Andrew M. Siff*
In Toledo Area AFL-CIO v. Pizza, 154 F.3d 307 (6th Cir. 1998),
the Sixth Circuit disagreed with the Ohio courts concerning the
constitutionality of a provision of the Ohio Campaign Finance Reform
Act banning public employers from administering wage checkoffs for
political causes. This conflict created an ideal opportunity to
seek Supreme Court review of campaign finance reform. The Pizza
decision also provides a thoughtful exegesis of the fundamental
First Amendment principles.
The Ohio Legislature passed the Campaign Finance Reform Act in
1995 to address public concerns that state elections had become
"competitions for dollars rather than contests of ideas."
The Act contained several provisions aimed at restoring public confidence
in the electoral process and ameliorating perceived abuses of the
existing campaign financing system. These included provisions requiring
people soliciting corporate employees and union members for union
or corporate PACs to state that no harm or benefit would result
from a person's response to a solicitation. The Act also imposed
a four-times-a-year limit on union and corporate solicitations of
employees and members for PAC donations and required that all such
solicitations be made in writing. Another provision of the Act prohibited
public employers from administering payroll deductions or "checkoffs"
for political causes to which public employees wished to contribute.
Several labor organizations filed suit in Ohio state court alleging
that the Act's key provisions were facially invalid under the Ohio
Constitution. At about the same time, other unions filed a similar
suit in Federal District Court alleging that the Act violated the
United States Constitution. Both cases challenged the constitutionality
of the wage checkoff ban because checkoffs from the wages of public
employees account for about 75% of the contributions made to the
PACs operated by the Ohio unions that represent the state's public
The state court litigation resulted in a ruling by the Ohio Court
of Appeals declaring several key provisions of the Act, including
the checkoff ban, unconstitutional. United Autoworkers, Local 1112
v. Philomena, 121 Ohio App.3d 760, appeal not allowed by 82 Ohio
St.3d 1450 (1998). In reaching this decision, the Ohio Court of
Appeals relied on federal case law interpreting the First Amendment
and the Equal Protection Clause of the United States Constitution.
Ohio courts have held that the state's First Amendment and Equal
Protection Clause provide the same protection as their federal counterparts.
Since the state court's institutional ruling relied on federal law
and did not provide an adequate and independent state ground for
invalidating the Act, the federal courts were free to make their
own judgment as to whether the Act violated the First Amendment
or Equal Protection Clause of the United States Constitution. Eventually,
a federal district court declared several provisions of the Act,
including the wage checkoff ban, unconstitutional in an opinion
that mirrored the reasoning of the Philomena decision.
One month after the Ohio Supreme Court refused to review the Philomena
decision, a divided panel of the Sixth Circuit issued its opinion
in Toledo Area AFL-CIO Council v. Pizza. Judge Danny J. Boggs, writing
for the court and joined by Judge Cornelia Kennedy, agreed with
the federal district court and the Philomena Court that the Act's
disclaimer provisions, four-times-a-year limit and in-writing requirement
were content-based restrictions on political speech that violate
the First Amendment. The Pizza opinion, however, disagreed with
the Philomena decision (and the federal district court opinion that
echoed it) as to the constitutionality of the wage checkoff ban.
Judge Boggs' opinion takes a different view of the checkoff ban
by rejecting the Philomena Court's assumption that the state's refusal
to continue to administer checkoffs somehow infringes on the protected
First Amendment rights of public employees and warrants strict equal
protection scrutiny. The Sixth Circuit based its ruling on a crucial
distinction that eluded the other courts that reviewed the Actthe
First Amendment is a shield against government interference with
a person's political expression rather than a sword for carving
out positive entitlements to government assistance in the exercise
of constitutionally protected speech. In the words of Judge Boggs,
the Ohio Court of Appeals failed to distinguish between "what
citizens and the associations they form may do to support and disseminate
their views with what citizens and groups they form may require
the government to do in this regard." Pizza, 154 F.3d at 319.
