Progressive Democrats v. Rob Bonta

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PROGRESSIVE DEMOCRATS FOR No. 22-15323

SOCIAL JUSTICE, a Democratic

Club Chartered by the Santa Clara D.C. No. 4:21-cv-

County Democratic Party; KRISTA 03875-HSG

HENNEMAN; CARLIE WARE,

Plaintiffs-Appellants, OPINION

v.

ROB BONTA, in his official capacity

as Attorney General for the State of

California,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of California

Haywood S. Gilliam, Jr., District Judge, Presiding

Argued and Submitted March 29, 2023

San Francisco, California

Filed July 19, 2023

Before: Ronald M. Gould, Marsha S. Berzon, and Sandra

S. Ikuta, Circuit Judges.

2 PROGRESSIVE DEMOCRATS V. BONTA

Opinion by Judge Berzon;

Concurrence by Judge Ikuta

SUMMARY *

Civil Rights/First Amendment

The panel reversed the district court’s summary

judgment for the State of California in an action alleging that

California Government Code § 3205 violates the First

Amendment and Equal Protection Clause by prohibiting

local government employees from soliciting political

contributions from their coworkers while state employees

are not similarly barred.

The panel analyzed the State’s decision to restrict the

expression of certain government employees—but not other

government employees—under the First Amendment. The

panel held that Section 3205 does not survive constitutional

scrutiny under either the “closely drawn” standard from

McCutcheon v. FEC, 572 U.S. 185 (2014), or the balancing

test articulated in Pickering v. Board of Education, 391 U.S.

563 (1968), and United States v. National Treasury

Employees Union, 513 U.S. 454 (1995).

The panel held that the speculative benefits that Section

3205 may provide the Government were not sufficient to

justify the burden on plaintiffs’ expression. The State

therefore did not meet its burden of justifying the differential

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

PROGRESSIVE DEMOCRATS V. BONTA 3

ban under the First Amendment. None of the materials

before the State at the time of Section 3205’s enactment

supported the statute’s distinction between local and state

workers; the State offered no affirmative evidence that intra-

governmental solicitations have coerced government

employees into financially supporting political candidates or

caused government employees to perform their duties in a

partisan manner; Section 3205 did not account for agency

size which undercut the State’s argument that the statute

was properly tailored to address the government’s interest;

and Section 3205 was underinclusive as a means of limiting

the actuality and appearance of partisan behavior by public

employees. Because the panel concluded that Section 3205

did not survive First Amendment scrutiny, it did not reach

plaintiffs’ Equal Protection challenge.

Concurring in the result, Judge Ikuta stated that Section

3205 violates the First Amendment as a restriction on

political speech that is not justified by California’s asserted

governmental interests. But because California did not enact

the law in its capacity as an employer, but rather in its

capacity as a sovereign, the panel should have analyzed the

statute under ordinary First Amendment principles and

applied strict scrutiny to determine that California had not

demonstrated either a compelling interest or narrowly

tailored means.

COUNSEL

Charles Gerstein (argued), Gerstein Harrow LLP,

Washington, D.C.; Jason S. Harrow, Equal Citizens, Los

Angeles, California; for Plaintiffs-Appellants.

4 PROGRESSIVE DEMOCRATS V. BONTA

Keith L. Wurster (argued), Deputy Attorney General; Mark

Beckington, Supervising Deputy Attorney General; Thomas

S. Patterson, Senior Assistant Attorney General; Rob Bonta,

Attorney General of California; Office of the California

Attorney General; Sacramento, California; for Defendant-

Appellee

OPINION

BERZON, Circuit Judge:

Under California law, local government employees may

not solicit political contributions from their coworkers, but

state government employees may. A political organization

and two of the organization’s officers challenged the statute

responsible for this distinction, California Government Code

§ 3205, as violative of the First and Fourteenth

Amendments. Because the statute’s discrimination against

local employees is not justified under any arguably

applicable standard, we hold that Section 3205 is

unconstitutional and reverse the district court.

I.

A.

Section 3205 generally prohibits local government

employees in California from soliciting political

contributions from their coworkers. It provides in relevant

part:

(a) An officer or employee of a local agency

shall not, directly or indirectly, solicit a

political contribution from an officer or

PROGRESSIVE DEMOCRATS V. BONTA 5

employee of that agency, or from a person on

an employment list of that agency, with

knowledge that the person from whom the

contribution is solicited is an officer or

employee of that agency. . . .

(c) This section shall not prohibit an officer

or employee of a local agency . . . from

requesting political contributions from

officers or employees of that agency if the

solicitation is part of a solicitation made to a

significant segment of the public which may

include officers or employees of that local

agency.

(d) Violation of this section is punishable as

a misdemeanor. The district attorney shall

have all authority to prosecute under this

section.

State government employees are not similarly barred

from soliciting contributions from their colleagues. There

are limitations on their political fundraising: they may not

solicit during work hours, and they may not use state

resources, their titles, or their positions when fundraising.

See Cal. Gov’t Code § 19990(a)–(b). But there is no state

law or regulation that categorically bars all forms of political

solicitations among state workers.

This distinction between local and state employees’

solicitations rights did not always exist. In 1913, the

California State Legislature enacted legislation banning state

employees from soliciting contributions from state civil

service employees. See 1913 Cal. Stat. 1035, 1046–47. Five

decades later, the Legislature enacted a law prohibiting

6 PROGRESSIVE DEMOCRATS V. BONTA

political solicitation among local government employees.

See 1963 Cal Stat. 4078, 4079. So between 1963 and 1976,

both state and local workers were forbidden from soliciting

political contributions from their coworkers. Compare 1913

Cal. Stat. 1035, 1046–47, and 1963 Cal Stat. 4078, 4079,

with 1976 Cal. Stat. 6352, 6353.

This era of parity did not last. Shortly after the

Legislature enacted its solicitation ban for local employees,

the California Supreme Court decided several cases limiting

the government’s ability to restrict the political activity of

public workers. See, e.g., Fort v. Civ. Serv. Comm’n., 61 Cal.

2d 331 (1964); Bagley v. Wash. Twp. Hosp. Dist., 65 Cal. 2d

499 (1966). Then, in 1976, State Assemblyman John

Vasconcellos introduced Assembly Bill 4351, a bill to

loosen certain restrictions on the political speech of

government employees. See A.B. 4351, 1975–76 Leg., Reg.

Sess. (Cal. 1976) (as introduced).

