Lead Opinion
Undеr Idaho law, a public employee may elect to have a portion of his wages deducted by his employer and remitted to his union to pay union dues. He may not, however, choose to have an amount deducted and remitted to the union’s political action committee, because Idaho law prohibits payroll deductions for political activities. A group of unions representing Idaho public employees challenged this limitation. They conceded that the limitation was valid as applied at the state level, but argued that it violated their First Amendment rights when applied to county, municipal, school district, and other local public employers.
We do not agree. 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. Idahо’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 the appearance that carrying out the public’s business is tainted by partisan political activity. That interest extends to government at the local as well as state level, and nothing in the First Amendment prevents a State from determining that its political subdivisions may not provide payroll deductions for political activities.
I
Idaho’s Right to Work Act declares that the “right to work shall not be infringed or
Prior to 2003, employees could authorize both a payroll deduction for general union dues and a payroll deduction for union political activities conducted through a political action
Shortly before the VCA was to take effect, plaintiff labor organizations sued the Bannock County prosecuting attorney, the Idaho secretary of state, and the Idaho attorney general in their official capacities, alleging that the ban on political payroll deductions was unconstitutional under the First and Fourteenth Amendments tо the United States Constitution. App. 18-41.
The state defendants appealed, contending that the ban on political payroll deductions may be constitutionally applied to locаl government employees. Pocatello Ed. Assn. v. Heideman,
The Court of Appeals agreed with the District Court that there was “no subsidy by the State of Idaho for the payroll deduction systems of local governments.” Id., at 1059. The appellate court remarked that “the generalized lawmaking power held by the legislature with respect to a state’s political subdivisions does not establish that the state is acting as a proprietor” with respect to local government employers. Id., at 1064. The court instead regarded the relationship between the State and its political subdivisions as analogous to that between the State and a regulated private utility. See id., at 1063-1065 (citing Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y.,
II
Restrictions on speech based on its content are “presumptively invalid” and subject to strict scrutiny. Davenport v. Washington Ed. Assn.,
The First Amendment, however, protects the right to be free from government abridgment of speech. While in some contexts the government must accommodate expression, it is not required to assist others in funding the еxpression of particular ideas, including political ones. “[A] legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.” Regan v. Taxation With Representation of Wash.,
The court below concluded, and Idaho does not dispute, that “unions face substantial difficulties in collecting funds for political speech without using payroll deductions.”
Given that the State has not infringed the unions’ First Amendment rights, the State need only demonstrate a rational basis to justify the ban on political payroll deductions. Id., at 546-551. The prohibition is not “aim[ed] at the suppression of dangerous ideas,” id., at 548 (internal quotation marks omitted), but is instead justified by the State’s interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics. We havе previously recognized such a purpose in upholding limitations on public employee political activities. See Civil Service Comm’n v. Letter Carriers,
Davenport guides our resolution here. That case also involved a distinction based on the content of speech: Specific consent was required from nonunion members before agency fees charged to them could be used for election-related activities, but consent was not required with respect to agency fees used for other purposes.
Here the restriction is on the use of a checkoff to fund political activities, but the same analysis governs. 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. As in Davenport, the State’s response to that problem is limited to its source — in this case, political payroll deductions. The ban on such deductions plainly serves the State’s interest in separating public employment from political activities.
The question remains whether the ban is valid at the local level. The unions abandoned their challenge to the restriction at the statе level, but contend that strict scrutiny is still warranted when the ban is applied to local government employers. In that context, the unions argue, the State is no longer declining to facilitate speech through its own payroll system, but is obstructing speech in the local governments’ payroll systems. See Brief for Respondents 44-46. We find that distinction unpersuasive, and hold that the same deferential review applies whether the prohibition on payroll deductions for political speech is directed at state or local governmental entities.
“Political subdivisions of States — counties, cities, or whatever — never were and never have been considered as sovereign entities.” Reynolds v. Sims,
The State’s legislative action is of course subject to First Amendment and other constitutional scrutiny whether that action is applicable at the state level, the local level, both, or some subpart of either. But we are aware of no case suggesting that a different analysis applies under the First Amendment depending on the level of government affected, and the unions have cited none. The ban on political payroll deductions furthers Idaho’s interest in separating the operation of government from partisan politics. That interest extends to аll public employers at whatever level of government.
