Supreme Court Prohibits Union Campaign Withholding

Reversing itself from a ruling late last year, the Supreme Court said on Thursday that governmental entities cannot withhold union political action committee contributions from employees' paychecks.

The court, now under a Republican majority, reversed the decision issued in December that allowed public employee unions to have check-off programs for PAC contributions.

Justice Stephen Markman, in an opinion joined by Chief Justice Robert Young Jr., Justice Mary Beth Kelly and Justice Brian Zahra, ruled that colleting and remitting the PAC contributions constitutes a campaign expenditure by the local government, in this case (Michigan Education Association v. Secretary of State, SC docket No. 137451).

The reversal had been expected with the change in majority on the court and Attorney General Bill Schuette's motion for reconsideration.

Justice Stephen Markman authored the opinion ending government payroll check-off for PACs.

As they had in their dissent in the prior ruling on the case, Republicans on the bench found there was no way to avoid some governmental contribution to the campaign even if it was reimbursed for its costs.

"For example, the school district must use its paper, pens, and copiers to develop and execute payroll deduction authorization forms; school personnel must collect, enter, and monitor the data of participating MEA members into computers and accounting software, all of which must be specifically configured to record, track, and transmit payroll deductions to the MEA-PAC; school personnel must then be prepared to respond to individual teachers who find it necessary from time to time to adjust or correct or withdraw their own deduction authorizations; and this process must necessarily involve the use of public office space, equipment, and employee time," Markman wrote. "Use of the school district's resources to facilitate MEA members' 'contributions' constitutes a straightforward violation of (the Campaign Finance Act)."

Markman said the fact that the MEA had continued to litigate the case showed the school district's assistance in collecting the contributions had value that itself constituted a contribution.

Democrats on the court, in addition to stating their opinion that the act allows the payroll deduction plan, also argued the majority had no valid reason for granting rehearing in the first place.

Justice Michael Cavanagh, joined by Justice Marilyn Kelly, said the prior majority was correct and the ruling from the new majority goes beyond the purpose of the act.

"The majority fails to realize that my interpretation of the MCFA is consistent with the true purpose of MCL 169.257 as determined from the language of that provision because the school district's administration of the payroll deduction plan at issue in this case is neither a 'contribution' nor an 'expenditure,'" Cavanagh said.

Justice Dianne Hathaway, in a separate dissent, said the prior ruling was precedent and should not have been disturbed through a rehearing.

"Instead of preserving precedent, this newly comprised majority reverses this court's previously issued opinion and issues its own opinion for no reason other than that it disagrees with the outcome of the prior opinion," she said. "Moreover, members of the current majority conspicuously fail to explain how this action differs from actions that they vehemently criticized just two short years ago."

Markman, in the majority opinion, said rehearing was appropriate because the prior opinion amended, rather than interpreted, the law and because the issue "is one of considerable importance to the people of this state and to the integrity of the state's political and public processes."

He also argued that the Democrats, when they controlled the court, had first acted to delay the case, and then rushed the decision to be sure it was done before the end of the year.

"(A) majority opinion was prepared in near-record time, the period for dissenting justices to respond to this opinion was substantially shortened," he said of the process between oral argument on the case and a final decision.

Mary Beth Kelly, joined by Zahra, also wrote separately to explain the reasoning for granting rehearing. Both noted the court has full discretion to grant rehearing on a case.