As initially drafted, AB 4351 repealed the State’s bans

on intra-governmental solicitations for state and local

employees, treating both sets of workers identically. Id. But,

in the end, AB 4351 was amended to repeal the intra-

governmental solicitation ban for state employees only and

to reenact the prohibition for local employees, in a

renumbered Section 3205. See A.B. 4351, 1975–76 Leg.,

Reg. Sess. (Cal. 1976) (as amended in Senate, Aug. 6, 1976).

Marty Morgenstern, Governor Jerry Brown’s Director of the

Office of Employee Relations, could “find no reason for this

unique treatment of State employees, vis-a-vis local agency

employees” and “recommend[ed] against signing this bill, at

least until we could determine the rationale for this

distinction.” Memorandum from Marty Morgenstern,

Director, Office of Emp. Rels., to Jerry Brown, Governor,

PROGRESSIVE DEMOCRATS V. BONTA 7

State of Cal. (Sept. 22, 1976). Governor Brown nonetheless

signed the bill into law. See 1976 Cal. Stat. 6352, 6353. 1

B.

Plaintiffs Progressive Democrats for Social Justice, a

political organization, and Krista Henneman and Carlie

Ware, two officers of that organization (collectively

“PDSJ”), sued to challenge the constitutionality of Section

3205. Henneman and Ware were deputy public defenders for

Santa Clara County who supported Sajid Khan, a fellow

county deputy public defender, in his campaign to become

district attorney. They wanted to solicit contributions for

Khan from other county employees, particularly other public

defenders, outside of work hours and without using county

resources or titles. 2 But Henneman and Ware determined, in

accordance with a memorandum from Santa Clara County

counsel, that individually soliciting donations from their

coworkers would violate Section 3205. They therefore did

not engage in the solicitations and instead filed this lawsuit

challenging Section 3205 as unconstitutional. The complaint

alleged that California’s law violated the First Amendment

and Equal Protection Clause by banning political

solicitations among local employees but not among state

employees.

After filing suit, PDSJ moved for a temporary restraining

order enjoining the enforcement of Section 3205, which the

district court denied. The parties then cross-moved for

1

In 1995, the Legislature designated violations of Section 3205 as

misdemeanors and authorized district attorneys to prosecute such

violations. See 1995 Cal. Stat. 5109.

2

At the times of the complaint and motions for summary judgment,

neither Henneman nor Ware were employed as supervisors by Santa

Clara County.

8 PROGRESSIVE DEMOCRATS V. BONTA

summary judgment on undisputed facts, including

declarations from Henneman and Ware stating their desire

to solicit their colleagues outside work hours and without

using government resources, and the district court granted

the State’s motion for summary judgment.

On PDSJ’s First Amendment claim, the court

determined that the balancing test set forth in Pickering v.

Board of Education, 391 U.S. 563 (1968), provided the

relevant framework. Weighing the “local employees’ First

Amendment rights against the government’s justification for

treating them differently from members of the public,” the

court found “adequate justification” for Section 3205’s

restriction of local employees’ solicitation rights. With

respect to PDSJ’s Equal Protection claim, the court declined

to resolve the parties’ dispute over the proper level of

scrutiny. Rather, Section 3205 withstood PDSJ’s challenge

even under a “heightened standard,” the court decided,

because state and local employees were not “similarly

situated” and, even if they were, the statute was closely

drawn to support the important state interest of reducing the

existence and appearance of corruption and workplace

coercion. This appeal followed. 3

3

Although the campaign for which PDSJ sought to solicit contributions

has ended, no party has argued that this appeal is moot. The Supreme

Court has often concluded that litigation challenging election regulations

is not moot even when the election at issue is complete, because such

cases can “fit comfortably within the established exception to mootness

for disputes capable of repetition, yet evading review.” FEC v. Wis. Right

to Life, Inc., 551 U.S. 449, 462 (2007); see also Davis v. FEC, 554 U.S.

724, 735–36 (2008). Here, Henneman and Ware have declared that they

would solicit campaign contributions from other county employees for

future elections were they not prohibited from doing so by California

law. So the case is not moot.

PROGRESSIVE DEMOCRATS V. BONTA 9

II.

“Discrimination in the First Amendment context has

sometimes been characterized as a violation of the First

Amendment itself and has sometimes been characterized as

a violation of the Equal Protection Clause.” SEIU v. Fair

Pol. Pracs. Comm’n, 955 F.2d 1312, 1319 n.11 (9th Cir.

1992) (citations omitted). Citizens United v. FEC, however,

explained that “the First Amendment . . . [p]rohibit[s] . . .

restrictions distinguishing among different speakers,

allowing speech by some but not others.” 558 U.S. 310, 340

(2010). So, as the Second and Third Circuits did in similar

cases, we analyze the State’s decision to restrict the

expression of certain government employees—but not other

government employees—under the First Amendment. See

Lodge No. 5 of Fraternal Ord. of Police ex rel. McNesby v.

City of Philadelphia, 763 F.3d 358, 381 (3d Cir. 2014)

(“Because the City does not enforce the Charter ban against

the balance of its employees, it must explain why the ban has

special significance against the police.”); Latino Officers

Ass’n v. City of New York, 196 F.3d 458, 467 (2d Cir. 1999)

(“Having allowed [at least 25] organizations to use the

NYPD uniform in [marches] over many decades, the NYPD

cannot now deny plaintiffs the same privilege without

demonstrating that their use of the uniform is both

distinguishable from that of the various authorized

organizations and ‘so threatening to the efficiency of the

[NYPD] as to render the [restriction] a reasonable response

to the threat.’” (citation omitted)).

The parties disagree on the appropriate level of First

Amendment scrutiny for Section 3205.

PDSJ argues that the “closely drawn” standard from

McCutcheon v. FEC, 572 U.S. 185 (2014), applies to this

10 PROGRESSIVE DEMOCRATS V. BONTA

case. Under that standard, a government restriction on First

Amendment rights—in McCutcheon, a campaign

contribution limitation—can be sustained if “the State

demonstrates a sufficiently important interest and employs

means closely drawn to avoid unnecessary abridgement of

associational freedoms.” Id. at 197 (plurality opinion)

(quoting Buckley v. Valeo, 424 U.S. 1, 25 (1976) (per

curiam)). Although McCutcheon did not concern

government employees and PDSJ does not cite cases in

which distinctions between government employees were at

issue, PDSJ contends that the McCutcheon standard is

appropriate because Section 3205 discriminates among

speakers in their exercise of First Amendment rights. 4

The State, in contrast, maintains that the test articulated

in Pickering governs, as the district court concluded.

