Ysursa and Right To Work States

If the Wyeth case had to do with a long-standing and bitter conflict between pharmaceutical manufacturers and patients injured by their products, the Ysursa case has to do with another long-standing conflict in American life: that between unions and management. In particular this case deals with aspects of a law prohibiting political contributions through payroll deductions in a "right-to-work" state. The question is whether the state legislature (ID in this case) may constiutionally pass a law prohibiting employers from making payroll deductions on behalf of unions for "political" purposes. Does this violate the free speech provisions of the First Amendment? The lower courts (District of Idaho and Ninth Circuit) said it does--for union employees of local governmental units and for the private sector, though not for state employees. The Supremes will have to decide if this judgment is correct.

Here is a web site showing the 22 right-to-work states in the US. As the site explains: a "Right to Work law secures the right of employees to decide for themselves whether or not to join or financially support a union. However, employees who work in the railway or airline industries are not protected by a Right to Work law, and employees who work on a federal enclave may not be." The map of right-to-work states shows that, with the exception of Iowa and ND (which are right-to-work states), all right to work states have the death penalty. There seems to be something "in the air" or in the mentality of that puts the two together. Indeed, I think that if you traced executions in the last 30 years in America, more than 90% have taken place in the 22 right to work states.

The Specifics of the Case

This case has to do with a modern amendment (2003) to a mid-1980s right to work law in Idaho. Well, let's give the basics of that 1985 law, as well as the 2003 amendments to understand the issue. The 1985 Act declared as state policy that:

"[t]he right to work shall not be infringed or restricted in any way based on membership in, affiliation with, or financial support of a labor organization or on refusal to join, affiliate with, or financially or otherwise support a labor organization," ID Code sec. 44-2001.

The law further prohibited any requirement for the payment

"of dues, fees, assessments, or other charges of any kind or amount to a labor organization" as a condition of employment, ID Code sec. 44-2003.

The 1985 law expressly authorized employers, however, to deduct from employee compensation union dues, fees, assessments or other charges for payment to a labor organization if pursuant to a signed authorization by the employee. A 1995 amendment to the law provided that this last section applied to

"all employment, private and public, including employees of the state and its political subdivisions," ID Code sec. 44-2011.

The law was further developed by provisions in 2003 that are the subject of this lawsuit. In that Act (the "Voluntary Contributions Act" or VCA), codified at ID Code secs. 2601-2605, several provisions were added that in the lawsuit even the State agreed were unconstitutional. Indeed, the State agreed that almost the entire law was bad. The disputed provision in this case, however is this:

"Deductions for political activities as defined in chapter 26, title 44, Idaho Code, shall not be deducted from the wages, earnings or compensation of an employee," ID Code sec. 44-2004(2).

The question that led to this "big lawsuit" is whether the just bolded statute is constitutional or whether it trenches on (a big legal term!) free speech in violation of the First Amendment.

A Little More On the Law

We can see how the 2003 law pushes the envelope even more than the 1985 law. Whereas the former only declared ID to be a right to work state and required written employee authorization in order to allow deductions from payroll for union activities, the 2003 law sought to prohibit absolutely a certain form of deduction--those that would go for political activity. This would reach not only to deductions that would go to labor unions, it would seem, but to any political activity for anyone.

Well, there were also other provisions of the VCA which imposed restrictions on labor organization contributions for political activities. As the Petitioner's Petition for Certiorari says:

"These restrictions included establishing a separate segregated fund to finance political activities; imposing disclosure requirements on solicitations for contributions to the fund; prohibiting the use of union dues for political activities or to defray the fund's administrative costs; and, consistent with the amendment to § 44-2004, requiring all employee contributions to the fund to be made by the labor organization's members directly and not to be remitted by an employer. Separate segregated funds were further required to register as political committees and to file financial reports under Idaho's election campaign statute. Idaho Code § 44-2605," Petition for Certiorari, p. 6.

Indeed, this law was a sign that the "employers" really had the unions by the vital organs.

The Unions Strike Back

Of course the Unions couldn't accept this one "sitting still," and so they brought suit following the passage of the 2003 law to determine its constitutionality. Over several years and suits, the issue focused on the constitutionality of subsection (2) above. The US District Court for the District of Idaho concluded that subsection (2) violated the First Amendment for non-state employees. The central point of the court's argument was that unless the state government, as it were, "subsidizes" the activity it seeks to prohibit, it cannot control the content of speech. So, since the court concluded that having one's payroll deductions going to political activities was a form of "speech," it concluded that the law unlawfully prohibited protected speech as relates to non-state employees.

The Ninth Circuit affirmed (504 F3d 1053 (2007)). While not relying as heavily on the "subsidy" doctrine, the Ninth Circuit held that the attempt of the state legislature to control a "public forum" reached further than its constitutional authority allowed. The court concluded, along with the district court, that the state could prohibit political deductions from paychecks of state employees but not from employees of local governments or employees in the private sector.

Conclusion

A history of union excesses in the 1950s - 1970s, followed by the reaction through right to work laws in the 1980s and 1990s, would be fascinating reading. If we really absorb this history, we see the present case as simply the continuation of the battle on a very technical front. But the battle will continue, to be sure, until we come to some kind of national consensus on whether we really see unions as something good or bad. I think that consensus will develop when we come to an agreement on whether big pharmaceutical companies (as described in Wyeth) are good or bad.

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