The U.S. Supreme Court, in a 6-3 decision handed down today, ruled that Idaho can bar payroll deductions to union political funds in cities, counties, school districts and other political subdivisions.
The First Amendment prohibits gov-ernment from “abridging the freedom of speech”; it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expres-sion. 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 theappearance that carrying out the public’s business istainted by partisan political activity. That interest ex-tends to government at the local as well as state level, and nothing in the First Amendment prevents a State fromdetermining that its political subdivisions may not provide payroll deductions for political activities.That's from the majority opinion, written by Chief Justice John Roberts. We wrote about the case when the Supreme Court took it on last summer. Though attorneys for Idaho argued that it was a state's right case, as in the state can tell its political subdivisions how to do their payrolls, Roberts' opinion weighs squarely on the First Amendment issues at stake.
Idaho does not suppress political speech but simply declines to promote it through public employer checkoffs for political activities. The concern that political payroll deductions might be seen as involving public employers in politics arises only because Idaho permits public employer payroll deductions in the first place.The Idaho Education Association response, in one way, undermines its own arguments in opposing the Voluntary Contributions Act.
In the wake of the VCA’s passage, IEA members began making their political donations by other means, particularly by electronic funds transfers (EFT).
“Our members are increasingly comfortable with EFT and other alternatives to the payroll deduction method for making their political contributions to the Political Action Committee for Education (PACE),” said IEA President Sherri Wood.
“Educators have a civic right and responsibility to engage in political action,” Wood said. “We remain committed to exercising our rights and responsibilities on behalf of our students and our profession.”Still, the teachers' union argues, and some of the Supreme Court justices agreed, the 2003 VCA was squarely aimed at punishing their members: "We are disappointed that the Court did not invalidate a law clearly intended to target union speech,” said IEA General Counsel John Rumel in a press release.
I agree that the First Amendment doesnot prohibit government from “declining to promote” speech. It says that government shall not “abridg[e] the freedom of speech.” (Emphasis added) . But I do not think the distinction particularly useful in this case. That is because here the distinction is neither easy todraw nor likely to prove determinative. Sometimes, I concede, the distinction may help. Were there no payrolldeduction system at all and were the unions arguing forthe creation of such a system from scratch, one mightcharacterize their claim as seeking the promotion of speech. But that is not the situation here. A deduction system already exists. The unions attack a separatestatutory provision that removes politically related deduc-tions from that system. And linguistically speaking, one need not characterize such an attack as (1) seeking speech promotion rather than (2) seeking to prevent an abridg-ment of political-speech-related activity that otherwise (i.e., in the absence of the exception) would occur. In such an instance, the debate over characterization is more metaphysical than practical.
As a matter of public policy, government systems should not be used to collect income or political funds for private organizations. The Supreme Court ruled that if unions want to engage in political activity they can collect contributions from individual donors—just like any other political candidate or entity. Nothing in the First Amendment forces local governments to act as the union’s political fundraiser. The law does not prohibit free speech, and it does not prevent members from donating to the union’s political causes.