YSURSA, SECRETARY OF STATE OF IDAHO, et al. v. POCATELLO EDUCATION ASSOCIATION et al.

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353 OCTOBER TERM, 2008
Syllabus
YSURSA, SECRETARY OF STATE OF IDAHO, et al.
v. POCATELLO EDUCATION ASSOCIATION et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 07–869. Argued November 3, 2008—Decided February 24, 2009
Idaho’s Right to Work Act permits public employees to authorize payroll
deductions for general union dues, but prohibits such deductions for
union political activities. Respondents—a group of Idaho public em
ployee unions—sued, alleging that the ban on payroll deductions for
political activities violated the First and Fourteenth Amendments. The
District Court upheld the ban at the state level, but struck it down as
it applies to local governments. In affirming, the Ninth Circuit stated
that, while Idaho has the ultimate control over local governmental units,
it did not actually operate or control their payroll deduction systems.
The court applied strict scrutiny to hold that the statute was unconstitu
tional as applied at the local level.
Held: Idaho’s ban on political payroll deductions, as applied to local gov
ernmental units, does not infringe the unions’ First Amendment
rights. Pp. 358–364.
(a) Content-based restrictions on speech are “presumptively invalid”
and subject to strict scrutiny. Davenport v. Washington Ed. Assn., 551
U. S. 177, 188. The First Amendment does not, however, impose an
obligation on government to subsidize speech. See Regan v. Taxation
With Representation of Wash., 461 U. S. 540, 549. Idaho’s law does not
restrict political speech, but rather declines to promote that speech by
allowing public employee checkoffs for political activities. Idaho’s pub
lic employee unions are free to engage in such speech as they see fit.
They simply are barred from enlisting the State in support of that en
deavor. Idaho’s decision to limit public employee payroll deductions as
it has does not infringe the unions’ First Amendment rights. The State
accordingly need only demonstrate a rational basis to justify the ban.
Idaho’s justification is the interest in avoiding the reality or appearance
of government favoritism or entanglement with partisan politics. See,
e. g., Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 565. And
the State’s response to the problem is limited to its source—political
payroll deductions. Cf. Davenport, supra. The ban plainly serves the
State’s interest in separating public employment from political activi
ties. Pp. 358–361.

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Syllabus
(b) The ban at issue is valid at the local level. The same deferential
review applies whether the ban is directed at state or local governmen
tal entities. Political subdivisions have never been considered sover
eign entities but are instead “subordinate governmental instrumentali
ties.” Reynolds v. Sims, 377 U. S. 533, 575. The State’s legislative
action is subject to First Amendment scrutiny whether it is applicable
at the state level, the local level, both, or some subpart of either, but no
case suggests that a different analysis applies depending on the level of
government affected. The ban furthers Idaho’s interest in separating
the operation of government from partisan politics, and that interest
extends to all public employers at whatever level of government.
Pp. 362–364.
504 F. 3d 1053, reversed.
Roberts, C. J., delivered the opinion of the Court, in which Scalia,
Kennedy, Thomas, and Alito, JJ., joined, and in which Ginsburg, J.,
joined as to Parts I and III. Ginsburg, J., filed an opinion concurring in
part and concurring in the judgment, post, p. 364. Breyer, J., filed an
opinion concurring in part and dissenting in part, post, p. 365. Stevens,
J., post, p. 370, and Souter, J., post, p. 375, filed dissenting opinions.
Clay R. Smith, Deputy Attorney General of Idaho, argued
the cause for petitioners. With him on the briefs were Law
rence G. Wasden, Attorney General, and James D. Carlson,
Deputy Attorney General.
Jeremiah A. Collins argued the cause for respondents.
With him on the brief were Laurence S. Gold, John E.
Rumel, John F. Greenfield, and Orrin D. Baird.*
*Briefs of amici curiae urging reversal were filed for the State of Utah
et al. by Mark L. Shurtleff, Attorney General of Utah, Annina M. Mitch
ell, Solicitor General, and Nancy L. Kemp, Assistant Attorney General,
and by the Attorneys General for their respective States as follows: John
W. Suthers of Colorado, Bill McCollum of Florida, Steve Carter of Indiana,
Thomas J. Miller of Iowa, Douglas F. Gansler of Maryland, Kelly A.
Ayotte of New Hampshire, and Greg Abbott of Texas; for Americans for
Limited Government by Kevin A. Hall; for the Evergreen Freedom Foun
dation et al. by Michael J. Reitz; for the Mountain States Legal Founda
tion by William Perry Pendley; and for the Utah Taxpayers Association
et al. by Maxwell A. Miller.
Deborah J. La Fetra and Timothy M. Sandefur filed a brief for the
Pacific Legal Foundation as amicus curiae.

