” Idaho Code Ann. § 44-2004(2) (2003). Political activities are defined as “electoral activities, independent expenditures, or expenditures made to any candidate, political party, political action committee or political issues committee in support of or against any ballot measures.” Idaho Code Ann. § 44-2602(1)(d) (2003). In essence, the VCA prohibits government employees from giving money to organizations engaging in political activities through payroll deductions. See Pocatello Educ. Ass’n v. Heideman, No. CV-03-0256-E-BLW, 2005 U.S. Dist. LEXIS 34494, at *10 (D. Idaho Nov. 23, 2005).
Several state worker labor organizations (hereinafter “Pocatello”) sued Idaho Secretary of State Ben Ysursa and other state officers (hereinafter “Ysursa”), seeking declaratory and injunctive relief from the enforcement of § 44-2004(2). See Pocatello Educ. Ass’n, 504 F.3dat 1057. Pocatello argued that the VCA violated the First and Fourteenth Amendments, which protect its right of free speech. See Id.
In the district court, Ysursa conceded that certain provisions of the VCA were unconstitutional, but did not concede that the payroll deduction prohibition violated the First Amendment. See Pocatello Educ. Ass’n, 504 F.3d at 1057. The district court found that the VCA restricted political speech by making it more difficult for local and private government employees to give money to political organizations, and therefore applied strict scrutiny. See Pocatello Educ. Ass’n, 2005 U.S. Dist. LEXIS 34494at *15–*16. The district court found the government’s arguments for why it had a compelling interest to implement the VCA unpersuasive, and therefore held that the VCA, as applied to employees of local governments and private employers, was an unconstitutional abridgement of their First Amendment rights. See id. at *18-*19.
On appeal, Ysursa contended that that the payroll deduction programs of local governments are the property of the State of Idaho, thus allowing Idaho to “exclude speakers on the basis of their subject matter as long as the distinctions drawn are viewpoint neutral and reasonable in light of the purposes served by the forum.” See Pocatello Educ. Ass’n, 504 F.3d at 1059-06 (quoting Davenport v. Wash. Educ. Ass’n, 127 S. Ct. 2372, 2381 (2007)). Ysursa advanced the argument that strict scrutiny should not apply to the VCA payroll deductions, as the statute regulated speech in a state-owned nonpublic forum in a neutral and reasonable fashion. See Id. at 1060. The Ninth Circuit upheld the lower court’s decision, finding that Ysursa failed to establish that Idaho is “the proprietor of the local workplaces or of local government payroll systems.” See Id. at 1063. The Ninth Circuit further found that “local governments had the right to own and control their own property,” and that the Idaho State government’s political authority over local governments and political subdivisions did not equate to control over the property of local governments. See Id. at 1065. The Ninth Circuit concluded that since the State of Idaho did not own the property of local governments, the VCA fails strict scrutiny as it remains a governmental regulation of political expression in a public forum. Ysursa appealed this holding and the Supreme Court granted certiorari. See Ysursa v. Pocatello Educ. Ass’n, No. 07-869 (U.S. 2008).
The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and petition the Government for a redress of grievances.” U.S. Const. amend. I. The Fourteenth Amendment incorporates the protections of the Bill of Rights against the states, limiting a state’s ability to impose restrictions on speech. U.S. Const. amend XIV. The Supreme Court can review a claim that a government is violating the First Amendment’s free speech provision using either a strict scrutiny or a rational basis standard of review. Strict scrutiny is the most exacting standard of judicial review, and requires that a state infringement on a constitutional right be narrowly tailored to serve an important state interest. See United States v. Carolene Products, 304 U.S. 144, 153 (1938). Rational basis or “reasonableness” review is less exacting, and will find a state action constitutional if it is reasonably related to achieving a legitimate state objective. See McCulloch v. Maryland, 17 U.S. 316, 324–25 (1819).
In 2003, Idaho’s legislature passed the Voluntary Contributions Act which prohibits all state public employers, including political subdivisions such as counties, municipalities, and school districts, from using payroll deductions to contribute money to political activities and organizations. Idaho Code Ann. § 44-2004(2). Because the statute restricts the ability of individuals to contribute to political activities, it may constitute an impermissible restriction on speech under the First Amendment.
