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Colorado Supreme Court strikes down constitutional amendment limiting public employees' speech

By J. DeVoy

Some states have enacted laws and even constitutional provisions that affect public sector labor unions’ political speech and participation.  In Colorado, for example, the state’s constitution was amended to ban political contributions and their inducement by public unions.

Because of a presumption of impropriety between contributions to any campaign and sole source government contracts, contract holders shall contractually agree, for the duration of the contract and for two years thereafter, to cease making, causing to be made, or inducing by any means, a contribution, directly or indirectly, on behalf of the contract holder or on behalf of his or her immediate family member and for the benefit of any political party or for the benefit of any candidate for any elected office of the state or any of its political subdivisions. Colo. Const. Am. 54 § 15.

 The Amendment specifies public sector labor unions as holders of no-bid state contracts in Section 17, subheading 4.5.  In addition to proscribing the union’s ability to make donations on its own, it precludes its members from mobilizing to seek donations from others – a hallmark benefit of winning a union’s political support – due to the “causing to be made, or inducing” language in Section 15 of the amendment.

The Colorado Supreme Court recently considered the constitutionality of this amendment in Dallman v. Ritter, No. 09SA224,  ___ P.3d ___ (Colo. Feb. 22, 2010), available at (last accessed May 12, 2010).  The case, first brought by members of a teachers union, resulted in a preliminary injunction against the Amendment’s enforcement at the trial level.  Id. at 16.  In the court’s opinion, the justices found the amendment so vague and overbroad that the court nullified it in its entirety. Id. at 4.  A substantial portion of the Dallman court’s analysis was based on Buckley, 424 U.S. 1, which allows public labor unions to “participate in political speech, specifically through political contributions.” No. 09SA224 at 49, citing Colo. Educ. Ass’n v. Rust, 184 P.3d 65, 76 (Colo. 2008).  While the thrust of Buckley is found in the decision, its application would be mismatched, as Buckley related to contribution limits while Amendment 54 banned them altogether. Dallman, No. 09SA224 at 51-52.  Indeed, the regime at issue in Dallman was even more restrictive than that in Buckley v. Valleo, 424 U.S. 1 (1976).

The Colorado Supreme Court drew several legal distinctions leading to the nullification of Amendment 54.  First, the amendment completely denied the public unions’ ability to make any donations, which is impermissible under Buckley; the amendment went too far in prohibiting all contributions in light of its stated purpose of targeting “large, potentially corruptive contributions.” Dallman, No. 09SA224 at 51-52.  Second, Amendment 54 prohibited unions from acting through a political action committee or other means, effectively shutting out not only their direct participation, but their influence as well, from the political arena. Id. at 52-53.   This, too, was contrary to Buckley for denying unions any political voice, and therefore contrary to the First Amendment. Id.  Finally, the court found it absurd that a provision intended to avoid the appearance of impropriety would apply to dealings with a labor union, as the state does not and cannot select the union with which it contracts. Id. at 53.  The court further found that collective bargaining agreements are so disparate from traditional procurement contracts that it would be unseemly for Amendment 54 to treat them identically, compromising the unions’ First Amendment rights. Id at 54.

Considering these factors, the Colorado Supreme Court found that Amendment 54 was not a valid limitation on unions’ First Amendment rights.  The amendment was not drawn closely enough to address only the problem of corruptive contribution without trammeling other forms of protected speech. Id at 53.  Additionally, the amendment did not have a sufficiently important government interest to warrant limiting the political speech of public unions. Id. at 54.

The outcome of this decision reveals that public unions’ speech cannot be fully silenced, although limits may be placed upon it.  The Colorado court relied on the Supreme Court’s jurisprudence, especially Buckley, to find that it was contrary to public unions’ First Amendment rights to deprive them of any speech in the political forum.  While the Colorado Supreme Court does not come out and say it, though, it may be receptive to minimal restrictions like those at issue in Buckley, as the Dallman court routinely referred back to that case.  To be consistent with Buckley and pass constitutional muster, though, any restrictions would have to be narrowly tailored to further a compelling state interest, consistent with strict scrutiny review. 424 U.S. at 64.  But as evinced by the Dallman decision, a blanket prohibition on political participation by a public union, even on grounds that could warrant the limitation of other groups’ speech, is inconsistent with the First Amendment and therefore unconstitutional.

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