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Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Court.
Under Idaho law, a public employee may elect to have a
portion of his wages deducted by his employer and remit
ted to his union to pay union dues. He may not, however,
choose to have an amount deducted and remitted to the
union’s political action committee, because Idaho law prohib
its payroll deductions for political activities. A group of
unions representing Idaho public employees challenged this
limitation. They conceded that the limitation was valid as
applied at the state level, but argued that it violated their
First Amendment rights when applied to county, municipal,
school district, and other local public employers.
We do not agree. The First Amendment prohibits gov
ernment from “abridging the freedom of speech”; it does not
confer an affirmative right to use government payroll mecha
nisms for the purpose of obtaining funds for expression.
Idaho’s law does not restrict political speech, but rather de
clines to promote that speech by allowing public employee
checkoffs for political activities. Such a decision is reason
able in light of the State’s interest in avoiding the appear
ance that carrying out the public’s business is tainted by par
tisan political activity. That interest extends to government
at the local as well as state level, and nothing in the First
Amendment prevents a State from determining that its po
litical subdivisions may not provide payroll deductions for
political activities.
I
Idaho’s Right to Work Act declares that the “right to work
shall not be infringed or restricted in any way based on
membership in, affiliation with, or financial support of a labor
organization or on refusal to join, affiliate with, or financially
or otherwise support a labor organization.” 1985 Idaho
Sess. Laws ch. 2, § 1 (codified at Idaho Code § 44–2001 (Michie
2003)). As part of that policy, the Act prohibits any require
ment for the payment of dues or fees to a labor organization

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Opinion of the Court
as a condition of employment, § 44–2003, but authorizes em
ployers to deduct union fees from an employee’s wages with
the employee’s “signed written authorization,” § 44–2004(1).
The Act covers all employees, “including all employees of the
state and its political subdivisions.” § 44–2011.
Prior to 2003, employees could authorize both a payroll
deduction for general union dues and a payroll deduction for
union political activities conducted through a political action
committee. App. 55–56, 83–84. In 2003, the Idaho Legisla
ture passed the Voluntary Contributions Act (VCA). 2003
Sess. Laws chs. 97 and 340 (codified at Idaho Code §§ 44–2601
through 44–2605, and § 44–2004). That legislation, among
other things, amended the Right to Work Act by adding
a prohibition on payroll deductions for political purposes.
That amendment provides: “Deductions for political activi
ties as defined in chapter 26, title 44, Idaho Code, shall not
be deducted from the wages, earnings or compensation of an
employee.” § 44–2004(2). The term “political activities” is
defined as “electoral activities, independent expenditures, or
expenditures made to any candidate, political party, political
action committee or political issues committee or in support
of or against any ballot measure.” § 44–2602(1)(e). Viola
tions of § 44–2004(2) are punishable by a fine not exceeding
$1,000 or up to 90 days of imprisonment, or both. § 44–2007.
Shortly before the VCA was to take effect, plaintiff labor
organizations sued the Bannock County prosecuting attor
ney, the Idaho secretary of state, and the Idaho attorney gen
eral in their official capacities, alleging that the ban on politi
cal payroll deductions was unconstitutional under the First
and Fourteenth Amendments to the United States Constitu
tion. App. 18–41.1 The District Court rejected that argu
1 The unions also challenged other provisions of the VCA, including one
requiring labor organizations to establish a “separate segregated fund” for
political activities. Idaho Code §§ 44–2601 through 44–2605 (Michie 2003);
see App. 27–34. In response to that challenge, the State agreed to strike
“all of the VCA except for its ban on political payroll deductions.” Poca