Standard of Review
Pocatello Education Association (“Pocatello”) argues that the appropriate standard of review for the statute is strict scrutiny. See Brief for Respondent at 20. In Austin v. Michigan Chamber of Commerce, the Supreme Court recognized that political contributions are regarded as “speech” for the purposes of the First Amendment. See id. Pocatello argues that “singling out ‘deductions for political activities’ as the only payroll deductions for lawful purposes a local government employee may not permit an employee to make,” constitutes a content based restriction of speech.Id. at 21. A content based restriction on speech is a restriction which “singles out speech on ‘political’ or ‘controversial’ topics.” Id. at 21–22. Because it is a content based restriction, the Idaho statute is “presumptively invalid” and therefore subject to strict scrutiny. See id. at 22. Pocatello argues that though not on its face targeted at labor unions, the statute is designed to apply to their political activity and effectively outlaws the easiest method for employees to contribute to those activities, and thus reduces the ability of the unions to engage in them. See id. at 24.
Ysursa contends that the proprietary-regulatory distinction used by the United States Court of Appeals for the Ninth Circuit to hold the statute invalid is inappropriate because local governments do not stand in the same position in relation to the legislature as private actors. See Brief for Petitioner at 23. A forum exists whenever a government body has gatekeeper authority over access to it. See Id. Where, as here, the subdivisions hold a gatekeeper status and the legislature possesses the authority under state law to determine the scope of their power generally and in regard to employee relations, Rosenberger v. Rector requires the First Amendment claim be settled using forum principles. See id. at 23–24 (citing Rosenberger v. Rector, 515 U.S. 819, 830 (1995)).
For the purposes of First Amendment analysis, the Court will consider the payroll systems of the state political subdivisions fora. See Brief for Petitioner at 24. Three categories of fora exist: the traditional public forum, the public forum created by government designation, and the nonpublic forum. See id. The traditional public forum is defined as property which is assigned to assembly and debate either by long tradition or government fiat. See id. at 24–25. A government can also purposely designate a place not usually open to assembly and debate as a public forum. See id.at 25. Remaining government properties fall into the non-public forum category. See id.
Ysursa argues that under this framework, payroll systems should be deemed non-public fora, because they were created to serve an internal government administrative need, not as places for expressive activity. See Brief for Petitionerat 26–28. Ysursa further argues that the Court’s decisions in Cornelius v. NAACP Legal Defense & Education Fund, Inc.and Lehman v. City of Shaker Heights allow the Court to evaluate the Voluntary Contributions Act using reasonableness review. See Id. at 33. Both Lehman and Cornelius recognize neutrality on the part of public entities for the purposes of the First Amendment as a reasonable political objective. See id. “‘Government’s decision to restrict access to a nonpublic forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation,’ and “avoiding the appearance of political favoritism is a valid justification for limiting speech in a nonpublic forum’” Id. (quoting Cornelius v. NAACP, 473 U.S. 788, 808 (1985). Under this standard, Idaho’s statute is reasonable because it prevents only participation by public employers in politics, thereby avoiding the appearance that the government endorses any political group. See Id. It does not prohibit direct contributions by public employees to political activities or regulate their political activity.
Pocatello argues that applying a “reasonableness” standard in this case goes against the grain of the First Amendment. See Brief for Respondent at 27. Supreme Court precedent requires strict scrutiny for content-based restrictions on speech. See id. at 27–28. Reasonableness review is appropriate for content-based speech restrictions in a government forum only where the government entity restricts speech in its own forum while acting as a proprietor. Id. at 30. In this case, the political subdivisions, not the state legislators, are acting as proprietors. See id. at 32–33. The State is not engaged in on-going management of the local government payroll systems; since this statute constitutes the State’s only intervention into the management of such systems, it indicates that it is designed to stifle political speech. See id. at 33. Pocatello asserts that the use of a reasonableness test when considering a state’s legislative actions restricting access to local government is inconsistent with Court precedent. See id. at 35. Pocatello also argues that even under reasonableness review, the statute fails. See id. at 50. It is unlikely that members of the public would perceive a lack of impartiality in a local government which allowed employees to make political contributions, and therefore the statute is not “reasonably related” to a legitimate state interest. See id. at 51.
Driving a Wedge between a State and its Subdivisions
Ysursa argues that the Court has recognized that the “United States Constitution typically plays no role in controlling the relationship between States and their political subdivisions.” Brief for Petitioner at 47. State legislatures have the power to assign new duties or withdraw duties from political subdivisions. See id. at 52–54. Under Court precedent, Idaho’s counties, cities, and school boards, should not be equated to private entities. See id. at 54–55. Each political subdivision could pass and enforce the same regulation without contravening the First Amendment, and Idaho’s interest in not having any governmental entity associated with political activity is just as great as that of any local government. See id. at 56. Ysursa argues that it would be inappropriate to use an overly restrictive interpretation of public entity to “interpose the First Amendment between the Idaho legislature and its political subdivisions.” See id. at 55. “That the legislature has opted to effectuate a general policy against entanglement of payroll systems with the political process … represents precisely the type of public policy judgment left to the States by the Constitution.” Id.
