Metropolitan News-Enterprise


Tuesday, October 9, 2007


Page 1


Court Strikes Down Idaho Law on Paycheck Deductions for Politics




An Idaho law that forbids voluntary deductions from local government employees’ paychecks to pay for political activities is unconstitutional, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The panel ruled that a provision of the Idaho Voluntary Contributions Act, most of which was previously struck down after the state conceded that some of its terms violated free speech rights, “violates the First Amendment because it is a content-based law for which the State officials assert no compelling justification.”

Idaho’s legislature approved the act in 2003. Among other things, it outlawed unions from using dues for political activities, requiring them to pay for political activities out of segregated funds; restricting their fundraising; and banned all payroll deductions for union political activities.

Unions challenged the law, and, after a similar Utah law was declared unconstitutional, the Idaho attorney general conceded that the payroll deduction ban was unconstitutional as applied to private employers and that other challenged provisions were unconstitutional in their entirety. The state, however, defended the payroll deduction ban as applied to state and local governments.

Law Partially Upheld

U.S. District Judge B. Lynn Winmill of the District of Idaho subsequently ruled that the payroll law was valid with respect to the state as an employer, but could not be applied to cities, school districts, or other local government entities.

The state appealed the latter portion of the ruling. The unions did not cross-appeal.

Senior Judge A. Wallace Tashima, writing for the Ninth Circuit, said the district judge was correct.

While the law is valid as to the state because of its right to control its own payroll systems, Tashima explained, the state does not “own, administer or control” the payroll systems of Idaho’s  local governments, and has not offered a sufficient justification for its restrictions on the political activity of local government employees.

“This restriction on voluntary political contributions burdens political speech, which is protected by the First Amendment....,” Tashima wrote.

While the law does not ban political fundraising by unions, the judge explained, it does hamper their ability to engage in that constitutionally protected activity. Like other limitations on free speech, Tashima said, the VCA can only be upheld to the extent that its restrictions serve a compelling governmental interest that cannot be met by less intrusive means.

Inadequate Alternative

Tashima agreed with the district judge, who found that the alternative means allowed by the statute—direct fundraising—is inadequate because many members do not wish to donate electronically because of the risk of identity theft, because face-to-face solicitation takes too much time, and because the total amount raised would significantly diminish.

The appellate jurist also concluded that the law was content-discriminatory, since it prohibits payroll deductions for politics, but not for other activities, and that the state had conceded that the law could not survive strict scrutiny.

Tashima rejected the state’s argument that the statute should be upheld under the “nonsubsidy doctrine”—the principle that the government need not pay for speech with which it disagrees. He agreed with the district judge that the doctrine applies with respect to state employees, since the state incurs an expense for the administration of payroll deduction programs, but noted that the state does not subsidize the payroll deduction systems of local governments.

He further rejected the state’s argument that local government workplaces and/or payroll systems are nonpublic fora over which the state may exert control.

“The statutes...suggest...that the State has granted units of local government the right to own and control their own property, independent of the State’s control,” Tashima wrote.

Senior Judge William C. Canby Jr. and Judge Consuelo M. Callahan joined in the opinion.

The case is Pocatello Education Association v. Heideman, 06-35004.


Copyright 2007, Metropolitan News Company