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Opinion of the Court
ment with respect to public employers at the state level, con
cluding that the First Amendment does not compel the State
“to subsidize speech by providing, at its own expense, payroll
deductions for the purpose of paying union dues or asso
ciation fees for State employees.” Pocatello Ed. Assn. v.
Heideman, 2005 WL 3241745, *2 (D Idaho, Nov. 23, 2005).
The ban was valid at the state level because “the State is
incurring costs to set up and maintain the [payroll deduction]
program.” Ibid. The court struck down the VCA, how
ever, “to the extent that it applies to local governments and
private employers,” because the State had failed to identify
any subsidy it provided to such employers to administer pay
roll deductions. Id., at *2 (footnote omitted), *6.
The state defendants appealed, contending that the ban on
political payroll deductions may be constitutionally applied
to local government employees. Pocatello Ed. Assn. v.
Heideman, 504 F. 3d 1053, 1057 (CA9 2007). Neither party
challenged the District Court’s rulings as to private and
state-level employees, and therefore the only issue remain
ing concerned application of the ban to local government
employees.
The Court of Appeals agreed with the District Court that
there was “no subsidy by the State of Idaho for the pay
roll deduction systems of local governments.” Id., at 1059.
The appellate court remarked that “the generalized lawmak
ing power held by the legislature with respect to a state’s
political subdivisions does not establish that the state is act
ing as a proprietor” with respect to local government em
tello Ed. Assn. v. Heideman, 2005 WL 3241745, *1 (D Idaho, Nov. 23, 2005).
The State asserted that the ban could be “given effect since it operates
without reference to the existence of a separate segregated fund.” Ibid.
(internal quotation marks omitted). The unions do not dispute that the
ban on political payroll deductions is severable from the other challenged
provisions. Plaintiffs’ Reply Memorandum in Support of Their Motion for
Summary Judgment and in Opposition to the State Defendants’ Motion for
Summary Judgment in No. Civ. 03–256–E–BLW (D Idaho, Aug. 15, 2005),
p. 3 (hereinafter Plaintiffs’ Reply Memorandum).

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ployers. Id., at 1064. The court instead regarded the rela
tionship between the State and its political subdivisions as
analogous to that between the State and a regulated private
utility. See id., at 1063–1065 (citing Consolidated Edison
Co. of N. Y. v. Public Serv. Comm’n of N. Y., 447 U. S. 530
(1980)). While “Idaho has the ultimate power of control
over the units of government at issue,” it did not “actually
operat[e] or contro[l] the payroll deduction systems of local
units of government.” 504 F. 3d, at 1068. The court there
fore applied strict scrutiny to Idaho’s decision to prevent
local government employers from allowing payroll deduc
tions for political purposes, and held the statute unconstitu
tional as applied at the local level. Ibid.
We granted certiorari, 552 U. S. 1294 (2008), and now
reverse.
II
Restrictions on speech based on its content are “presump
tively invalid” and subject to strict scrutiny. Davenport v.
Washington Ed. Assn., 551 U. S. 177, 188 (2007); R. A. V. v.
St. Paul, 505 U. S. 377, 382 (1992). The unions assert that
the ban on checkoffs for political activities falls into this cate
gory because the law singles out political speech for disfa
vored treatment.
The First Amendment, however, protects the right to be
free from government abridgment of speech. 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. “[A] legislature’s
decision not to subsidize the exercise of a fundamental right
does not infringe the right, and thus is not subject to strict
scrutiny. ” Regan v. Taxation With Representation of
Wash., 461 U. S. 540, 549 (1983); cf. Smith v. Highway Em
ployees, 441 U. S. 463, 465 (1979) (per curiam) (“First
Amendment does not impose any affirmative obligation on
the government to listen, to respond or, in this context, to
recognize [a labor] association and bargain with it”).

