Teachers unions view proposals as a direct assault on First Amendment freedoms

Louisiana lawmakers are set to take up “payroll protection” bills that would prohibit public school officials from automatically deducting worker dues for political purposes.

The proposals figure into a larger national movement built around state initiatives that would prevent taxpayer dollars from being used to support political candidates and public policy proposals aligned with the preferences of organized labor.

There are two separate bills tentatively scheduled for a hearing before the House and Government Affairs Committee on Wednesday May 2nd. Rep. Bob Hensgens (R-Abbeville) is sponsoring (House Bill 88), which “prohibits political uses of public payroll withholdings and deductions” for public employees. Rep. Alan Seabaugh  (R-Shreveport) is sponsoring a separate, more broadly worded, version of the legislation that would prevent organizations with a history of political activism from receiving funds from public employees. Seabaugh’s (House Bill 1023) “prohibits any entity which engages in political activity from receiving public payroll withholdings or deductions.”

Top officials with the Louisiana Association of Educators (LAE) and the Louisiana Federation of Teachers (LFT) view the legislation as an attack on freedom of speech and freedom of association. They vow to vigorously oppose both measures.

“This is not a single attack against unions but any organization including banks, charities, insurance companies or any other entity that lobbies or tries to influence local or state propositions or elections or tax referendums or legislation,” Dr. Michael Walker-Jones, executive director of the LAE, said.  “This is an attempt to shut down the voice of public employees totally.”

But the idea that non-profit groups would be unduly influenced by the legislation is a “scare tactic” that being used by union leaders in an effort to build opposition, Brigitte Nieland, Vice President of Communications and Director of Education and Workforce for the Louisiana Association of Business and Industry (LABI), said in response. Nevertheless, she anticipates that an amendment will be added to reassure non-profit groups.

Contrary to what union leaders have argued, the payroll protection bill will actually safeguard First Amendment rights and protect taxpayer interests, Nieland continued.

“The union activities in many instances can be considered anti-taxpayer and yet the  taxpayer dollars are providing them with a steady stream of money to conduct their activities,” Nieland observed. “They are also involved with efforts that we think lower education standards. Teachers and other school employees who don’t support certain political activities should not be forced to pay for them.”

Even so, it is important to note that individual teachers and other school employees could continue to make voluntary contributions to political causes they support, Nieland added.

U.S. Supreme Court Weighs in Favor of Payroll Protection

The First Amendment argument union leaders are now circulating in Louisiana has already been rejected by the U.S. Supreme Court in the 2009 Ysursa v. Potcatello Education Association ruling, which upheld Utah’s law that forbids public employers from using payroll systems to collect political contributions, Rep. Hensgens points out.

“The Chief Justice of the United States addressed the First Amendment question very well in his ruling,” Hensgens observed. “We also have a provision in our state constitution that says public employment must be separated from political activities. An employee can certainly write a check and send money over to a labor organization, if they like, to support political activities, but they cannot ask state employees to collect that money for them. This bill is meant to close a loophole in existing law.”

In his majority opinion Chief Justice John Roberts wrote:

“The First Amendment prohibits government from “abridging the freedom of speech”; it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression. Idaho’s law does not restrict political speech, but rather declines to promote that speech by allowing public employee checkoffs for political activities.”

Moreover, under the 1988 Supreme Court decision in Communication Workers v. Beck, employees cannot be coerced into making donations to political causes. They also have the option to receive a refund for any dues that are spent on causes they do not support. But in practice, union officials have skirted these requirements by making it difficult for employees to request refunds, payroll protection proponents have argued.

The payroll protection proposals have attracted national attention. Mark Mix, president of National Right to Work (NRTW) has submitted a “floor note” to the Louisiana legislature in support of  Rep. Seabaugh’s bill.

“Payroll deduction of union dues provides Big Labor a ‘foot in the door’ to force compulsory unionism on all of Louisiana’s government employees,” he wrote. “Taxpayers should not be forced to pay for something Louisiana union officials should be doing for themselves. Union bosses want taxpayers to finance deductions because it saves them time and money doing what most other non-charitable organizations must do on their own.”

