finding Ohio wage checkoff ban constitutional where "[a]ll Ohio public employees are denied the benefits that might be derived from such publicly-administered programs”
How later courts described this case
- finding Ohio wage checkoff ban constitutional where "[a]ll Ohio public employees are denied the benefits that might be derived from such publicly-administered programs”
- “[Sjhowing the affected term induced the parties to enter into the contract is sufficient to establish a substantial impairment for purposes of the Contracts Clause.”
- "[S]howing the affected term induced the parties to enter into the contract is sufficient to establish a substantial impairment for purposes of the Contracts Clause."
- public-employee unions claimed that prohibition on payroll deductions for political causes discouraged their political expression
Written by the judges who cited it.
The opinion
MERRITT, Circuit Judge,
dissenting.
Judge Boggs’s opinion evinces a peculiar distaste for the campaign finance reform movement, referring to it as a “public outcry” against which the courts “must be especially vigilant” because, among other reasons, if this Ohio law is constitutional, William Jennings Bryan “could not have given his famous ‘cross of gold’ speech” and because our longstanding traditions favor unregulated campaign spending:
The Declaration- of Independence concludes with persons pledging, “our lives, our fortunes, and our sacred honor.” (Emphasis added.) There were no campaign limitations on what they would spend.
Leaving aside the judicial rhetoric, the state law that the court has held unconstitutional is a relatively innocuous and mild state statute saying that when soliciting campaign contributions from union members or employees, a union or an employer shall “inform” them, that “making a contribution is voluntary” and that failure to contribute will not cause retribution. I do not see this as any great burden, certainly a much lesser burden than the Minnesota prohibition on fusion or multi-party ballots upheld recently in Timmons v. Twin Cities Area New Party, 520 U.S. 351 , 117 S.Ct. 1364 , 137 L.Ed.2d 589 (1997). There the Chief Justice said with respect to election and campaign regulations of the type before us that a “state’s asserted regulatory interest need only be sufficiently weighty to justify the limitation imposed.” Id. at 1372. It need only be rational. Surely informed consent regulation governing a union or employer’s efforts to get members or employees to make political contributions to a favored political party, candidate, or cause should not be viewed as a “severe burden” on free speech anymore than regulations controlling various kinds of fraud and undue influence or employer threats against em-ployées because of anti-union bias. The NLRB, the EEOC, the SEC, the FTC, as well as many other administrative agencies and the courts, frequently require employers, sellers, or others to issue notices that inform employees or other groups of their rights. See, e.g., NLRB v. Ozanne Const. Co., 112 F.3d 219, 226 (6th Cir.1997), in which Judge Boggs recently upheld against an over-breadth attack an NLRB requirement that an employer must give its employees notice informing them of their § 7 rights to be free of coercion. Such cases are legion. That is the same thing that is happening here. It should not be cause for constitutional alarm nor incite the federal judiciary to substitute its judgment for the enactment by a state’s duly-elected representatives of an informed consent statute protecting employees from demands for campaign contributions.
I regard § 3517.082(D) as equally mild and innocuous. It requires that union and employer political solicitation be in writing and “not be made more than four times during each calendar’ year.” It is a device to re *328 strain unions and employers from frequently badgering their people for political contributions and to regularize and record the relationship. The writing requirement is no more than a kind of Statute of Frauds designed to ensure propriety and clarity and create a record of the transaction. It is no more onerous or unconstitutional than the similar writing requirement for contracts contained in the Statute of Frauds first passed by Parliament in 1677 during the reign of Charles II and now adopted in some form by almost every state. There is surely some force to the argument that there should be, in common prudence, some impersonal evidence available when serious matters are at stake. A writing would clarify the purpose of the transaction and tend to deter overreaching and coercion of subordinates by union leaders and company management.
Nor does the anti-checkoff provision concerning political contributions violate the Contracts Clause. The plaintiffs have not shown “substantial impairment” of the collective bargaining agreement by immediate application of the anti-checkoff provision to the agreement. There is no evidence that this is a key term in the collective bargaining agreement and of significant import to union members. The wage checkoff provision is incidental to the collective bargaining agreement as a whole. It does not go to the essence of the contract.
Furthermore, as pointed out by the state, the collective bargaining process is heavily regulated, making this minor adjustment to an agreement that is already heavily regulated insubstantial. The state has articulated'a legitimate reason for the anti-checkoff provision in the statute, which we have found constitutional, and I cannot see where the immediate elimination of the wage checkoff term from the collective bargaining agreement substantially impairs the overall agreement.