In reaching the opposite conclusion, the Court of Appeals invoked our decision in Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y.,
That analogy is misguided. A private corporation is subject to the government’s legal authority to regulate its conduct. A political subdivision, on the other hand, is a subordinate unit of government created by the State to carry out delеgated governmental functions. A private corporation enjoys constitutional protections, see First Nat. Bank of Boston v. Bellotti,
Both the District Court and the Court of Appeals found it significant that “there is no subsidy by the State of Idaho for the payroll deduction systems of local governments.”
* * *
The Court of Appeals ruling that Idaho Code § 44-2004(2) is unconstitutional with respect to local units of government is reversed.
It is so ordered.
Notes
The unions also challenged other provisions of the VCA, including one requiring labor organizations to establish a “separate segregated fund” for political activities. Idaho Code §§ 44-2601 through 44-2605 (Michie 2003); see App. 27-34. In response to that challenge, the State agreed to strike “all of the VCA except for its ban on political payroll deductions.” Pocatello Ed. Assn. v. Heideman,
Justice Bkeyer finds this analysis inapplicable because the challenged provision removes politically related deductions from an existing system. Post, at 366 (opinion concurring in part and dissenting in part). But available deductions do not have tenure; a legislature is free to address concerns as they arise.
Justice Breyer would also subject the ban to more exacting scrutiny by analogizing it to various direct restrictions on expression. See post, at 367-368. That analogy misses the mark. A decision not to assist fund-raising that may, as a practical matter, result in fewer contributions is simply not the same as directly limiting expression. Cf. Regan v. Taxation With Representation of Wash.,
Justice Breyer suggests that the han on political payroll deductions may not be applied evenhandedly to all politically related deductions. Post, at 369-370. Justice Stеvens goes further and would find the ban unconstitutional in all its applications as discriminatory. Post, at 370 (dissenting opinion). The District Court, however, noted that the ban “is not viewpoint-based,”
The ban on political payroll deductions is by its terms not limited to any particular type of political contribution. Nothing in the record suggests that public employers permit deductions for some political activities but not for those of unions. Idaho’s attorney general — charged with enforcing the ban — explicitly confirmed that it “applies to all organizations, to any deduction regarding political issues, applies regardless of viewpoint or message, аpplies to all employers, and it does not single out any candidates or issues.” App. 110. If the ban is not enforced evenhandedly, plaintiffs are free to bring an as-applied challenge. See National Endowment for Arts v. Finley,
Concurrence Opinion
concurring in part and concurring in the judgment.
The classification question this case presents can be answered without extended discussion. The parties agree here, as they did in the Court of Appeals, that Idaho’s ban on payroll deductions for political activities violates First Amendment limitations as applied to the private sector. They also agree here, as they did before the Ninth Circuit, that the ban is permissible as applied to state-level government entities. See ante, at 357,362; Tr. of Oral Arg. 4. The sole question posed for this Court’s decision is the appropriate placement of the State’s political subdivisions: For the purpose at hand, should the Court align local-government employment with private-sector employmеnt or with state-level employment?
“Given the relationship between the State and its political subdivisions,” the Court persuasively explains, “it is immaterial how the State allocates funding or management responsibilities between the
Concurrence Opinion
concurring in part and dissenting in part.
In Part III of its opinion, the Court points out that the law ordinarily treats municipalities as creatures of the State. See Reynolds v. Sims,
I do not agree, however, with the Court’s further analysis of the pertinent legal question — whether the state statute violates the First Amendment. Nor do I agree with its ultimate conclusion. Rather, in my view, we should remand this case for further consideration.
The Court’s First Amendment analysis emphasizes its characterization of the statute as not “abridging” a union’s or a worker’s “freedom of speech,” but rather “declin[ing] to promote” that speech. Ante, at 355 (internal quotation marks omitted). I agree that the First Amendment does not 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 to draw nor likely to prove determinative. Sometimes, I concede, the distinction may help. Were there no payroll deduction system at all and were the unions arguing for the creation of such a system from scratch, one might characterize their claim as seeking the promotion of speech. But that is not the situatiоn here. A deduction system already exists. The unions attack a separate statutory provision that removes politically related deductions 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 abridgment 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.