Applicable to limitations on government employee speech,

Pickering asks “whether the relevant government entity had

an adequate justification for treating the employee

differently from any other member of the general public.”

Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). As the

Supreme Court explained in United States v. National

Treasury Employees Union (NTEU), 513 U.S. 454 (1995),

“the Government’s burden is greater with respect to [a]

statutory restriction on expression than with respect to an

isolated disciplinary action,” id. at 468: “[t]he Government

must show that the interests of both potential audiences and

a vast group of present and future employees in a broad range

of present and future expression are outweighed by that

4

PDSJ has not argued that Section 3205 should be analyzed under strict

scrutiny. To the contrary, at oral argument, PDSJ’s counsel reiterated

that McCutcheon’s close scrutiny standard should apply and explained

that close scrutiny and strict scrutiny were not the same standard.

PROGRESSIVE DEMOCRATS V. BONTA 11

expression’s ‘necessary impact on the actual operation’ of

the Government,” id. (quoting Pickering, 391 U.S. at 571),

and “must demonstrate that the recited harms are real, not

merely conjectural, and that the regulation will in fact

alleviate these harms in a direct and material way,” id. at 475

(quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664

(1994) (plurality opinion)).

We need not resolve the parties’ disagreement

concerning the type of scrutiny applicable here, as Section

3205 does not survive constitutional scrutiny under either

standard (or the more stringent strict scrutiny standard

advocated for by the concurrence). In so doing, we follow

the Supreme Court’s lead. McCutcheon declined to revisit

the Court’s different standards for reviewing limits on

political contributions and expenditures—rejecting Justice

Thomas’s concurrence calling for the application of strict

scrutiny to contribution restrictions—because both strict

scrutiny and close scrutiny required the Court to “assess the

fit between the stated governmental objective and the means

selected to achieve that objective” and because the

contribution limit at issue failed under either standard. 572

U.S. at 199. Here, both the McCutcheon and

Pickering/NTEU tests require us to: (1) evaluate the State’s

asserted interests in enacting Section 3205 and (2) decide

whether the statute is appropriately tailored to achieve those

interests. See id. at 197; NTEU, 513 U.S. at 470, 472–73,

477; see also Lodge No. 5, 763 F.3d at 375. And because the

parties agree that Pickering/NTEU sets forth a more

deferential standard than McCutcheon, Section 3205

necessarily fails under McCutcheon if it fails under

Pickering/NTEU. See Wagner v. FEC, 793 F.3d 1, 7 (D.C.

12 PROGRESSIVE DEMOCRATS V. BONTA

Cir. 2015). 5 For the reasons stated below, we hold that “[t]he

speculative benefits [Section 3205] may provide the

Government are not sufficient to justify this crudely crafted

burden on [PDSJ’s] freedom to engage in expressive

activities.” NTEU, 513 U.S. at 477. 6

5

Neither the Supreme Court nor the Ninth Circuit has determined the

appropriate level of scrutiny for a solicitation ban targeted at government

employees. In Williams-Yulee v. Florida Bar, 575 U.S. 433 (2015), a

plurality of the Supreme Court applied strict scrutiny to a state regulation

banning all judicial candidates, whether currently employed as judges or

not, from soliciting campaign contributions from anyone, not only from

government employees. See id. at 437, 444. The section of the primary

opinion in Williams-Yulee discussing the applicable level of scrutiny was

joined by four of the Justices. See id. at 442–44; id. at 457–58 (Ginsburg,

J., concurring in part and concurring in the judgment). Wolfson v.

Concannon, 811 F.3d 1176, 1180 (9th Cir. 2016) (en banc), relied upon

by the concurrence, see Concurrence at 31, adopted a strict scrutiny

standard to review a state’s solicitation restriction in “the context of

judicial elections,” see Concurrence at 32 n.5. Again, the solicitation ban

in Wolfson applied to all judicial candidates, whether currently employed

as judges or not, and solicitations from anyone, not just from government

employees. See 811 F.3d at 1187 (Berzon, J., concurring).

6

The concurrence contends that Section 3205 should be analyzed as a

general governmental regulation on citizens, as opposed to government

employees, because “California concedes that the state government has

no authority over local agency employees.” See Concurrence at 29–30.

We are skeptical of this proposition. Local governments are creations of

the state government under the California Constitution, see Cal. Const.

art. XI, and California has plenary authority to regulate local

governments on matters of statewide concern, see, e.g., Cal. Fed. Savs.

& Loan Ass’n v. City of Los Angeles, 54 Cal. 3d 1, 15–18 (1991). And

the Legislature has explicitly stated, in the same chapter that contains

Section 3205, that the “political activities of public employees are of

significant statewide concern,” overriding “all provisions on this subject

in . . . any city, county, or city and county charter.” Cal. Gov’t Code

PROGRESSIVE DEMOCRATS V. BONTA 13

III.

Section 3205 precludes over a million local government

employees from soliciting political contributions from co-

employees. “Soliciting financial support is . . .

characteristically intertwined with informative and perhaps

persuasive speech seeking support for particular causes.”

Village of Schaumburg v. Citizens for a Better Env’t, 444

U.S. 620, 632 (1980). Although local government

employees may engage in other forms of political speech

under Section 3205—such as solicitations directed at the

public at large—Henneman and Ware declare, without

contradiction, that individualized solicitations are “much

more effective” than general solicitations. By banning

targeted political solicitations among local government

workers, California restricts a core form of political speech

for “a vast group of present and future employees.” NTEU,

513 U.S. at 468.

The State asserts that two primary interests justify the

burdens imposed by Section 3205: (1) assuring that

government employees are free from workplace pressure to

support certain political causes and candidates and (2)

assuring that government employees perform their duties on

behalf of the public rather than for partisan gain (i.e.,

§ 3201. In other words, local employees operate, at least to some degree,

under the State’s authority. Although California argues that the State as

a practical matter exercises stronger oversight over state employees than

local governments do over local employees, nowhere does it assert that

it has no authority to regulate the employment policies of local

government agencies. Section 3205, which California defends as a valid

exercise of state power, is a regulation on the political activities of local

government employees, and the parties agree that California could have

validly enacted an intragovernmental solicitation ban for both state and

local employees.

14 PROGRESSIVE DEMOCRATS V. BONTA

avoiding the practice of “political justice,” U.S. Civ. Serv.

Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 565

(1973)). The Supreme Court has recognized the state’s

legitimate interests in limiting workplace political coercion

and the practice of political justice. See id. at 564–67. And

PDSJ recognizes that these interests would likely support a

ban against political solicitations among all government

employees.

The critical question, then, is whether Section 3205 is

properly tailored to support the State’s interests, given its

exclusive application to local government employees. In

other words, California must demonstrate that Section 3205,

despite its differential treatment of state and local

employees, is a reasonable response to the State’s posited

and actual harms. See NTEU, 513 U.S. at 475–76. After a

review of the record before us, we cannot say that the State

has met its burden of justifying the differential ban under the

First Amendment.

1. None of the materials before the State at the time of

Section 3205’s enactment support the statute’s distinction

between local and state workers. In defense of the statute,

the State points to several letters sent to the Legislature and

Governor about Section 3205 and a committee report issued

over a decade before Section 3205’s enactment. But none of

those documents explain why state and local workers should

be treated differently with respect to intra-governmental

solicitations.

For instance, a letter from the Sacramento City Council

to the Legislature opposing AB 4351 concerned an entirely

PROGRESSIVE DEMOCRATS V. BONTA 15

different provision of the bill. 7 See Letter from Michael S.

Sands, Chairman of Council Comm. on Law & Legis.,

Sacramento City Council, to Ralph C. Dills, Chairman of S.

Gov’t Org. Comm., Cal. State Legis. (July 15, 1976). And

the Assembly’s committee report, in significant tension with

and notably predating Section 3205, discussed the need to

“improve the political freedom of local government

employees,” deeming the State’s limits on local workers’

speech “a definite problem.” See Assemb. of the State of Cal.

Elections and Reapportionment Interim Comm., An

Omnibus Report, 1963 Assemb., at 40 (1963) (emphasis

added).

The only clear pre-enactment acknowledgment of

Section 3205’s disparate treatment of local employees was

the warning from Governor Brown’s chief aide on

employment issues. Because Morgenstern could “find no

reason for [Section 3205’s] unique treatment of State

employees, vis-a-vis local agency employees,” he

recommended that the Governor not sign AB 4351, “at least

until we could determine the rationale for this distinction.”

Memorandum from Marty Morgenstern, Director, Office of

Emp. Rels., to Jerry Brown, Governor, State of Cal. (Sept.

22, 1976).

2. When considering First Amendment challenges, the

Supreme Court and this Court review evidence beyond the

information available to the legislature and executive at the

7

Sacramento withdrew its opposition to the bill “[b]ecause of

amendments worked out with the author” on the day before AB 4351

was amended to address this different provision. See Letter from Michael

S. Sands, Chairman of Council Comm. on Law & Legis., Sacramento

City Council, to Ralph C. Dills, Chairman of S. Gov’t Org. Comm., Cal.

State Legis. (Aug. 10, 1976); A.B. 4351, 1975–76 Leg., Reg. Sess. (Cal.

1976) (as amended in Senate, Aug. 11, 1976).

16 PROGRESSIVE DEMOCRATS V. BONTA

time of the statute’s enactment. See Turner Broad. Sys., Inc.

v. FCC, 520 U.S. 180, 196 (1997); Minority Television

Project, Inc. v. FCC, 736 F.3d 1192, 1198–99 (9th Cir.

2013) (en banc). The operation of California’s statutory

scheme over the decades demonstrates the primary problem

with Section 3205: the law curtails far more speech than

necessary to achieve the State’s aims.

Unlike local employees, state government employees

are allowed to solicit political contributions from their

coworkers, but only as long as the solicitations do not occur

during work hours or use state titles or resources. Despite

nearly thirty years under this regime, California does not

identify any discipline initiated in response to such

solicitations. Put another way, the State has offered no

affirmative evidence that intra-governmental solicitations—

constrained by the same conditions under which PDSJ seeks

to solicit contributions according to their declarations—have

coerced government employees into financially supporting

political candidates or caused government employees to

perform their duties in a partisan manner.

In NTEU, the Supreme Court cited an analogous lack of

evidence of known misconduct in the “vast rank and file of

federal employees” to strike down the federal government’s

blanket honoraria ban for public workers as violative of the

First Amendment. 513 U.S. at 472. “A ‘reasonable’ burden

on expression,” the Justices explained, “requires a

justification far stronger than mere speculation about serious

harms.” Id. at 475. The evidentiary gap here raises similarly

serious questions about the need for a flat solicitation

prohibition among any set of governmental employees in

California.

PROGRESSIVE DEMOCRATS V. BONTA 17

3. California’s defense of Section 3205 is further

undermined by the statute’s poor fit for the State’s asserted

interest in limiting workplace coercion. State and local

agencies vary considerably by size. For example, Santa

Clara County, a local government, employs approximately

22,000 people, while the San Joaquin River Conservancy, a

state agency, employs three. See About the County, County

of Santa Clara,

https://employeeservices.sccgov.org/sites/g/files/exjcpb531

/files/about-our-county.pdf [https://perma.cc/ZJ93-CJSS];

California State Controller, San Joaquin River Conservancy,

Government Compensation in California (July 26, 2022),

https://publicpay.ca.gov/Reports/State/StateEntity.aspx?ent

ityid=3831&year=2021 [https://perma.cc/38PM-WQ9T].

Agency size logically affects whether a colleague’s

solicitation might be understood as coercive: solicitations

among colleagues in a small agency, who must collaborate

on a regular basis, are likely to be perceived differently by

the targets of the solicitation from solicitations among

workers within a thousand-person agency, who may be

colleagues in name only and may never meaningfully

interact. Section 3205, however, does not account for agency

size at all; it instead distinguishes only between state and

local governments in its coverage. To wit, under Section

3205:

A law clerk in a state judge’s chambers may

solicit political contributions for a judicial

candidate from one of her two or three fellow

clerks at a Friday happy hour and sit next to

the other clerk the following week;

meanwhile, a Los Angeles County janitor

may not solicit contributions for a

Presidential candidate from a Los Angeles

18 PROGRESSIVE DEMOCRATS V. BONTA

County prosecutor at a barbecue that they

both happen to attend with family, even

though both are among approximately

100,000 county employees, and even though

they may go to work more than 85 miles (and

an hours-long drive in LA traffic) from each

other. 8

The First Amendment does not tolerate such a “crudely

crafted burden” on local employees’ expressive rights.