In a response addressed to state lawmakers, the Louisiana Federation of Teachers described the NRTW letter as “an outrageous and untrue attack on public sector unions and the thousands of public servants” the unions represent. The union also challenged the idea that there was any connection between payroll deduction and “compulsory unionism.”

Between the two pieces of legislation, Les Landon, director of public relations for the LFT, views Rep. Hensgens’s bill as being “less intrusive” than Rep. Seabaugh’s proposal.

“We have launched a campaign against both payroll deduction bills,” he said. “The bills, especially Rep. Seabaugh’s, would prohibit any entity which engages in political activity from receiving public payroll withholdings for deductions. But the payroll deduction is not a special privilege and it is not a burden to taxpayers. Because most members of the LFT and other public sector unions pay their dues through payroll deduction there is only one conclusion you can reach – this is an effort to try to shut out the unions and prevent them from having a voice.”

The bills are “aimed at the LFT and other public sector unions that oppose attacks on professional educators, the wholesale privatization of public services, and the destruction of the public retirement systems,” according to the Federation’s “Action Center” web site.

Thus far, seven states have passed their own version of paycheck protection legislation, but only five are now active. The Court of Appeals for the 10th District of Ohio has prevented that state’s law from going into effect. But, legal scholars have noted that Ohio court’s decision delivered in 1998 is in conflict with U.S. Supreme Court’s 2009 Ysura ruling. They are encouraging the Ohio state legislature to “re-enact” the payroll protection law.  Washington State, Michigan and Wyoming currently have paycheck protection laws that apply to all unionized workers. Idaho and Utah also have active laws but they only apply to public sector unions.

In January, the North Carolina legislature overrode a veto from Gov. Beverly Eaves “Bev” Perdue to pass SB 727, which would prevent the state from collecting dues from the North Carolina Association of Educators (NCAE). However, a judge has issued a temporary restraining order preventing the law from going into effect. The NCAE is arguing on procedural grounds that a midnight session of the General Assembly used to pass the bill was unconstitutional.

Meanwhile, the movement toward additional paycheck protection laws is active in other states.

The California Paycheck Protection Initiative (CPPI), which is modeled after previous efforts the unions defeated in 1998 and 2005, has already gathered enough signatures to appear on the ballot in November.  In Arizona, the legislature is considering (HB 2103), which calls for unions to get permission from their membership each year before subtracting dues from their paychecks.

Most recently, the Michigan Education Association (MEA) joined with the the American Federation of Teachers-Michigan, The American Federation of State, County and Municipal Employees Council 25 and Service Employees International Union Local 517, to file suit against HB 4929, the paycheck protection law Gov. Rick Snyder signed into law this past March. The Michigan law is similar to what Louisiana lawmakers are now proposing in that it prohibits public employee labor organizations from using member dues for political purposes without their permission.

The Heritage Foundation has published a report that shows paycheck protection laws have “a clear negative effect on public sector union contributions to candidates for state legislative offices.” The Heritage report concludes that laws reduce union campaign donations by about 50 percent.

Walker-Jones, the LAE executive director, said the proposed payroll legislation would dramatically undermine the rights and interests of public employees.

“Rep. Hensgen’s and Rep. Seabaugh’s bills are anti-labor, anti-public employee, and anti-commerce bills designed to tie the hands of organizations that collect membership dues via payroll deduction,” he argued.  “HB 88 and HB 1023 would require every member to have an alternative form of payment for health insurance, and other types of deductions, rather than allowing their membership to yearly roll over via payroll deduction.  The state has no authority to interfere with your private choice to have a preset amount automatically deducted from your paycheck.”

Hensgens disagrees.

“This bill should be viewed as a good government bill and as an ethics bill,” he said. “Taxpayer dollars should not be collected as dues to go toward political activities many of those taxpayers may not support. The state government should not be permitted to take sides.”

Kevin Mooney is the Capitol Bureau Reporter with the Pelican Institute for Public Policy. He can be reached at kmooney@pelicanpolicy.org and followed on Twitter.