More importantly, the characterization quite possibly does not matter. Suppose, for example, a somewhat similar statutory exception picks and chooses among political causes, prohibiting deductions that help one political party while permitting deductions that help another. The First Amendment result could not turn upon whether one described the exception as an “abridgment” or a “promotion” failure. And, as I shall explain, infra, at 369-370, such may be the case here.
I disagree with the Court’s characterizations in another respect. The Court says that because the exception “has not infringed the unions’ First Amendment rights,” “strict scrutiny” does not apply and, thus, the State “need only demonstrate a rational basis” — the standard of review applicable to any ordinary legislation that does not infringe fundamental rights — “to justify the ban on political payroll deductions.” Ante, at 359 (emphasis added). I agree that the exception does not call for “strict scrutiny” — a categorization that almost always proves fatal to the law in question. After all, the exception does not restrict the content of the unions’ speech, impose a prior restraint on that
But I disagree with the Court in that I believe there is a First Amendment interest at stake. The exception affects speech, albeit indirectly, by restricting a channel through which speech-supporting finance might flow. As a result, the alternative to “strict scrutiny” is not nеcessarily a form of “rational basis” review — a test that almost every restriction will pass. And instead of applying either “strict scrutiny” or “rational basis” review to the statutory exception, I would ask the question that this Court has asked in other speech-related contexts, namely, whether the statute imposes a burden upon speech that is disproportionate in light of the other interests the government seeks to achieve. See Burdick v. Takushi,
In these cases the Court has sought to determine whether the harm to speech-related interests is disproportionate in light of the degree of harm, justifications, and potential alternatives. In doing so, it has considered the seriousness of the speech-related harm the provision will likely cause, the importance of the provision’s countervailing objectives, the extent to which the statute will tend to achieve those objectives, and whether there are other less restrictive ways of doing so. In light of these considerations, it has determined whether ultimately the statute works speech-related harm that is out of proportion to its justifications. See Board of Trustees of State Univ. of N. Y. v. Fox,
Where context calls for “strict scrutiny,” one would not necessarily
Applying this analysis here, I would find the statutory exception constitutional, but only if I were convinced that the exception applied evenhandedly among similar politically related contributions. If so, the provision would still negatively affect speech-related interests, for it would close off one channel through which individuals might provide speech-enabling funds to political institutions. But, as the majority points out, many other channels for those funds exist, and the State has a strong interest in “аvoiding the reality or appearance of government favoritism or entanglement with partisan politics,” ante, at 359. I would consequently find the restriction justified as proportionately serving a legitimate, important governmental need. Cf. Fox, supra, at 480.
It is not clear, however, whether the particular exception before us does, in fact, operate evenhandedly. To read the statute without more, I concede, suggests evenhandedness. The provision says that “[deductions for political activities as defined in chapter 26, title JM,, Idaho Code, shall not be deducted from the wages, earnings or compensation of an employee.” Idaho Code §44-2004(2) (Michie 2003) (emphasis added). And chapter 26, title 44, Idaho Code, defines “political activities” without special reference to labor organizations. See § 44-2602(l)(e).
Nonetheless, certain features of the provision suggest it may affect some politically related deductions, namely, labor-related deductions, but not others. Title 44 of the Idaho Code — entitled “Labor” — is about labor activities. And the ban on payroll deductions for political activities was enacted as part of a statute in which every other provision is concerned solely with union activities. See Voluntary Contributions Act, 2003 Idaho Sess. Laws chs. 97 and 340 (codified at Idaho Code §§44-2601 through 44-2605 and §44-2004). At the same time, the provision containing the payroll deduction ban is immediately followed by another related provision that expressly mentions labor unions. See §44-2004(3) (“Nothing in this chapter shall prohibit an employee from personally paying contributions for political activities ... to a labor organization unless such payment is prohibited by law” (emphasis added)).
It is important to know whether the exception concerns only labor-related political deductions (while allowing other similar deductions) or treats all alike. A restriction that applies to thе political activities of unions alone would seem unlikely to further the government’s justifying objective, namely, providing the appearance of political neutrality. And in that case, the provision could well bring about speech-related harm that is disproportionate to the statute’s tendency to further the government’s “neutrality” objective.
