Toledo Area AFL-CIO Council v. Pizza

• Decision Date: 19 August 1998
• Docket Number: No. 97-3298,AFL-CIO,97-3298
• Citation: 154 F.3d 307
• Parties: 159 L.R.R.M. (BNA) 2030 TOLEDO AREACOUNCIL, et al., Plaintiffs-Appellees, v. Anthony G. PIZZA, et al., Defendants, Bob Taft and The Ohio Elections Commission, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 307

154 F.3d 307

159 L.R.R.M. (BNA) 2030

TOLEDO AREA AFL-CIO COUNCIL, et al., Plaintiffs-Appellees, v. Anthony G. PIZZA, et al., Defendants Bob Taft and The Ohio Elections Commission, Defendants-Appellants.

No. 97-3298.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 6, 1998.

Decided Aug. 19, 1998.

Andrew Nickelhoff (argued and briefed), Eileen Nowikowski, Sachs, Waldman, O'Hare, Bogas & McIntosh, Detroit, Michigan; Stewart R. Jaffy, Stewart Jaffy & Associates, Columbus, Ohio, for Toledo Area AFL-CIO Council.

Andrew Nickelhoff (argued and briefed), Eileen Nowikowski, Sachs, Waldman, O'Hare, Bogas & McIntosh, Detroit, Michigan; Stewart R. Jaffy, Stewart Jaffy & Associates, Columbus, Ohio; Jennifer L. Brunner, Brunner & Brunner, Columbus, Ohio, for Ohio State AFL-CIO, American Federation of State County and Municipal Employees, Seafarer's International Union of North America and William A. Burga.

Andrew Nickelhoff (argued and briefed), Sachs, Waldman, O'Hare, Bogas & McIntosh, Detroit, Michigan; Stewart R. Jaffy, Stewart Jaffy & Associates, Columbus, Ohio; Jennifer L. Brunner, Brunner & Brunner, Columbus, Ohio, for Dal Lawrence.

David M. Gormley (briefed), Office of the Attorney General of Ohio, Columbus, Ohio; Jeffrey S. Sutton (argued and briefed), State Solicitor, Columbus, Ohio, for Anthony Pizza, Bob Taft and Ohio Elections Commission.

Christine A. Reardon (briefed), Kalniz, Iorio & Feldstein, Toledo, Ohio; Donald J. McTigue (briefed), McTigue & Brooks, Columbus, Ohio, for Ohio Education Association and United Automobile Workers of America Regions 2 and 2B.

Before: MERRITT, KENNEDY, and BOGGS, Circuit Judges.

BOGGS, J., delivered the opinion of the court, in which KENNEDY, J., joined. MERRITT, J. (pp. 327-28), delivered a separate dissenting opinion.

OPINION

BOGGS, Circuit Judge.

Several labor unions and union officials ¹ brought a facial challenge to various portions of Ohio's Campaign Finance Reform Act shortly before it was to take effect on August 23, 1995. The United States District Court for the Northern District of Ohio preliminarily enjoined many of the challenged provisions of the Act. The district court later converted this preliminary injunction into a permanent injunction, finding several provisions of the Act unconstitutional. The State of Ohio filed a timely appeal challenging the district court's ruling as to four subsections of the Act:

(1) O.R.C. § 3517.09(C), requiring that whenever corporations and unions solicit employees and members for contributions to political causes ², they inform them that no reprisal or benefit will result from their response to such solicitation;

(2) O.R.C. § 3517.082(D), imposing a four times-a-year limit on corporate and union solicitations of employees and members for donations to their political action committees ("PACs"), requiring anyone soliciting employees or union members for donations for such PACs to give the disclaimer required by § 3517.09(C), and requiring all such solicitations to be in writing;

(3) O.R.C. § 3599.031(H) banning public employers from administering automatic payroll deductions ("checkoffs") for political purposes; and

(4) O.R.C. § 3599.031(I) applying the wage checkoff ban to supersede clauses in pre-existing collective bargaining agreements granting public employees the right to checkoffs for certain political causes.

