Oral argument transcript
WASHINGTON — Supreme Court justices yesterday questioned whether a state should be able to prohibit employers from using state money to influence employees' views on unions in their workplace.
The U.S. Chamber of Commerce and the Bush administration argue that California is trying to silence employers from weighing in on union organization efforts. They say that position isn't permitted by federal labor law, which allows employers to be involved as long as they don't threaten reprisals.
The outcome of the case, Chamber of Commerce of United States v. Brown, could affect attempts by other states to restrict use of state money for union-related activities.
California contends that its 2000 law, the first of its kind nationally, simply seeks to ensure that the state doesn't subsidize an employer's pro- or anti-union activities, allowing California to maintain a neutral position in labor disputes.
California's law has been followed by similar attempts in other states, including New York, which passed a more limited version. Union activists and pro-union lawmakers elsewhere have been waiting to see the outcome of the California case before deciding how to proceed.
Justice Antonin Scalia ridiculed the notion that California's law is neutral.
"I think the reason you're not paying for this activity is because you don't like this activity," Scalia declared.
"That's not true," interjected attorney Michael Gottesman, a Washington-based lawyer arguing on behalf of California Attorney General Jerry Brown, who also is the state's former governor.
"I call that regulating," Scalia said.
Gottesman disagreed. "The taxpayer's money should not be spent supporting one side and not the other in these disputes," he said. Employees don't have access to state money for unionization activities, California argues in its briefs, so employers shouldn't either.
Chief Justice John Roberts also seemed to question the notion that California's law is neutral when he noted that "precious few" employers take the side of unions.
California seemed to get support from Justices Ruth Bader Ginsburg and Stephen Breyer who both questioned why California shouldn't be able to determine how its money is spent.
California is saying, in effect, "Go ahead, speak, speak, just not on our nickel," said Breyer.
California's law does not prohibit employers from influencing union activities, just from using state funds to do so, so that employers would have to segregate their accounts — one of several complications created by the law that justices noted have yet to be worked out.
Ginsburg remarked several times that Congress has passed laws limiting federal use of money for union activities, so why shouldn't California do the same.
Just because Congress can do something doesn't mean states can, responded Willis J. Goldsmith, representing the Chamber of Commerce of the United States.
"The state has no business making labor policy," Goldsmith said. "This statute is anything but neutral."
The author of the 2000 California law, Democratic state Sen. Gil Cedillo, issued a press release earlier this week noting that the law, which was supported by California labor unions, "began as a means to prevent unscrupulous contractors from using state money to block unionization by California janitors."
The Chamber challenged the law in 2002 and won in federal court. A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco agreed, but the full 9th Circuit overturned the Chamber's position in 2006, determining that California's law was not pre-empted by federal statute.