Oral Argument Transcript Analysis of Ysursa

What follows are some of my initial impressions after reading through today's oral argument transcript in the U.S. Supreme Court case of Ysursa v. Pocatello Education Association, concerning the right of legislatures to prohibit voluntary payroll deductions by local government employees for political activities.

1.  The petitioner (the Idaho Secretary of State) states the question presented thusly: "This case is narrowed to a single, but from the Petitioner's perspective a critical, dispute over the scope of internal State sovereignty: whether the First Amendment trumps the otherwise existing authority of the Idaho legislature to direct political subdivisions of the State to take an action, here restricting access to their payroll systems, that the subdivisions could take independently without violating the Amendment."  Idaho Code Section 44-2004(2) prohibits State and local government public employers from deducting amounts for political activities from the payroll checks due to their employees and remitting those amounts to third parties.  In other words, "the legislature concluded that it wanted all public employers, among others, to not allow access to their payroll systems." 

2. Justice Kennedy, always an important vote in cases like these, tipping his hands early:

I've been looking for ways to examine this case. The public forum doesn't really work for me. Subsidy doesn't really work for me. It seems to me to be an unconstitutional-condition case. At least that's the argument.

And if it is an unconstitutional conditions case and the state of Idaho is conditioning state employment on the restrictions on employees' political activity through impinging on its ability to support unions, then Idaho might be in trouble.

3.  Justice Ginsburg relates her concern regarding the motivations of this law:

But does it get at any speech other than union speech? I mean you say, yes, it is content-based, but it's viewpoint neutral. But it seems that what is banned by the statute is union speech. Is any other organization affected? Does the ban affect any other organization? Isn't it simply union speech that's at stake?

This strikes me as the other side of the Chamber of Commerce v, Brown coin, the case concerning whether the state could prohibit its money being used for labor purposes.  The opponents of California bill pointed out that the bill was really about keeping employers from engaging in anti-union campaigns.  Since the Court seemed to agree with that assessment in Brown, is it not pretty clear that this Idaho law is all about making it more difficult for unions to engage in political activities?   Not surprisingly, 44-2004(2) is part of the Idaho Right to Work Act.

4.  Justice Breyer weighs in:

The question would be: Look, one, do you or do you not in Idaho allow anybody to have payroll deductions for anything? And I take it your answer to that question is: Yes, we do allow some payroll deductions for some things. Okay?

So then we look at this one, and it says: No payroll deductions for union activities that are political. All right? Now, you either do have or you do not have a justification for that difference. If you have a reasonable, or whatever the sufficient test is, justification for the difference, you win. And if you don't, you lose.

It appears that counsel states that difference as such: "the desire to avoid either the appearance or the reality of public employer involvement in, in this instance, electoral politics." And then the question is whether the mere act of allowing payroll deductions makes the government employer entangled in electoral politics?  Seems a stretch to me.

5.  Justice Scalia weighs in for the employer, against the union:

It doesn't seem to me particularly discriminatory to say that, moreover, in making those deductions, no part of it will be given for political activities. I mean you're only addressing a narrow class, but it's a narrow class that has a special benefit.

6. Justice Souter seems to believe the necessary distinction does not exist between the various payroll deduction laws:

It -- it seems to me, going back to Justice Stevens's initial question, that I don't see where the distinction lies between the -- in effect, the position of the local-government units and corporations, and --and between the local-government units and the corporations. And it seems to me that that's a problem for you quite apart from any application of Federal law.

7. Counsel for the Education Association set up its case this way:

This case turns on three points. First, the statute at issue is a content-based restriction on speech which is therefore presumptively invalid, requires heightened scrutiny, which Petitioners acknowledge they have not satisfied, unless one of the exceptions to heightened scrutiny is applicable here, those being exceptions which as the Court has explained in R.A.V. and Davenport, are limited to circumstances where there is no real risk of viewpoint suppression.

8.  Interesting distinction between what a state can do with its own employees (under Rust and other cases setting out the government speech doctrine) and what a state can prohibit its local municipalities from doing with regard to its employees.  Counsel for Respondent does a good job explaining the different powers involved and explains why this is not a government speech case.

9.  Justice Stevens does not believe that this case turns on whether it is a government speech case like Rust or Regan at all:

But this is not a case involving a State's decision not to spend the time and energy to do payroll deductions because they do them for everybody else. It's simply based on the reason for the payroll deduction, which is, in your view, an impermissible reason. Is that not correct?

10.  I knew Garcetti and Pickering would come up in this argument somehow and it does:

CHIEF JUSTICE ROBERTS: Why are you -- why are you focusing on heightened scrutiny? We have a whole series of cases about employee speech [G]arcetti and Pickering where it's quite different than heightened scrutiny, and here we are talking about the employees being able to deduct checkoffs from their paycheck for political speech?

MR. COLLINS: If I may answer that question, Mr. Chief Justice? It's correct that where a law is based on employee behavior, that other kinds of scrutiny can be involved. [G]arcetti is, obviously if it's speech in your capacity of doing your job.

But the Hatch Act cases, [L]etter [C]arriers use the Pickering balance. That's not a mere reasonableness test by a long shot. That's a comparison as in the NT -- National Treasury Employees honoraria case, same situation, a balancing test between the harm that's perceived from allowing the speech and the benefits of the speech to the individual.
So, there can be that separate analysis, which if it were applied here, the State would also fail. The State, it says it only prevails under a reasonableness test. But none of those are near reasonableness analyses.

I think counsel for Respondent does a decent job explaining why this is not a Pickering or Garcetti case, but it might have been sufficient to say this type of case is more like a political affiliation case like Elrod, Rutan, and Branti.  The test from those case is akin to strict scrutinty: "[U]nless the government can demonstrate 'an overriding interest,' . . . 'of vital importance," requiring that a person's private beliefs conform to those of the hiring authority, his belief cannot be the sole basis for depriving him of continued public employment."  And although continued public employment is not on the line here, union-supporting employees are being also being penalized in public employment for their private belief about unionism.

11. It does not seem that Justice Kennedy is buying what Respondent's counsel is selling:

MR. COLLINS: . . . .Our position in no way dictates, in no way has the First Amendment dictating how a State is going to structure its government. It simply says, look, we begin with the proposition that normally this restriction on public speech would be heightened to public scrutiny.

JUSTICE KENNEDY: I -- I -- I'm not sure that's right. I'm not sure the State isn't saying we want to determine how our government is structured in this respect.

If Kennedy ends up seeing this as a government speech case - then Respondents lose. If he sees it as an unconstitutional condition case involving placing a burden on an employee's right to support the political activities of unions - then Respondents win.

In short, an evenly divided court, with Justice Kennedy seemingly at the center.  There is also some questioning that suggests that Justice Souter may not be on board with the educational association. I may be very well wrong on my tea-leaf reading here (and I hope I am), but I predict a 6-3 finding the state can prohibit union payroll deductions for local government units under the ever-expanding government speech doctrine.

PS