On appeal, the State of Ohio contends that these four provisions do not violate the plaintiffs' rights under the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, or the Contracts Clause of Article I, Section 10 of the United States Constitution and, therefore, should not be enjoined. We agree with the State's argument that O.R.C. § 3599.031(H) does not violate the constitutional rights of the plaintiffs-appellees. ³ However, we affirm the district court's ruling that O.R.C. §§ 3517.082(D) and 3517.09(C) are unconstitutional, and we hold that subsection (I) of O.R.C. § 3599.031 violates the Contracts Clause and cannot be enforced to abrogate the terms of pre-existing collective bargaining agreements granting public employees the right to make political contributions through checkoffs.

I

All three of the provisions at issue in this case relate to political contributions by corporate employees and labor union members and the solicitation of such contributions. Ohio Revised Code section 3517.09(C) states:

An employer or labor organization that, directly or through another person, solicits an employee of the employer or a member of the labor organization for a contribution to a candidate, campaign committee, political action committee, legislative campaign fund, or political party shall inform the employee or member at the time of the solicitation that making a contribution is voluntary and that a decision of the employee or member to make a contribution or not to make a contribution will not benefit the employee or member or place the employee or member at a disadvantage with respect to his employment by the employer or his membership in the labor organization.

Ohio Revised Code section 3517.082(D) provides:

Solicitations of contributions pursuant to division (B) ⁴ of this section from employees of a corporation or members and employees of a labor organization other than executive and administrative employees of a corporation or officers and executive and administrative employees of a labor organization shall be in writing and shall not be made more than four times during each calender year. Any person who solicits any employee of a corporation or member or employee of a labor organization for a contribution to a political action committee established or administered by the corporation or labor organization under division (A)(1) of this section shall inform the employee or member at the time of the solicitation that he may refuse to make a contribution without suffering any reprisal.

Ohio Revised Code sections 3599.031. (H) & (I) provide:

(H) No public employer shall deduct from the wages and salaries of its employees any amounts for the support of any candidate, separate segregated fund, political action committee, legislative campaign fund, political party, or ballot issue.

(I) In addition to the laws listed in division (A) of section 4117.10 of the Revised Code that prevail over conflicting agreements between employee organizations and public employers, this section prevails over any conflicting provisions of agreements between labor organizations and public employers entered into pursuant to Chapter 4117 of the Revised Code.

II

The legislation challenged in this case purports to be the result of efforts by Ohio legislators to respond to public outcry for "campaign finance reform."⁵ See United Auto Workers Local 1112 v. Philomena, 1998 WL 110634 at * 3-4 (Ohio App. 1998), appeal not allowed by 81 Ohio St.3d 1508 (July 1, 1998); Lee Leonard, Voinovich OKs Finance Reform Plan; Those Who Wanted Stricter Measures Give Approval, COLUMBUS DISPATCH, May 25, 1995, at 6C. The popularity of the challenged measures does not, however, affect this court's analysis of their constitutionality. No matter how popular these efforts are, we must examine them for conformity with the Constitution to insure that the rights there preserved are not sacrificed for "an expedient solution to the crisis of the day." New York v. United States, 505 U.S. 144, 187, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). We must be especially vigilant when, as in this case, the challenged laws implicate "an area of the most fundamental First Amendment activities"--discourse about the merits of political candidates and public issues. Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). Our nation has a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). This is because, as Justice Holmes so eloquently explained, "the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market...." Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting). With these principles in mind, we turn to examine the provisions at issue in this appeal.

III

A. Section 3517.09(C) is Unconstitutional

Section 3517.09(C) regulates solicitations of political contributions by corporations and unions from employees and union members. It requires that union and corporate solicitors inform employees of corporations and members of unions, at the time of a solicitation for a political cause, that their decision to contribute or not to contribute will neither benefit nor disadvantage them with respect to their union membership or employment with the corporation. This statement is required whether the solicitation is made directly or indirectly through another person. The district court held that this provision impermissibly impinged on the political free speech rights of those subject to it. We agree.

The State of Ohio characterizes section 3517.09(C) as a permissible regulation intended to foster the state's interest in ensuring that political contributions by corporate employees and labor union members are voluntary. Ohio analogizes this prophylactic measure to 2 U.S.C. § 441b(b)(3)(C) ⁶. The state also argues that it is a measure necessary to effectuate the right of workers to refuse to contribute to political causes with which they disagree, as recognized in Abood v. Detroit Board of Education, 431 U.S. 209, 236, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977).

We cannot agree with the state's characterization of section 3517.09(C). A law mandating speech "that a speaker would not otherwise make necessarily alters the content of the speech" and is a "content-based regulation" subject to strict scrutiny. Riley v....