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Opinion of the Court
The court below concluded, and Idaho does not dispute,
that “unions face substantial difficulties in collecting funds
for political speech without using payroll deductions.” 504
F. 3d, at 1058. But the parties agree that the State is not
constitutionally obligated to provide payroll deductions at
all. See Plaintiffs’ Reply Memorandum 10; see also Toledo
Area AFL–CIO Council v. Pizza, 154 F. 3d 307, 319–320
(CA6 1998); cf. Charlotte v. Firefighters, 426 U. S. 283, 286
(1976) (“Court would reject . . . contention . . . that respond
ents’ status as union members or their interest in obtaining
a dues checkoff . . . entitle[s] them to special treatment under
the Equal Protection Clause”). While publicly administered
payroll deductions for political purposes can enhance the
unions’ exercise of First Amendment rights, Idaho is under
no obligation to aid the unions in their political activities.
And the State’s decision not to do so is not an abridgment of
the unions’ speech; they are free to engage in such speech as
they see fit. They simply are barred from enlisting the
State in support of that endeavor. Idaho’s decision to limit
public employer payroll deductions as it has “is not subject
to strict scrutiny” under the First Amendment. Regan, 461
U. S., at 549.
Given that the State has not infringed the unions’ First
Amendment rights, the State need only demonstrate a ra
tional basis to justify the ban on political payroll deductions.
Id., at 546–551. The prohibition is not “aim[ed] at the sup
pression of dangerous ideas,” id., at 548 (internal quotation
marks omitted), but is instead justified by the State’s inter
est in avoiding the reality or appearance of government fa
voritism or entanglement with partisan politics. We have
previously recognized such a purpose in upholding limita
tions on public employee political activities. See Civil Serv
ice Comm’n v. Letter Carriers, 413 U. S. 548, 565 (1973)
(public perception of partiality can undermine confidence in
representative government); Public Workers v. Mitchell, 330
U. S. 75, 96–100 (1947) (Congress may limit political acts by

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public officials to promote integrity in the discharge of official
duties); cf. Cornelius v. NAACP Legal Defense & Ed. Fund,
Inc., 473 U. S. 788, 809 (1985) (limitations on speech may be
justified by interest in “avoiding the appearance of political
favoritism”); Greer v. Spock, 424 U. S. 828, 839 (1976) (uphold
ing policy aimed at keeping official military activities “wholly
free of entanglement with partisan political campaigns of any
kind”). Banning payroll deductions for political speech simi
larly furthers the government’s interest in distinguishing be
tween internal governmental operations and private speech.
Idaho’s decision to allow payroll deductions for some pur
poses but not for political activities is plainly reasonable.2
Davenport guides our resolution here. That case also in
volved a distinction based on the content of speech: Specific
consent was required from nonunion members before agency
fees charged to them could be used for election-related activ
ities, but consent was not required with respect to agency
fees used for other purposes. 551 U. S., at 181–182. We re
jected the unions’ argument that this requirement violated
2 Justice Breyer finds this analysis inapplicable because the chal
lenged provision removes politically related deductions from an existing
system. Post, at 366 (opinion concurring in part and dissenting in part).
But available deductions do not have tenure; a legislature is free to ad
dress concerns as they arise.
Justice Breyer would also subject the ban to more exacting scrutiny
by analogizing it to various direct restrictions on expression. See post,
at 367–368. That analogy misses the mark. A decision not to assist fund
raising that may, as a practical matter, result in fewer contributions is
simply not the same as directly limiting expression. Cf. Regan v. Taxa
tion With Representation of Wash., 461 U. S. 540, 550 (1983) (“Although
[a union] does not have as much money as it wants, and thus cannot exer
cise its freedom of speech as much as it would like, the Constitution does
not confer an entitlement to such funds as may be necessary to realize all
the advantages of that freedom” (internal quotation marks omitted)). We
therefore would not subject Idaho’s statute to the “open-ended rough-and
tumble of factors” proposed by the dissent as an alternative to rational
basis review. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,
513 U. S. 527, 547 (1995); see post, at 368.

