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My View: Taxpayers shouldn't have to subsidize political donations for unions

By M. Royce Van Tassell

Published: Sunday, March 8 2009 12:01 a.m. MST

Paycheck protection has been controversial for most of the past decade. If the 6-3 Supreme Court decision in Ysursa v. Pocatello Education Association to uphold paycheck protection is any indication, the legal controversy was more contrived than real. Taxpayers should never have been asked to subsidize political donations for unions. Or any other group, for that matter.

In 2001, then-Rep. Chad Bennion and Sen. Howard Stephenson shepherded HB 179, the Utah Voluntary Contributions Act, which enacted paycheck protection, through the Legislature, and Gov. Mike Leavitt signed it into law. The VCA prohibits public employee unions from using any and all government payroll systems to collect political donations, which led to a precipitous drop in union political donations. Unsurprisingly, various unions immediately filed suit, and after a year of VCA enforcement, the courts suspended the VCA, pending the outcome of the litigation. During the same time period, Idaho and Ohio passed their own versions of the VCA, and unions in those states also filed suit.

Although the three states' VCA laws are functionally indistinguishable, it was hardly surprising with different lawsuits in the 6th, 9th and 10th Circuit Courts that the courts would split. The 9th and 10th Circuits ruled the Idaho and Utah VCAs were unconstitutional, while the 6th Circuit upheld Ohio's. To settle the issue, the United States Supreme Court agreed to decide the Idaho case.

Recognizing that the Supreme Court's decision would dictate the outcome of the Utah case, the 10th Circuit "abated" its ruling, pending the Supreme Court's ruling in Ysursa. If the Supreme Court ruled the Idaho VCA constitutional, the Utah VCA would also be constitutional and could take immediate effect. The decision to uphold Idaho's VCA closes the controversy: Six members of the Supreme Court, appointed by both Republican and Democratic presidents, declared the VCA constitutional. On controversial issues like paycheck protection, Supreme Court watchers expect the solons' votes to track the political leanings of the president who appointed them, and that typically means a 5-4 vote. That is the outcome the Taxpayers Association expected when it joined the National Federation of Independent Businesses, the National Right to Work Legal Foundation and the Sutherland Institute in submitting a brief urging the Supreme Court to uphold Idaho's paycheck protection law.

As the Supreme Court addressed the question, the legal issue is really pretty simple. Both sides of the case agreed that a state does not have to subsidize the collection of political donations. The question focused solely on local governments: Does the Constitution require local governments, like school districts, to subsidize the collection of political donations, or can a state prohibit local governments from providing this subsidy? As Justice Ruth Bader Ginsburg wrote, "in the context here involved, the Constitution compels no distinction between state and local governmental entities."

Justice Ginsburg's two-paragraph concurring opinion is by far the most interesting. As Republican appointees, virtually everyone expected Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy, Clarence Thomas and Antonin Scalia to uphold the Idaho and Ohio VCAs. But Justice Ginsburg is a Clinton appointee and (until this week) a favorite of the unions. Yet she joined with her more conservative colleagues and stood on principle.

Union detractors have and will disparage this decision, and as other states adopt their own VCAs, I wouldn't be surprised to see unions pursue additional litigation. But at the end of the day, a 6-3 decision can't be dismissed as purely partisan. A 6-3 decision means both liberal and conservative members of the court came together to support sound constitutional principle. In the court's words, "A legislature's decision not to subsidize a fundamental right does not infringe the right."

As an association, we are grateful the Supreme Court upheld the constitutionality of Voluntary Contribution Acts, and we look forward to having Utah's law again enforced. Taxpayers should not be forced to subsidize the collection of political contributions for any organization, union or not.

M. Royce Van Tassell is vice president of the Utah Taxpayers Association.

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