A 2003 Idaho law that aimed to strip Idaho unions of whatever political fund-raising muscle they had nearly fell by the wayside. By court order, the law—called the Voluntary Contributions Act—never went into effect.
But Idaho quietly appealed the case to the U.S. Supreme Court, which took the case in March. When the case, Ysursa and Wasden vs. Pocatello Education Association, et. al. is heard, probably about the time of the November elections, the decision could have widespread implications for union politicking in Idaho and across the nation.
Or, the state could wind up footing the legal bill for the teachers' union and inspire a few more government workers to join the union rolls.
The Voluntary Contributions Act took a broad swipe at public employee unions—mostly teachers and firefighters in Idaho—aiming to quash their ability to raise political funds. It even applied to some private-sector unions, though the state quickly admitted that it had no business regulating how businesses do their payrolls.
When it passed, the bill barred unions from using dues for political activities, required unions to set up separate political funds for candidate support and other political work, dictated how unions solicit political funds and banned payroll deductions for political purposes.
The state, through Idaho Attorney General Lawrence Wasden's office, agreed that the definition of political activities was too broad in the bill and let most of its requirements drop. The Supreme Court will rule on the payroll deduction ban, the only remaining issue in the case.
"The notion is that states and their political subdivisions should be neutral, should neither aid nor retard political speech by their employees," said Clay Smith, a deputy Idaho attorney general who has pursued the case for the state.
Smith argues that: "Nothing in the First Amendment precludes a state legislature from requiring its own governmental creations to take an action that, in the absence of such requirement, the political subdivision may take without infringing the Free Speech Clause."
The state has made the case into a states' rights case, arguing that the legislature has the right to dictate to school districts, fire districts and other local governments how they do their payrolls.
But the unions read the First Amendment differently.
"It just adds another hurdle to being a state employee and trying to make your voice heard using your own money," said Bob McCarl, a Boise State professor who studies the sociology of work.
McCarl gives money to the Service Employees International Union's political action committee. But he has to cut a separate check to the PAC because Boise State only allows two payroll deductions, and his are taken up by regular union dues to the SEIU and to the American Federation of Teachers, a union of professors.
"Boise State desperately needs some sort of employee organization," McCarl said. "If the Teamsters came in, God forbid ... I don't care who organizes the place, but the reality is the employees have no voice."
So far, U.S. District Judge B. Lynn Winmill and the Ninth Circuit Court of Appeals have agreed that the state cannot regulate the way that public employees in school districts, cities, fire districts and other local governmental bodies spread out their paychecks. They can give to the United Way, have gym dues taken out of their paychecks or give $5 to a PAC if they have negotiated those arrangements with their employers.
But the employees of state agencies may be a different story. The SEIU is attempting to set up a payroll deduction plan for state workers for the first time.
"It goes to what's in the best interest of state employees and when are these people, as a group, going to wake up and say enough's enough," said Andrew Hanhardt, president of the SEIU-affiliated Idaho Association of Government Employees.
The Office of the State Controller sets up payroll deduction programs for a minimum of 50 employees who have a common request, said Brandon Woolf, deputy controller for payroll. The final decision is up to State Controller Donna Jones, and her office is closely watching the outcome of the union case.
Hanhardt said he has a list of about 40 people interested in having between $2 and $10 a month deducted from their paychecks and sent to his union's PAC, the Public Employees PAC.
Whether the state will offer payroll deductions for union PACs depends on how closely one reads the First Amendment.
The unions argue that the state swooping in and trying to regulate economic speech—political contributions—on a local level does not hold up to strict scrutiny, a more cautious implementation of the First Amendment.
The state says school districts cannot use payroll systems for funding political action.
"They've singled out that type of giving. That's regulating political speech on the basis of content," said Idaho Education Association attorney John Rumel.
And targeting unions for the regulation, as opposed to charity giving or gym membership, is blatantly political as well.
"They want to be able to regulate IEA and firefighters' political activity, which has not been friendly to the majority of incumbent legislators," Rumel said.
But the state holds that a less cautious interpretation of the First Amendment is warranted because a payroll system is not a traditional forum for free speech, like a park. If the state can show a reasonable objection to providing the service, like an added taxpayer cost, it can be justified in regulating that type of speech.
On the same day that the U.S. Supreme Court took up the Idaho union case, the justices also chose to deliberate on a Utah case involving freedom of speech in a public forum. A man named Summum Ra, president of Summum Church, wants to place a monument in a Pleasant Grove, Utah, park and the city has denied the request.
Utah also figures heavily into the Idaho case since it is the only other state to pass a Voluntary Contributions Act. The 10th Circuit Court of Appeals ruled the Utah act unconstitutional as well, largely agreeing with the 9th Circuit, though the Utah case is awaiting further review. But some legal experts were surprised that the Supreme Court would take up a case that two circuit courts had already agreed upon.
In a presidential election year, the stakes are high for labor unions, for conservative legislatures and, some might argue, for the U.S. Supreme Court itself. While payroll deductions may seem like a small piece of the pie, the way a paycheck is divvied up speaks to workers' rights and is at the center of the unions' political strategy—to get more worker-friendly politicians in office.
"It's a very big deal because it's the most effective manner for unions to be able to utilize contributions of members who want to contribute towards political expenditures," said Alan Herzfeld, an attorney for the Professional Firefighters of Idaho. "And of course the legislature knew that."