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the First Amendment because it turned on the content of the
speech at issue. Id., at 188–190. We recognized that the
statute, rather than suppressing union speech, simply de
clined to assist that speech by granting the unions the right
to charge agency fees for election activities. That decision
was reasonable given the State’s interest in preserving the
integrity of the election process. Ibid. We also concluded
that the State did “not have to enact an across-the-board
limitation . . . to vindicate [its] more narrow concern.” Id.,
at 189.
Here the restriction is on the use of a checkoff to fund
political activities, but the same analysis governs. Idaho
does not suppress political speech but simply declines to pro
mote it through public employer checkoffs for political activi
ties. The concern that political payroll deductions might be
seen as involving public employers in politics arises only be
cause Idaho permits public employer payroll deductions in
the first place. As in Davenport, the State’s response to
that problem is limited to its source—in this case, politi
cal payroll deductions. The ban on such deductions plainly
serves the State’s interest in separating public employment
from political activities.3
3 Justice Breyer suggests that the ban on political payroll deductions
may not be applied evenhandedly to all politically related deductions.
Post, at 369–370. Justice Stevens goes further and would find the ban
unconstitutional in all its applications as discriminatory. Post, at 370 (dis
senting opinion). The District Court, however, noted that the ban “is not
viewpoint-based,” 2005 WL 3241745, *3; the unions acknowledged in their
Court of Appeals brief that they “have not attempted to establish that
Section 44–2004(2) is based on viewpoint discrimination,” Brief for
Plaintiffs-Appellees in No. 06–35004 (CA9), p. 18, n. 13; and nothing in the
Questions Presented before this Court raised any issue of viewpoint
discrimination.
The ban on political payroll deductions is by its terms not limited to any
particular type of political contribution. Nothing in the record suggests
that public employers permit deductions for some political activities but
not for those of unions. Idaho’s attorney general—charged with enforcing
the ban—explicitly confirmed that it “applies to all organizations, to any

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Opinion of the Court
III
The question remains whether the ban is valid at the local
level. The unions abandoned their challenge to the restric
tion at the state level, but contend that strict scrutiny is
still warranted when the ban is applied to local government
employers. In that context, the unions argue, the State is
no longer declining to facilitate speech through its own pay
roll system, but is obstructing speech in the local govern
ments’ payroll systems. See Brief for Respondents 44–46.
We find that distinction unpersuasive, and hold that the same
deferential review applies whether the prohibition on payroll
deductions for political speech is directed at state or local
governmental entities.
“Political subdivisions of States—counties, cities, or what
ever—never were and never have been considered as sover
eign entities.” Reynolds v. Sims, 377 U. S. 533, 575 (1964).
They are instead “subordinate governmental instrumentali
ties 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 instrumen
talities of the State for the convenient administration of gov
ernment 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).
Here the Idaho Legislature has elected to withhold from all
public employers the power to provide payroll deductions for
political activities.
The State’s legislative action is of course subject to First
Amendment and other constitutional scrutiny whether that
deduction regarding political issues, applies regardless of viewpoint or
message, applies to all employers, and it does not single out any candidates
or issues.” App. 110. If the ban is not enforced evenhandedly, plaintiffs
are free to bring an as-applied challenge. See National Endowment for
Arts v. Finley, 524 U. S. 569, 587 (1998).