This flaw in the Philomena Court's equal protection analysis was
a result of unwarranted reliance on Austin v. Michigan Chamber of
Commerce, 494 U.S. 652, 666 (1990), and a fundamental misconception
of the First Amendment. Although the Ohio Court of Appeals relied
on Austin for the proposition that the wage checkoff ban infringes
protected First Amendment rights and is therefore subject to strict
scrutiny, Austin is clearly inapposite. In Austin, the Supreme Court
upheld a Michigan law prohibiting corporations from making political
contributions or direct political expenditures straight out of their
corporate treasuries. Austin, 494 U.S. at 666. The law required
corporations to make all state political contributions through PACs.
The Supreme Court applied strict equal protection scrutiny because
the state was hindering corporations, but not labor unions or media
organizations, from exercising their constitutionally protected
right to make direct political expenditures and contributions as
recognized in Buckley v. Valeo, 424 U.S. 1, 14 (1976). In Austin,
the state had not refused to assist in the exercise of the corporations'
rights; instead it was actually constricting their rights, muzzling
them. Since the law clearly infringed on corporations' First Amendment
rights as they are commonly understood, the Supreme Court applied
strict equal protection scrutiny to the classification limiting
the ban to corporations but not other similarly situated entities.
The Sixth Circuit realized that, in contrast to the restriction
in Austin, the wage checkoff ban does not infringe a speaker's right
to engage in any sort of protected speech that he would be free
to make in the absence of state regulation. It simply does not implicate
the sort of "negative rights" the First Amendment was
intended to protect. Payroll deductions constitute state assistance
with the exercise of free expression. The state's refusal to facilitate
the exercise of First Amendment rights is fundamentally different
from restricting the exercise of those rights by muzzling or otherwise
hindering a speaker from doing what he would be free to do if left
to his own devices. The Sixth Circuit summarized this point nicely:
[There is no] doubt that wage checkoffs are a great tool for maximizing
political contributions from public servants. But, in the absence
of the public employers administering checkoffs for political causes,
all political candidates and funds, regardless of their persuasion,
are left with at least the same range of options in deciding how
to tap this sector of the population for contributions as they would
have had if the state had chosen not to allow any employers to administer
wage checkoffs. And more to the point, public employees are left
with the same range of options in deciding how best to pool their
resources in furtherance of a common cause.
Pizza, 154 F.3d at 321.
Because the wage checkoff ban does not impair a fundamental right
and public employees are not a "suspect class," the Sixth
Circuit was absolutely correct in applying rational basis scrutiny
to the checkoff ban. Not surprisingly, the Sixth Circuit found this
standard satisfied by the state's asserted interest in "removing
partisan politics from places of public employment."
It is unfortunate that the Ohio courts did not appreciate the distinction
between positive rights mandating state action and negative rights
protecting what people can do with their own resources and abilities.
Now, in the aftermath of Pizza, there are two directly conflicting
but enforceable court orders concerning the constitutional validity
of the checkoff ban. Perhaps even more unfortunate was that the
State of Ohio's failure to file a petition for certiorari and take
advantage of a golden opportunity to have the United States Supreme
Court weigh in on campaign finance reform. Despite the unfortunate
ruling in Philomena and the State's failure to take advantage of
the conflict between the Ohio courts and the Sixth Circuit, the
litigation over the Ohio Campaign Finance Reform Act did leave conservatives
and libertarians with something to cheer about. It resulted in a
decision that is an eloquent explication of core First Amendment
values that will hopefully serve to remind other courts of the timeless
first principles that permeate our Constitution.
*Andrew Siff served a law clerk to Judge Danny J. Boggs of the
United States Sixth Circuit Court of Appeals and is now with the
law firm of Wiley, Rein and Fielding in Washington, D.C. The views
expressed in this article do not necessarily reflect the views of
Wiley, Rein & Fielding.