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 employees.

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 Act—the 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.