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action is applicable at the state level, the local level, both, or
some subpart of either. But we are aware of no case sug
gesting that a different analysis applies under the First
Amendment depending on the level of government affected,
and the unions have cited none. The ban on political pay
roll deductions furthers Idaho’s interest in separating the
operation of government from partisan politics. That inter
est extends to all public employers at whatever level of
government.
In reaching the opposite conclusion, the Court of Appeals
invoked our decision in Consolidated Edison Co. of N. Y. v.
Public Serv. Comm’n of N. Y., 447 U. S. 530. In that case,
we held that a state commission could not, consistent with
the First Amendment, prohibit a privately owned electric
utility from discussing controversial issues in its bill inserts.
Id., at 544. We ruled that the fact that the State regulated
the utility did not authorize the prohibition. Id., at 540.
The Court of Appeals concluded that the same analysis ap
plied here, and that “the State’s broad powers of control over
local government entities are solely those of a regulator,
analogous to the [state commission’s] regulatory powers over
[the private utility].” 504 F. 3d, at 1065.
That analogy is misguided. A private corporation is sub
ject to the government’s legal authority to regulate its con
duct. A political subdivision, on the other hand, is a subor
dinate unit of government created by the State to carry out
delegated governmental functions. A private corporation
enjoys constitutional protections, see First Nat. Bank of
Boston v. Bellotti, 435 U. S. 765, 778, n. 14 (1978), but a politi
cal subdivision, “created by a state for the better ordering
of government, has no privileges or immunities under the
federal constitution which it may invoke in opposition to the
will of its creator.” Williams v. Mayor of Baltimore, 289
U. S. 36, 40 (1933); see Trenton v. New Jersey, supra, at 185
(municipality, as successor to a private water company, does
not enjoy against the State the same constitutional rights as

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Opinion of Ginsburg, J.
the water company: “The relations existing between the
State and the water company were not the same as those
between the State and the City”).
Both the District Court and the Court of Appeals found it
significant that “there is no subsidy by the State of Idaho for
the payroll deduction systems of local governments.” 504
F. 3d, at 1059; see also 2005 WL 3241745, *2. The Court of
Appeals emphasized that there was no evidence that “Idaho
has attempted to use its asserted powers to manage the
day-to-day operations of local government personnel.” 504
F. 3d, at 1067. Given the relationship between the State and
its political subdivisions, however, it is immaterial how the
State allocates funding or management responsibilities be
tween the different levels of government. The question is
whether the State must affirmatively assist political speech
by allowing public employers to administer payroll deduc
tions for political activities. For the reasons set forth in this
opinion, the answer is no.
* * *
The Court of Appeals ruling that Idaho Code § 44–2004(2)
is unconstitutional with respect to local units of government
is reversed.
It is so ordered.
Justice Ginsburg, concurring in part and concurring in
the judgment.
The classification question this case presents can be an
swered without extended discussion. The parties agree
here, as they did in the Court of Appeals, that Idaho’s ban
on payroll deductions for political activities violates First
Amendment limitations as applied to the private sector.
They also agree here, as they did before the Ninth Circuit,
that the ban is permissible as applied to state-level govern
ment entities. See ante, at 357, 362; Tr. of Oral Arg. 4. The
sole question posed for this Court’s decision is the appro

