California argues it can silence speech so long as it's super secretive about it

August 28, 2017 | By ANASTASIA BODEN

When the government engages in shady, unconstitutional behavior, it’s usually not forthcoming about it.  As courts have observed, “the government rarely flatly admits,” for example, that “it is engaging in viewpoint discrimination.”  Instead, it cloaks its discriminatory policies in “neutral” language, and asserts that it’s really trying to achieve some valid, non-discriminatory purpose.  But that shouldn’t be good enough to avoid a constitutional lawsuit. At least, that’s what we’re arguing in the Ninth Circuit in our case on behalf of non-profit advocacy organization ABC-CCC.

The lawsuit concerns SB 954, which regulates the way that contractors for public projects can pay their employees.  In California, public contractors are required to pay their employees a minimum, or “prevailing,” wage. They can satisfy this requirement by paying a combination of cash and other benefits, like paying for health insurance or by contributing to an employee’s pension fund.  They can also make donations to “industry advancement associations,” which lobby and otherwise advocate for the improvement of the industry.  Formerly, an employer could contribute to any such association and receive a prevailing wage credit.  Under SB 954, employers can only receive a credit if the contribution is authorized by a union-approved collective bargaining agreement.

This requirement plainly discriminates against organizations like ABC-CCC, which advocate contrary to union interests.  ABC-CCC was created to advocate against the use of project labor agreements in public contracting.  Project labor agreements require all bidders on public projects to abide by a union-negotiated collective bargaining agreement—whether the contractor is unionized or not.  No union will authorize a contribution to an association like ABC-CCC, which seeks to lessen the influence of unions in public contracting.  So ABC-CCC sued, arguing that the law discriminates against it based on its viewpoint in violation of the First Amendment and the Equal Protection Clause.

The government asserts that SB 954 is aimed at the neutral purpose of ensuring that employees consent to how their wages are allocated.  But the law is so ill-suited to that end that there is good reason to doubt whether that’s the true objective. Collective bargaining agreements don’t ensure individualized consent.  They only require a majority vote, meaning that a worker’s consent is irrelevant if a majority of union workers disagree.   Some forms of collective bargaining agreements, like project labor agreements (which are negotiated by unions and the government project owner prior to bidding), don’t require employee consent at all.  And even when employees do vote, they can only vote straight up or down.  They can’t veto particular policies—which means that an employee might disagree with a prevailing wage contribution but think that, on the whole, the agreement is better than nothing.  But the law is not just under-inclusive, it’s over-inclusive.  It precludes prevailing wage contributions even if an employer obtains actual consent—because it only allows the contributions if authorized under a collective bargaining agreement.  SB 954 is far better tailored to discriminating against union-opposed speech than it is to ensuring “employee consent.”

The court dismissed the case on the theory that the law is “neutral.”  But the appearance of neutrality should not be enough to get a constitutional lawsuit thrown out of court.  ABC-CCC has alleged that the purportedly “neutral” requirement that contributions be made pursuant to a collective bargaining agreement acts as a proxy for union-backed speech.  It should have the opportunity to prove that allegation in court.