NTEU, 513 U.S. at 477. If the State seeks to protect

government employees from undue political pressure with a

solicitation ban, it cannot enact a statute that illogically

distinguishes between types of government employees but

fails to account for a crucial factor in determining whether

the prohibited solicitations will actually result in undue

pressure. Section 3205’s indiscriminate application to local

agencies of all sizes—and disregard for the potential for

coercion in state agencies regardless of size—undercuts the

State’s argument that the statute is properly tailored to

address the government’s interests.

4. Section 3205 fares no better with respect to

California’s other stated goal: limiting the actuality and

appearance that government employees are working on

behalf of political parties. In Letter Carriers, the case the

State cites in support of the importance of this interest, the

Supreme Court explained that avoiding the practice and

appearance of “political justice” was one of the “obviously

important interests” served by the Hatch Act. 413 U.S. at

564–65; see Pub. L. No. 89-554, 80 Stat. 378, 525 (1966).

8

This hypothetical was posed by PDSJ in its briefs before the district

court and the Ninth Circuit.

PROGRESSIVE DEMOCRATS V. BONTA 19

But the Court in that case considered a markedly different

provision than the one before us today.

Letter Carriers upheld the Hatch Act’s complete

prohibition on partisan activities by federal employees. 413

U.S. at 550–51. That wide-ranging ban on political activities

matched the federal government’s interest in “the impartial

execution of the laws” “without bias or favoritism for or

against any political party.” Id. at 565. The same cannot be

said of Section 3205. California’s statute is radically

underinclusive as a means to limit the actuality and

appearance of partisan behavior by public employees. See

Fla. Star v. B.J.F., 491 U.S. 524, 540–41 (1989). Even

setting aside the statute’s omission of state employees, local

workers may still engage in a wide range of political

activities under the law, including donating to partisan

groups, leading political organizations, soliciting the public

on behalf of their favored candidates and causes, and running

for office themselves. Given the statute’s narrow focus, the

State cannot plausibly contend that Section 3205

meaningfully limits the actuality and public appearance of

local employees behaving as partisan actors, when the law

bans only the decidedly internal act of solicitations among

coworkers.

5. The Supreme Court’s caselaw on the problems

underinclusive statutes present under the First Amendment

underscores Section 3205’s infirmities. Williams-Yulee v.

Florida Bar, 575 U.S. 433 (2015), reviewed a Florida canon

that banned judges and judicial candidates from personally

soliciting campaign contributions. “Underinclusivity creates

a First Amendment concern,” the Court explained, “when

the State regulates one aspect of a problem while declining

to regulate a different aspect of the problem that affects its

stated interest in a comparable way.” Id. at 451 (emphasis

20 PROGRESSIVE DEMOCRATS V. BONTA

omitted). “[A] law’s underinclusivity raises a red flag.” Id.

at 449. Florida’s regulation survived First Amendment

scrutiny, the Court held, in part, because it was not

underinclusive: “[t]he solicitation ban aim[ed] squarely at

the conduct most likely to undermine public confidence in

the integrity of the judiciary: personal requests for money by

judges and judicial candidates.” Id. at 449.

Section 3205 falls on the wrong side of Williams-Yulee’s

underinclusivity line. California insists that solicitations

among coworkers undermine a government’s ability to

function. But instead of prohibiting that speech entirely, as

Florida did with judicial solicitations, the State bans

solicitations among local employees and not state

employees. Moreover, as we have explained, Section 3205

cannot be reasonably described as aiming squarely at the

speech most likely to undermine the State’s interests,

because it neither accounts for agency size in addressing

political coercion nor bans much of the political activity that

could raise the appearance and practice of political justice.

See supra at 17–19. In sum, Section 3205 implicates the

underinclusiveness problem that Florida’s canon in

Williams-Yulee did not and also lacks the tailoring Florida’s

canon had.

* * *

These combined anomalies fatally undercut California’s

justifications for Section 3205. The State’s proffered goals

are undoubtedly important. But “the lack of fit between the

[State’s] purported interests and [Section 3205] renders the

restriction an unacceptable response to the posited harms.”

Lodge No. 5, 763 F.3d at 379.

PROGRESSIVE DEMOCRATS V. BONTA 21

IV.

The State offers two primary counterarguments. First,

California contends that state and local employees can be

treated differently because state employees are subject to

“stronger and more uniform oversight.” Second, California

insists that Supreme Court precedent forecloses PDSJ’s

challenge to Section 3205. Neither argument flies.

A.

California argues that state employees are differently

situated from local employees because the state civil service

system and the California Department of Human Resources

(“CalHR”) govern state but not local government

employees. The State does not explain how the supposed

benefits flowing from these structures justify Section 3205’s

burdens on local employees’ First Amendment rights.

1. “Uniformity” cannot be the answer. California

contends that CalHR imposes uniformity on state employees

by approving employment regulations for state agencies and

serving as a central entity to protect state employees and

their rights; this uniformity, according to California, would

not exist for local employees absent Section 3205. But the

State never explains why uniformity in solicitation

regulation among local government entities is a worthwhile

state interest, especially when Section 3205 itself creates

disuniformity by treating state and local employees

differently. Local governments have different workplace

policies on a wide range of matters and for any number of

valid reasons. See, e.g., Cal. Gov’t Code § 45000 (enabling

cities to adopt their own personnel systems); Cal. Gov’t

Code § 31102 (enabling counties to adopt their own

personnel systems). In fact, state law already explicitly

allows local governments, in a provision also enacted by AB

22 PROGRESSIVE DEMOCRATS V. BONTA

4351, to devise their own policies on permissible political

activities during work hours and at the workplace. See Cal.

Gov’t Code § 3207.

Further, even if we were to grant the importance of

California’s interest in uniformity, there is a far better

alternative to Section 3205 that would at least equally well

achieve the State’s aims. See Lodge No. 5, 763 F.3d at 383–

84. As PDSJ seeks, the State could allow all public

employees in California to solicit contributions from their

coworkers under the same restrictions currently imposed on

state employees. In doing so, the State would foster more

uniformity in the rules applicable to government employees,

by harmonizing solicitation regulations between state and

local government workers as well as for all local government

employees. At the same time, such legislation would restrict

less speech by enabling local workers to engage in non-

coercive solicitations, while simultaneously banning

solicitations among government employees under

circumstances that are most likely to be coercive.

2. The State’s representation that state employees are

subject to stronger oversight than local employees is no more

compelling. California contends that CalHR and the state

civil service system offer better protections from retaliation

for state employees than local employees receive from their

local governments. Yet, the State offers no evidence to

justify its vague assertions.