Because the Court of Appeals analyzed the issue as if the State “regulated” its municipalities (as government might regulate a private firm), it did not resolve the questions I have just described. I would remand the case so that it can decide whether the parties appropriately raised those matters and, if so, consider them. Accordingly, I would vacate the Court of Appeals’ judgment and remand the case.
Dissenting Opinion
dissenting.
In both the public and private sector, payroll managers routinely remit portions of employees’ wages to third parties pursuant to the employees’ written instructions. For decades, employers in Idaho had discretion to allow such payroll deductions. In 2003, however, the State enacted the Voluntary Contributions Act (VCA), 2003 Sess. Laws chs. 97 and 340 (codified at Idaho Code § 44-2004 and §§ 44-2601 through 44-2605 (Michie 2003)), which,
I
“It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.” Rosenberger v. Rector and Visitors of Univ. of Va.,
That the restriction was more narrowly intended to target union fundraising is first evidenced by its statutory context. The other provisions of the VC A with which §44-2004(2) was enacted pertain exclusively to unions.
The statute’s discriminatory purpose is further evidenced by its substantial overinclusiveness and underinelusiveness with respect to the State’s asserted interest in passing the legislation. Petitioners contend that the restriction was enacted to further thе State’s interest in avoiding the appearance or actuality of public employer involvement in partisan politics. See Tr. of Oral Arg. 15. But, as enacted, §44-2004(2) prohibited private as well as public employers from making payroll deductions for political activities. As petitioners admitted at oral argument, “the State has no interest in ... private employers’ determination to be involved or not involved in political matters.” Id., at 6. That petitioners conceded the invalidity of § 44-2004(2) as applied to private employers earlier in this litigation does not require us to ignore
The State’s interest in avoiding the appearance or reality of employer political involvement is also inconsistent with its decision not to restrict deductions for charitable activities. Such deductions will often present a similar risk of creating an appearance of political involvement as deductions for covered political activities. Yet the State has made no effort to distinguish this type of political activity. As with the State’s decision to apply §44-2004(2) to private employers, its failure to apply the restriction to charitable deductions produces a significant mismatch between the restriction’s reach and its asserted purpose.
To my mind, it is clear from these features of the legislation that § 44-2004(2)’s prohibition on payroll deductions for “political activities” was intended to target union political activity. Cf. Chamber of Commerce of United States v. Brown,
II
Although the statute’s discriminatory purpose provides an adequate ground for deciding this case, I briefly note my disagreement with the majority’s analysis of §44-2004(2)’s constitutionality as applied to local government employees. The Court of Appeals found this application of the provision invalid due to the State’s failure to show that it “actually operates or controls the payroll deduction systems of local units of government.” Pocatello Ed. Assn. v. Heideman,
Unlike the Court of Appeals, the majority omits any examination of the relationship Idaho has established with its political subdivisions. Rather, the majority finds it sufficient to assert that States, as the creators of local government, retain the authority to grant or withdraw subdivision powers and privileges. Ante, at 362. The fact of that authority, however, hardly proves that the particular relationship between a State and its political subdivisions is irrelevant to our constitutional inquiry. All States do not treat their subdivisions the same, and those differences are sometimes consequential.
We have in other contexts recognized the constitutional significance of the relationship a State chooses to establish with its political subdivisions. For instance, in Mt. Healthy City Bd. of Ed. v. Doyle,
Although we have not previously considered the implications of the state-subdivision relationship in the First Amendment context, we have repeatedly recognized the significance of an analogous inquiry: whether the government, in imposing speech restrictions, is acting in its capacity as regulator or proprietor. See, e. g., Davenport v. Washington Ed. Assn.,
Because my conclusion that §44-2004(2) discriminates against labor organizations is sufficient to decide this case, I find it unnecessary to fully consider the implications of Idaho’s relationship with its political subdivisions. Rather, I note the significance of this relationship to urge its careful consideration in future cases.
Ill
The majority avoids acknowledging § 44-2004(2)’s evidently discriminatory purpose only by examining the statute out of context and ignoring its initial applicability to private employers. Considering the provision as enacted, I cannot find it justified as the majоrity does by “the State’s interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics,” ante, at 359. The impermissible purpose that quite obviously motivated the enactment of the VC A and fully justified its invalidation as applied to private employers should
I respectfully dissent.