Pocatello contends that there is no merit to the argument that the State may take the same action when the local government could take the same action without violating the First Amendment. See Brief for Respondent at 44–45. The State can refuse to facilitate political activity as applied to its own employees. See id. at 45. In this case, the state is not declining to subsidize political speech made using its facilities, but obstructing the ability of local governments to allow use of their facilities for public speech. See id. at 46. Pocatello also contends that upholding the Ninth Circuit’s decision will not use the First Amendment to “drive a wedge” between the state and local governments, as there is no question that the First Amendment applies to this state action. See Id. at 42. Pocatello argues that using strict scrutiny review would not bar a state from regulating access to subdivisions controlled by its political subdivisions. See id.at 42–43. Pocatello further concludes that there is nothing wrong with varying the “force of federal constitutional provisions…depending on the manner in which a state has structured its relationship with its local government political subdivisions.” Id. at 43.
A decision in favor of the State of Idaho (“Ysursa”) could potentially allow other state governments to impose certain ideas and viewpoints onto the “ideas” marketplace. See Brieffor Respondent at 24. Pocatello Education Association (“Pocatello”) contends that even though § 44-2004(2) is not “on its face” limited to contributions to union activities, the “statutory provisions that define where and how § 44-2004(2) is to apply” specifically target the political activities of unions. See Id. at 24. Taken as a whole, Pocatello believes that § 44-2004(2) will make it more difficult for unions to engage in political activities, because payroll deductions are the most cost-effective means through which unions collect funds for their political activities. See Id.; Pocatello Educ. Ass’n v. Heideman, No. CV-03-0256-E-BLW, 2005 U.S. Dist. LEXIS 34494at *12-*13 (D. Idaho Nov. 23, 2005). Absent the ability to solicit funds through payroll deductions, unions will have to solicit funds through possibly more costly means such as face-to-face solicitations, decreasing “the revenues available for” unions and increasing the “cost[s] and administrative burden[s]” on unions. See Pocatello Educ. Ass’n, 2005 U.S. Dist. LEXIS 34494,at *12-*13 (quoting Shackleford Supplemental Declaration at ¶ 3). If the Court finds the prohibition of payroll deductions constitutional, there is the potential danger that the “ability of the unions to engage in political speech will be diminished.” See id. at *13.
A decision in favor of Pocatello might have several potential ramifications as well. First, as Ysursa contends, if the Court makes certain laws applicable to certain parts of the state government and not other parts of the state government, it might create a balkanized state government where different political subdivisions are subject to different laws and regulations. See Petition for Writ of Certiorari at 31. Ysursa contends that such a situation might force state governments to eliminate political subdivisions and directly operate local governments in order to constitutionally impose speech restrictions and other forms of regulation. See Id. Americans for Limited Government argues that this could lead to an inefficient and confusing state legal system where different laws and regulations are followed by different political subdivisions within a state. See Briefof Americans for Limited Government in Support of Petitioner at 22. Amici states argue that this might be particularly problematic in situations where state governments want to protect a particular constitutional right. See Brief for the States of Utah et al. in Support of Petitioner at 6-7. If state governments cannot constitutionally regulate First Amendment rights in their own subdivisions, then they will also be hard pressed to enact legislation in protection of those very same rights. See Id. Finally, a decision in favor of Pocatello might call into question the constitutionality of state statutes and laws which regulate the expression of political activity in government workplaces. See Id. at 14. Amici states argue that statutes regulating the expression of political views in the workplace help state governments seem “politically unbiased and evenhanded.” See Id.A decision in favor of Pocatello might make it more difficult for state governments to maintain that semblance of neutrality and bipartisanship. See Id.
Pocatello counters that it is unlikely that the public would believe that a local government was endorsing its employees’ political views by allowing them to make payroll deductions for political activities. See Brief for Respondent at 50. It similarly argues that if the Court finds § 44-2004(2) unconstitutional, there is little risk that it would prevent states from regulating political activity by state employees. See Id. at 46–47. It argues that while laws such as § 44-2004(2), which regulate an employee’s request to make a “lawful political contribution by means of payroll deduction,” are unconstitutional, that laws which regulate “partisan conduct” by public employees would remain constitutional. Id. at 47.
The Supreme Court’s decision in Ysursa v. Pocatello Education Association will have important consequences for the First Amendment’s protection of free speech, and for a state’s ability to regulate its subdivisions. If the Court finds in favor of Ysursa, individuals will have to contribute to political organizations through means other than payroll deductions, possibly decreasing the funding those organizations receive. If the Court finds in favor of Pocatello Education Association, it will limit the ways in which states can maintain their political neutrality.