It is impossible to judge the relevance of CalHR and the

state merit system when the State does not detail any relevant

“protections” supposedly offered by them. The mere

existence of CalHR says nothing about the quality of

oversight over state employment conditions as compared to

local employment conditions. It is true but irrelevant that a

PROGRESSIVE DEMOCRATS V. BONTA 23

state employment agency exists for nearly 400,000 state

employees while certain much smaller local governments

only have a single employee to handle HR questions. And

the record contains no information about the “protections”

offered by the state civil service system as compared to the

“protections” offered by local civil service systems—or even

whether state employees are more likely than local

employees to be governed by a merit system. 9

Even if we were to somehow credit California’s

amorphous claims about the protections offered to state

employees, the State does not explain why these protections

affect whether local governments can enforce a substantive

rule permitting local employees to solicit their coworkers

under certain restrictions. California currently requires local

governments, apparently without incident, to supervise a

regime in which solicitations among local government

colleagues are completely banned. If there were a structural

reason local governments were incapable of enforcing more

discrete bans, one would think that reason would hamper

enforcement under the current, more stringent regime as

well. The State’s speculation about the capabilities of local

government agencies combined with a record devoid of

9

California’s passing references to the protections offered by state

unions are unpersuasive for similar reasons. Local as well as state

governmental employees are entitled under California law to join unions

and engage in collective bargaining. See, e.g., Meyers-Milias-Brown

Act, Cal. Gov’t Code §§ 3500–3511; Educational Employment

Relations Act, Cal. Gov’t Code §§ 3540–3549.3; Ralph C. Dills Act, Cal.

Gov’t Code §§ 3512–3524; Higher Education Employer-Employee

Relations Act, Cal. Gov’t Code §§ 3560–3599. No record information

suggests that state employees are covered by collective bargaining

agreements at significantly higher rates than local employees or have

stronger workplace protections as compared to local employees because

of their unions.

24 PROGRESSIVE DEMOCRATS V. BONTA

specific evidence about the benefits relevant to inter-

employee campaigning offered by CalHR and the state civil

service system cannot sustain a flat solicitation ban among

all local government employees.

B.

None of the cases cited by the State justify the regulatory

regime created by Section 3205.

United Public Workers of America v. Mitchell, 330 U.S.

75 (1947), addresses a different question from the one

presented in this case. In Mitchell, the petitioners argued that

the Hatch Act covered more employees than necessary to

achieve the federal government’s anti-corruption goals. See

id. at 100–02. Here, PDSJ contends that Section 3205

arbitrarily singles out a specific group of public employees

for regulation instead of covering all state and local

employees. The Supreme Court’s rejection of the

petitioners’ claim in Mitchell, which challenged the Hatch

Act for being overly broad, does not inform our analysis of

PDSJ’s claim in this dispute, which challenges California’s

statute for being overly narrow. See Williams-Yulee, 575

U.S. at 451.

Nor does a footnote from Broadrick v. Oklahoma, 413

U.S. 601 (1973), undermine PDSJ’s First Amendment

challenge. In upholding Oklahoma’s decision to ban civil

servants—but not other state employees—from engaging in

a range of political activities, the Supreme Court in

Broadrick explained that “the legislature must have some

leeway in determining which of its employment positions

require restrictions on partisan political activities and which

may be left unregulated.” Id. at 607 n.5. This statement was

made in the context of Oklahoma’s scheme for designating

some state employees but not others as covered by a merit-

PROGRESSIVE DEMOCRATS V. BONTA 25

based, nonpartisan civil service system. See id. at 602–07 &

n.5. Such systems are designed to combat the actuality and

appearance of political patronage in the more ministerial

governmental jobs, while permitting other governmental

employees to be appointed by, and beholden to, elected

officials, reflecting the need for political control at some

levels of governmental decision-making. See id. at 606;

Elrod v. Burns, 427 U.S. 347, 364–66 (1976) (plurality

opinion). Prohibiting civil service employees in particular

from engaging in political activity directly fosters those

goals.

Section 3205 operates in a decidedly different manner.

Rather than banning all civil-service-covered employees

from engaging in political activity, California’s law

prohibits all local employees, but not any state employees,

from individually soliciting political contributions from their

coworkers. In other words, Section 3205 matches neither the

means nor ends of Oklahoma’s statute: it does not track

Broadrick’s distinction between civil-service-covered

governmental employees and other governmental employees

and does not use a comparably broad set of restrictions to

achieve the State’s interests. Broadrick’s footnote cannot

save Section 3205 from constitutional scrutiny.

The remaining case cited by California, Ex parte Curtis,

106 U.S. 371 (1882), affirmed the government’s power to

ban solicitations among federal employees. It did not

consider, and petitioners did not challenge, the government’s

decision to exempt presidential appointees from the ban.

V.

We do not doubt the State’s interests in combatting

corruption and worker coercion. But we cannot, applying

First Amendment precepts, countenance California’s

26 PROGRESSIVE DEMOCRATS V. BONTA

“second-class treatment” of local employees, absent any

plausible reason for the distinction. See Lodge No. 5, 763

F.3d at 381. For the foregoing reasons, we reverse the district

court’s grant of summary judgment to the State and remand

for further proceedings consistent with this opinion. 10

REVERSED and REMANDED.

IKUTA, Circuit Judge, concurring in the result

Section 3205 of the California Government Code

violates the First Amendment as a restriction on political

speech that is not justified by California’s asserted

governmental interests. But because California did not enact

the law in its capacity as an employer, but rather in its

capacity as a sovereign, we should analyze the statute under

ordinary First Amendment principles, not under a

Pickering/NTEU balancing test. Maj. Op. at 11–12.

Therefore, I concur only in the result.

I

Krista Henneman and Carlie Ware are deputy public

defenders who work for Santa Clara County. Although they

wanted to solicit donations from other County employees to

support the candidacy of Sajid Khan to become district

attorney, they did not do so because Section 3205 of the

California Government Code forbids employees of a local

agency from soliciting a political contribution from an

10

Because we conclude that Section 3205 does not survive First

Amendment scrutiny, we do not reach PDSJ’s Equal Protection

challenge.

PROGRESSIVE DEMOCRATS V. BONTA 27

officer or employee of that agency. This suit challenging the

constitutionality of Section 3205 followed.