Respondents also challenged these provisions of the VCA, and petitioners conceded their invalidity earlier in this litigation, acknowledging that they violated the First Amendment by restricting the ability of labor organizations to solicit political contributions. See Pocatello Ed. Assn. v. Heideman,
It may even be true that § 44-2004(2) only affects union political activity, as petitioners can point to no evidence that another entity is affected by the statute. See Tr. of Oral Arg. 8. But it is unnecessary to detеrmine whether other entities are actually affected by the restriction in light of its clearly discriminatory purpose.
The discriminatory nature of §44-2004(2) distinguishes it from the restriction we upheld in Davenport v. Washington Ed. Assn.,
The State conceded at oral argument before the Court of Appeals that it is not the proprietor of local government workplaces or their payroll deduction programs. See
Dissenting Opinion
dissenting.
If I thought this case should be classified solely as one about the First Amendment’s limits on a State’s management of its own affairs, I would join the judgment, and as it is I agree with much of the Court’s opinion. So far as Idaho’s law affects freedom of expression, I am not persuaded there is sufficient reason to treat the State’s statutory prohibition differently depending on the unit of its government employing the worker whose salary deduction would fund political activity. There is no question in this case that the lower echelons of Idaho government are creatures of the State exercising state power in discharging what are ultimately state responsibilities. Nor is there any apparent reason to think the State’s asserted legitimate interest differs according to the level of government doing the State’s work, whether that interest is having a firewall between public administration and politics or simply exercising a power to decide whether public employees who administer payrolls should spend work time advancing private political speech.
But I find it impossible to stop there. Although this case comes to us as one about the scope of the public business the State is free, within reasonable limits, to manage as it thinks wise, the specter of another First Amendment category, one of superior significance, is too insistent to ignore. It is true that government may choose to manage its own affairs in ways that draw reasonable subject-matter lines affecting speech, being free, for example, to sell space on its buses for advertising soap but not politicians. See Lehman v. Shaker Heights,
This difference between viewpoint discrimination and neutral regulation of governmental activity is on point in this case. For although the State invokes its legitimate interest in keeping public administration free from political involvement as its reason for Idaho Code § 44-2004(2) (Michie 2003), this ostensibly viewpoint-neutral rationale suffers from the circumstances Justice Stevens describes in detail, see ante, at 371-373 (dissenting opinion). Every other provision of the amendatory act in which §44-2004(2) was included deals with unions, the statute amended regulates unions, and all this legislation is placed in the State’s labor law codification. Ante, at 371. Union speech, and nothing else, seems to have been on the legislative mind.
The Court’s answer to this recalls Davenport v. Washington Ed. Assn.,
What to do about this reasonable suspicion of viewpoint discrimination is a dilemma. We can hardly disregard it, for it affects the weight this case can carry as precedent; a decision that ignores the elephant in the room is a decision with diminished authority. But the potential issue of viewpoint discrimination that should be addressed in this case is not before us. Although the unions’ brief alludes to viewpoint discrimination in several places, that is not the focus of their argument. The unions, instead, aim at showing that the State is acting as a regulator of local governments (much as it regulates private corporations), not as a manager setting limits to what government will do with public resources; consequently they rest their position on the argument that any state discrimination against political speech is illegitimate, however consistently all shades of political speech may be treated. And even if we could properly recast the case by remanding to consider viewpoint discrimination, see Cornelius, supra, at 811-812, a remand could only affect the application of the statute to subordinate units of government; the unions have accepted the constitutionality of applying the law to the State, where an effort at viewpoint discrimination would be as unconstitutional as it would be at the level of a town.
The upshot is that if we decide the case as it comes to us we will shut our eyes to a substantial, if not the substantial, issue raised by the facts. But if we were to expand the issues presented to us by remanding for enquiry into viewpoint discrimination, we would risk having to wink later at an unconstitutional application of the law to the State, owing to the unions’ decision not to challenge that application either in the Ninth Circuit or before us. This is a good description of a case that should not be in this Court as a vehicle to refine First Amendment doctrine.
I would dismiss the writ of certiorari as improvidently granted, and I respectfully dissent.