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Opinion of Breyer, J.
priate placement of the State’s political subdivisions: For the
purpose at hand, should the Court align local-government
employment with private-sector employment or with state
level employment?
“Given the relationship between the State and its political
subdivisions,” the Court persuasively explains, “it is im
material how the State allocates funding or management
responsibilities between the different levels of government.”
Ante, at 364. I agree that, in the context here involved, the
Constitution compels no distinction between state and local
governmental entities. I therefore join Parts I and III of
the Court’s opinion and concur in the Court’s judgment.
Justice Breyer, concurring in part and dissenting in
part.
In Part III of its opinion, the Court points out that the
law ordinarily treats municipalities as creatures of the State.
See Reynolds v. Sims, 377 U. S. 533, 575 (1964). Hence the
fact that a state statute, rather than a municipal ordinance,
limits the use of the municipality’s payroll deduction system
is beside the point. I agree that this is so, and I agree with
Justice Souter’s discussion about the relationship between
the State and the municipality.
I do not agree, however, with the Court’s further analysis
of the pertinent legal question—whether the state statute
violates the First Amendment. Nor do I agree with its ulti
mate conclusion. Rather, in my view, we should remand
this case for further consideration.
The Court’s First Amendment analysis emphasizes its
characterization of the statute as not “abridging” a union’s
or a worker’s “freedom of speech,” but rather “declin[ing] to
promote” that speech. Ante, at 355 (internal quotation marks
omitted). I agree that the First Amendment does not pro
hibit government from “declining to promote” speech. It
says that government shall not “abridg[e] the freedom of

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speech.” (Emphasis added.) But I do not think the distinc
tion particularly useful in this case.
That is because here the distinction is neither easy to draw
nor likely to prove determinative. Sometimes, I concede,
the distinction may help. Were there no payroll deduction
system at all and were the unions arguing for the creation
of such a system from scratch, one might characterize their
claim as seeking the promotion of speech. But that is not
the situation here. A deduction system already exists.
The unions attack a separate statutory provision that re
moves politically related deductions from that system. And
linguistically speaking, one need not characterize such an at
tack as (1) seeking speech promotion rather than (2) seeking
to prevent an abridgment of political-speech-related activity
that otherwise (i. e., in the absence of the exception) would
occur. In such an instance, the debate over characterization
is more metaphysical than practical.
More importantly, the characterization quite possibly does
not matter. Suppose, for example, a somewhat similar stat
utory exception picks and chooses among political causes,
prohibiting deductions that help one political party while
permitting deductions that help another. The First Amend
ment result could not turn upon whether one described
the exception as an “abridgment” or a “promotion” failure.
And, as I shall explain, infra, at 369–370, such may be the
case here.
I disagree with the Court’s characterizations in another
respect. The Court says that because the exception “has
not infringed the unions’ First Amendment rights,” “strict
scrutiny” does not apply and, thus, the State “need only dem
onstrate a rational basis”—the standard of review applica
ble to any ordinary legislation that does not infringe fun
damental rights—“to justify the ban on political payroll
deductions.” Ante, at 359 (emphasis added). I agree that
the exception does not call for “strict scrutiny”—a categori
zation that almost always proves fatal to the law in question.

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Opinion of Breyer, J.
After all, the exception does not restrict the content of the
unions’ speech, impose a prior restraint on that speech, or
ban union speech on political issues altogether.
But I disagree with the Court in that I believe there is a
First Amendment interest at stake. The exception affects
speech, albeit indirectly, by restricting a channel through
which speech-supporting finance might flow. As a result,
the alternative to “strict scrutiny” is not necessarily a form
of “rational basis” review—a test that almost every restric
tion will pass. And instead of applying either “strict scru
tiny” or “rational basis” review to the statutory exception,
I would ask the question that this Court has asked in other
speech-related contexts, namely, whether the statute im
poses a burden upon speech that is disproportionate in light
of the other interests the government seeks to achieve. See
Burdick v. Takushi, 504 U. S. 428, 433–434 (1992) (election
regulation); Nixon v. Shrink Missouri Government PAC,
528 U. S. 377, 403 (2000) (Breyer, J., concurring) (collecting
cases); see also, e. g., Thompson v. Western States Medical
Center, 535 U. S. 357, 388 (2002) (Breyer, J., dissenting) (dis
cussing the Court’s application of this approach in the com
mercial speech context); Denver Area Ed. