Quin Hillyer
Unions lose a battle but gain an argument
By: Quin Hillyer
Examiner Columnist
March 10, 2009
Labor unions have long tried to finagle government into awarding them compulsory powers even when workers object. On Feb. 24, the Supreme Court reaffirmed that government can refuse such union pressure.
Many people by now have heard of the “card check” controversy about whether workers deserve secret ballots for union organizing elections. And most people have heard variations on the theme of whether a union can compel dues from unwilling workers.
But the Feb. 24 case, Ysursa v. Pocatello Education Association, asked a slightly different question: Can unions force governments to be collection agents for union political activities?
Common sense says no. Common sense says unions are free to ask members for donations for political work, but not to involve the state in collecting those donations. After all, does the state collect employee donations for political activities of the Christian Coalition or U.S. Chamber of Commerce? Of course not. Why should unions be different?
But the law is not always based on common sense. Unions are adept at gaining powers to assess dues even on non-members, or securing payroll deductions from private employers, by claiming to bargain for all workers collectively.
Hence this case from Idaho, in which state government allows payroll deductions for general dues of public employee unions, but prohibits paycheck withholding for the unions’ political action committees (PACs).
The unions argued that this policy put the government in the position of denying unions’ First Amendment rights by making it harder for unions to raise money necessary for promulgating their particular political views.
In arguments before the Supreme Court, both sides agreed that the state government itself may decline to provide paycheck withholding for union PACs. As Chief Justice John Roberts wrote, “The First Amendment prohibits government 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 expression.”
And, as Justice Stephen Breyer wrote in partial concurrence, “the state has a strong interest in ‘avoiding the reality or appearance of government favoritism or entanglement with partisan politics’.”
The unions, though, argued that the state could not forbid cities and other local government entities from establishing payroll systems that provide automatic deductions for union PACs. They said that if state government is not directly providing any subsidy for the local government’s paycheck-withholding service, its prohibition against municipal payroll withholding is (in Roberts’ description) “no longer declining to facilitate speech through its own payroll system, but is obstructing speech in the local governments’ payroll systems.”
Eight of the nine justices (all but John Paul Stevens) made short work of that argument. Roberts cited cases since at least 1883 recognizing that counties, cities, and the like are not “sovereign entities,” but instead are “subordinate governmental instrumentalities created by the state to assist in the carrying out of state governmental functions.” As “departments of the state,” the local governments are clearly subject to state government’s policies.
But just when the case seemed like a slam dunk against the unions, Justices Breyer and David Souter backtracked. In separate dissents, they argued that it was possible Idaho’s legislators were not merely avoiding state-sponsored politicking, but deliberately acting with hostility to unions’ political opinions.
The refusal to provide paycheck withholding, by their inverse logic, might be not an avoidance of political expression but an unconstitutional “viewpoint discrimination” against the unions’ free expression.
Breyer cited his own dissents in earlier cases, along with several foreign authorities, to argue for an “intermediate” level of review that would let the courts delve into the real motivations behind Idaho’s law.
And Souter faulted the unions for focusing on the state-versus-local question rather than continuing to challenge the law at all levels (local and state) as a First Amendment question.
Their objections don’t help the unions in this Idaho case. The high court majority ruled against the unions; that decision, quite rightly, will stand. But by going beyond the unions’ claims in this particular case, Breyer and Souter provided a road map for future union lawsuits by creating constitutional arguments the unions themselves did not raise here. Unfortunately, they thus invite unions to file more future cases to enlist the weight of government behind their quest for political power.
Quin Hillyer is associate editorial page editor for The Washington Examiner. He can be reached at qhillyer@gmail.com.
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