There is no doubt that a state statute forbidding

individuals from soliciting donations, a form of protected

speech, impinges on the First Amendment rights of those

individuals. See Barr v. Am. Ass’n of Pol. Consultants, Inc.,

140 S. Ct. 2335, 2346–47 (2020); Riley v. Nat’l Fed’n of the

Blind of N.C., Inc., 487 U.S. 781, 789 (1988); Wolfson v.

Concannon, 811 F.3d 1176, 1180–81 (9th Cir. 2016). The

more difficult issue is to identify the framework mandated

by the Supreme Court to determine whether the government

speech restriction violates the First Amendment.

Instead of determining the appropriate degree of

constitutional scrutiny with which to review Section 3205,

Maj. Op. 11, the majority analyzes the law under the test set

forth in Pickering v. Board of Education, 391 U.S. 563

(1968), and United States v. National Treasury Employees

Union (NTEU), 513 U.S. 454 (1995), explaining that

“because the parties agree that Pickering/NTEU sets forth a

more deferential standard,” “Section 3205 necessarily fails

under” a higher level of scrutiny “if it fails under

Pickering/NTEU.” 1 Maj. Op. 11.

1

Relying on McCutcheon (which declined to determine if the challenged

restriction on political contributions was subject to strict scrutiny or

closely drawn scrutiny review because the contribution limit at issue

failed under the less rigorous closely drawn scrutiny standard, see

McCutcheon v. FEC, 572 U.S. 185, 199 (2014)), the majority declines to

“resolve the parties’ disagreement concerning the type of scrutiny

applicable here” because Section 3205 fails under any level of scrutiny.

Maj. Op. 11. The McCutcheon approach does not apply in this context,

however, because while both strict scrutiny and closely drawn scrutiny

28 PROGRESSIVE DEMOCRATS V. BONTA

This is incorrect. Pickering and NTEU considered the

balance between the government’s needs as an employer and

its employees’ First Amendment rights. See Pickering, 391

U.S. at 568; see also NTEU, 513 U.S. at 468. Pickering

recognized that the government’s “interests as an employer

in regulating the speech of its employees . . . differ

significantly from those it possesses in connection with

regulation of the speech of the citizenry in general.” 391

U.S. at 568. As an employer, the government is “charged by

law with doing particular tasks” and “hire[s] employees to

help do those tasks as effectively and efficiently as possible.”

Engquist v. Or. Dep’t of Agr., 553 U.S. 591, 598 (2008)

(citation omitted). “Government employers, like private

employers, need a significant degree of control over their

employees’ words and actions; without it, there would be

little chance for the efficient provision of public services.”

Garcetti v. Ceballos, 547 U.S. 410, 418–19 (2006); see also

Rankin v. McPherson, 483 U.S. 378, 384 (1987) (“[P]ublic

employers are employers, concerned with the efficient

function of their operations.”).

In light of the nature of the employer-employee

relationship, the Supreme Court held that challenges to

restrictions on public employees’ speech are evaluated by

balancing their First Amendment rights “as a citizen, in

commenting upon matters of public concern” against the

government’s interest “as an employer, in promoting the

efficiency of the public services it performs through its

employees.” Pickering, 391 U.S. at 568; see also NTEU,

may apply to government restrictions on speech generally, see 572 U.S.

at 199, the Pickering/NTEU test applies only to government restrictions

on speech of its employees, and thus is not a relevant standard for

determining if Section 3205 violates the First Amendment. See infra pp.

28–30.

PROGRESSIVE DEMOCRATS V. BONTA 29

513 U.S. at 468. This balancing test reflects “the common-

sense realization that government offices could not function

if every employment decision became a constitutional

matter.” Engquist, 553 U.S. at 599 (cleaned up); see also

Rankin, 483 U.S. at 384 (“[R]eview of every personnel

decision made by a public employer could, in the long run,

hamper the performance of public functions.”). It also

ensures that “constitutional review of government

employment decisions” (where “the government act[s] ‘as

proprietor to manage [its] internal operation’”) “rest[s] on

different principles than review of restraints imposed by the

government as sovereign” (where the government acts “as

lawmaker” “to regulate or license”). Engquist, 553 U.S. at

598–99 (cleaned up) (citation omitted).

In light of that underlying rationale, it follows that the

Pickering/NTEU balancing test is the appropriate analytic

framework only where the government restricts speech in

order to advance its interest “in promoting the efficiency of

the public services it performs through” the employee

subject to the restriction. Pickering, 391 U.S. at 568; see

also Connick v. Myers, 461 U.S. 138, 150–51 (1983)

(recognizing that the Pickering balancing test applies where

the government is “promot[ing] efficiency and integrity in

the discharge of official duties” (citation omitted)). Because

the government may have such an interest where the person

is a contractor or vendor, the test applies to speech

restrictions imposed on those individuals as well. See Bd. of

Cnty. Comm’rs, Wabaunsee Cnty. v. Umbehr, 518 U.S. 668,

673 (1996) (government contractors); Alpha Energy Savers,

Inc. v. Hansen, 381 F.3d 917, 923 (9th Cir. 2004)

(government vendors).

But we have never applied the test to a government’s

imposition of speech restrictions on individuals who provide

30 PROGRESSIVE DEMOCRATS V. BONTA

no services and perform no duties for the government at

issue. 2 That is the situation here. California concedes that

the state government has no authority over local agency

employees. Indeed, California’s theory of the case is that

Section 3205 is justified because California has no power or

jurisdiction to oversee local agency employees and their

solicitation of political contributions from co-workers.

California repeatedly states that “[t]here is no . . . oversight,

absent Section 3205, for local agencies,” and that

“California’s 3,500 local agencies are each responsible for

managing their own personnel,” thus recognizing that the

state government has no authority in this area. Put

differently, California concedes that it did not enact and does

not enforce Section 3205 in order to “promot[e] the

efficiency of the public services it performs through” local

agencies. Pickering, 391 U.S. at 568. Therefore, the

Pickering/NTEU balancing test is simply inapplicable here.

It should not be used to analyze the constitutionality of

Section 3205. 3

2

A state government may have an employer-employee interest where a

person officially employed by a local government functionally serves as

an employee of the state government. See, e.g., Weiner v. San Diego

County, 210 F.3d 1025, 1030 (9th Cir. 2000) (holding that, for purposes

of a § 1983 action, “a county district attorney acts as a [California] state

official when deciding whether to prosecute”). But Section 3205 is not

limited to local agency employees who have that sort of relationship to

the state.

