I've been trying to find any earlier Democratic Underground discussion of this ruling, but haven't been able to. The SCOTUS ruling was in February of 2009, after it agreed to consider the case in 2008, and we were understandably focused on the election and the start of the new administration.
But the
American Legislative Exchange Council (ALEC) had its attention on a Supreme Court case that not only weakened public worker unions in Idaho, but included reasoning on the relationship between state and local governments that ALEC applauded. ALEC even filed an
amicus curiae brief in this case.
I ran across this last night while trying to find a more direct link, maybe even some model legislation at ALEC, supporting the "financial martial law" that Rick Snyder and the GOP-dominated legislature have implemented in Michigan, and that Scott Walker and his cronies are planning for Wisconsin. There's already plenty of evidence of ALEC's influence on both states, and as I pointed out in
a separate topic on Walker's plans for financial martial law, the language on a website they set up to promote this for Milwaukee County is similar to ALEC's "State Budget Reform Toolkit" -- the same goals, implemented at the local level.
That promotional website -- apparently in anticipation of arguments that this is a power grab by state government -- stressed that counties are only "arms of state government." That is their basic argument for the state government's right to take over local governments.
And ALEC was very happy about part of that 2009 SC decision that basically said the same thing.
Here's their press release, which I'm quoting almost in its entirety because it is a press release:
http://www.alec.org/am/pdf/amicus/amicus-payroll-deduction.pdfFor Immediate Release:
February 25, 2009
ALEC Praises Supreme Court Ruling Upholding States’ Authority over
Local Government in Public Employee Payroll Deduction Case
The American Legislative Exchange Council (ALEC) applauds yesterday’s ruling by the United
States Supreme Court in Ysursa v. Pocatello Education Association. The Supreme Court upheld
an Idaho state law that prohibited payroll deductions by public employees for their union’s
political activities. In so doing, the Supreme Court reaffirmed the discretionary authority of
states over public collective bargaining privileges and the authority of states to control their
respective political subdivisions.
In his opinion for the Supreme Court, 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.”
The Chief Justice concluded that “while in some contexts the government must accommodate
expression, it is not required to assist others in funding the expression of particular ideas,
including political ones.” “Banning payroll deductions for political speech,” the Chief Justice
maintained, “furthers the government’s interest in distinguishing between internal and
governmental operations and private speech.”
Importantly, the Chief Justice reiterated that political subdivisions such as cities and counties are
subordinate units of government created by States to carry out delegated government functions.
Such subdivisions have no privileges or immunities under the federal constitution to invoke
against States that created them. Accordingly, the Court upheld Idaho’s ban on public employee
payroll deductions for union political activities as it applied to county and city governments.
In 2003, the Idaho Legislature passed the Voluntary Contributions Act, prohibiting collection of
political contributions from state and local government employees through state and local
government payroll systems. The law expressly protected the rights of union members to
contribute money to candidates of their choosing. Several unions sued. Last year, the U.S.
Court of Appeals for the Ninth Circuit upheld the law as it applied to Idaho state government
employees, but struck down a portion of the Act as it applied to Idaho local government
employees. This despite the fact that states create political subdivisions—such as counties, cities,
and municipalities—and maintain the rightful authority to limit all powers delegated to those
subdivisions. Yesterday’s ruling by the Supreme Court reversed the Ninth Circuit.
ALEC joined with he Evergreen Freedom Foundation and the Independence Institute in filing an
amicus curiae to the Supreme Court in Ysursa. In its brief, ALEC reaffirmed the states’ interest
in disentangling government property and processes from political contributions and similarly
reaffirmed the rightful authority of states over local government entities. The brief analyzed the
discretion of states to stay out automatic payroll deduction duties in light of the states’ overall
discretion to create or withdraw public collective bargaining privileges to public employee
unions. States are not constitutionally compelled to engage in public collective bargaining.
Consistent with the constitution, states may permissibly prohibit public collective bargaining
altogether. By contrast, the ability of individuals to join unions and to privately collectively
bargain with private employers is protected by First Amendment freedom of association.
“The Chief Justice of the Supreme Court penned a superb opinion—succinct, tightly reasoned,
and constitutionally sound,” said Seth Cooper, coordinator of ALEC’s Amicus Project. “ALEC
believes the Supreme Court rightly recognized the discretionary power of states to disentangle
their governmental operations from political activities. Likewise, ALEC applauds the Supreme
Court’s vindication of the authority of states over their political subdivisions.”
-snipping a final paragraph about ALEC model legislation-
Emphasis added.
This is the section on local governments in the majority opinion, which was written by Roberts:
http://www.law.cornell.edu/supct/html/07-869.ZO.html“Political subdivisions of States—counties, cities, or whatever—never were and never have been considered as sovereign entities.” Reynolds v. Sims, 377 U. S. 533, 575 (1964) . They are instead “subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.” Ibid.; see also Louisiana ex rel. Folsom v. Mayor and Administrators of New Orleans, 109 U. S. 285, 287 (1883) (“Municipal corporations are instrumentalities of the State for the convenient administration of government within their limits”). State political subdivisions are “merely … department(s) of the State, and the State may withhold, grant or withdraw powers and privileges as it sees fit.” Trenton v. New Jersey, 262 U. S. 182, 187 (1923).
ALEC likes John Roberts, and even weighed in during his confirmation hearings (which, judging by the wording in this Fox news article from 2005, was unusual for them):
http://www.foxnews.com/story/0,2933,163160,00.htmlInterest Groups Begin Roberts Battle
Thursday, July 21, 2005
By Liza Porteus
-snip-
Even the American Legislative Exchange Council weighed in, saying Roberts is a "phenomenal choice."
"Judge Roberts has a track record of not legislating from the bench. He recognizes the constitutional role of the judiciary and the genius of the separation of powers between the legislative, judicial, and executive branches of government," said ALEC Executive Director Duane Parde.
"The judicial confirmation of Judge Roberts to the Supreme Court would be a strong step toward the recognition of the separation of powers between the federal and state governments. This support of the sovereignty of the states will enhance federalism, free markets, and the individual freedoms of all Americans."
Apparently the "individual freedoms of all Americans" don't apply to freedom at the local level of government. At least not if authoritarian conservatives with power at the state level feel otherwise.
Paul Weyrich, co-founder of ALEC decades ago, was at Roberts' swearing-in ceremony:
http://www.renewamerica.com/columns/weyrich/050930Now, I have no way of knowing for certain if the conservative majority on the Supreme Court was aware, in 2008 and 2009, that so much of the battle for control of government would be moving to the state level, and that conservative governors and state legislators would want to assert complete authority over any local governments (and policies and contracts from local governments) that resisted their plans.
But, given what we've since learned of the political involvement of some Supreme Court justices, I'd be surprised if they didn't know of these plans.
Which is why I think the SC decided to hear this case, and why the conservative majority ruled the way it did -- a ruling that weakens unions and local governments at the same time.
Setting the stage for union-busting right-wing governors and state legislators who might also want to take over local governments.
Just as
Citizens United paved the way for corporations to buy elections more easily.
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