3

The majority says it is “skeptical” that Section 3205 should be analyzed

as a governmental regulation on citizens generally because the state has

plenary authority to regulate local governments on matters of statewide

concern. See Maj. Op. 12–13 n.6. But this observation sheds no light

on the question before us: whether the state acts as an employer with

respect to individuals who work for local governments. The state’s

PROGRESSIVE DEMOCRATS V. BONTA 31

II

Because California enacted and enforces Section 3205 in

its capacity as sovereign, not employer, I would analyze the

law as a restriction on protected political speech under

ordinary First Amendment principles.

A restriction on political solicitations is unconstitutional

unless it “is narrowly tailored to serve a compelling

[governmental] interest.” Wolfson v. Concannon, 811 F.3d

1176, 1180 (9th Cir. 2016) (en banc) (citation omitted). 4 A

authority to enact legislation affecting local governments’ operations

does not mean that the state has an employment relationship with the

local governments’ employees. Moreover, state law limits the degree to

which California can affect local governments’ employees. Under the

California Constitution, the state lacks authority to regulate matters

falling within “municipal affairs” of charter cities, Cal. Fed. Sav. & Loan

Ass’n. v. City of Los Angeles, 54 Cal. 3d 1, 12–13, 24 (1991), which

includes employment-related matters such as “the wage levels of

contract workers constructing locally funded public works,” State Bldg.

& Constr. Trades Council of Cal. v. City of Vista, 54 Cal. 4th 547, 556

(2012). And the California Constitution also provides that each county

has plenary authority over employment matters. See CAL. CONST. art.

XI, § 1(b) (providing that each county “shall provide for the number,

compensation, tenure, and appointment of [its] employees”).

4

The majority asserts that Wolfson’s standard of scrutiny applies only to

restrictions on political solicitations by judicial candidates and does not

extend to restrictions on solicitations by non-candidates or candidates for

other offices. Maj. Op. 12 n.5. This argument is incorrect. Wolfson

endorsed the plurality view in Williams-Yulee v. Florida Bar that

“speech about public issues and the qualifications of candidates for

elected office commands the highest level of First Amendment

protection,” 811 F.3d at 1180 (quoting Williams-Yulee v. Fla. Bar, 575

U.S. 433, 443 (2015)), and agreed “that strict scrutiny is appropriate

here,” without limiting this principle to candidates for judicial office, id.

That the plaintiffs in Williams-Yulee and Wolfson were campaigning for

32 PROGRESSIVE DEMOCRATS V. BONTA

speech restriction “is narrowly tailored if it targets and

eliminates no more than the exact source of the ‘evil’ it seeks

to remedy.” Frisby v. Schultz, 487 U.S. 474, 485 (1988)

(citation omitted). Thus, where a court “find[s] a substantial

mismatch between the Government’s stated objective and

the means selected to achieve it,” the challenged speech

restriction fails strict scrutiny review. McCutcheon, 572

U.S. at 199.

California has not demonstrated either a compelling

interest or narrowly tailored means. First, the Supreme

Court has repeatedly held that the “one permissible ground

for restricting political speech” is the governmental interest

in preventing quid pro quo corruption or its appearance. 5

FEC v. Cruz, 142 S. Ct. 1638, 1652 (2022); see also

McCutcheon, 572 U.S. at 192 (“Any regulation [on political

speech] must . . . target what we have called ‘quid pro quo’

corruption or its appearance [to be constitutional].”). Here,

California claims its interests in enacting Section 3205 are to

prevent corruption, cronyism, and workplace coercion.

Under Supreme Court precedent, the goals of preventing

cronyism and workplace coercion cannot serve as a

judicial office was relevant to determine whether the state had a

compelling interest in prohibiting solicitation, not to determine the

standard of review. See Williams-Yulee, 575 U.S. at 445–46; Wolfson,

811 F.3d at 1182.

5

In Williams-Yulee, the Court recognized a compelling governmental

interest in protecting the integrity of the judiciary and maintaining the

public’s confidence in an impartial judiciary. 575 U.S. at 445. But

Williams-Yulee was careful to clarify that “a State has compelling

interests in regulating judicial elections that extend beyond its interests

in regulating political elections, because judges are not politicians.” Id.

at 455. Thus, Williams-Yulee does not apply to restrictions on political

speech outside the context of judicial elections.

PROGRESSIVE DEMOCRATS V. BONTA 33

compelling government interest to restrict political speech.

See Cruz, 142 S. Ct. at 1652. Even California’s interest in

preventing corruption is not a compelling interest, because it

is not aimed at preventing quid pro quo corruption or its

appearance. See McCutcheon, 572 U.S. at 192 (defining

quid pro quo corruption); see also id. at 209 (“The line

between quid pro quo corruption and general influence may

seem vague at times, but the distinction must be respected in

order to safeguard basic First Amendment rights.”).

Second, Section 3205 is not narrowly tailored to these

asserted interests, as the majority explains. Maj. Op. 14–20.

For one, California presents no evidence that state

employees’ solicitation of political donations from their co-

workers has resulted in corruption, cronyism, or workplace

coercion. Thus, California’s fear, absent any factual support,

is the type of “mere conjecture” that the Supreme Court has

held is not “adequate to carry a First Amendment burden.”

Id. at 210 (citation omitted).

Section 3205 is also underinclusive. An underinclusive

speech restriction, meaning one that “abridg[es] too little

speech,” Williams-Yulee v. Fla. Bar., 575 U.S. 433, 448

(2015) (emphasis omitted), “creates a First Amendment

concern when the State regulates one aspect of a problem

while declining to regulate a different aspect of the problem

that affects its stated interest in a comparable way,” id. at

451 (emphasis omitted). Section 3205 is underinclusive

because it restricts the political speech of local agency

employees by prohibiting them from soliciting political

donations from their co-workers, but does not prohibit the

same political speech of state employees. And that

underinclusion raises a First Amendment concern because

solicitations among state employees equally raise the risk of

actual and apparent corruption, cronyism, and workplace

34 PROGRESSIVE DEMOCRATS V. BONTA

coercion. California’s assertion that state employees are

situated differently than local employees because they are

overseen by the California Department of Human Resources

is unpersuasive, given that California presents no evidence

that its human resources department has historically

prevented corruption, cronyism, or workplace coercion due

to employees’ political speech, or that local agencies have

failed to prevent those harms. Again, this type of conjecture

is insufficient to sustain a restriction on First Amendment

protected speech. See McCutcheon, 572 U.S. at 210.

Because I agree that Section 3205 fails under strict

scrutiny, thereby constituting an unconstitutional restriction

on speech, I concur in the result.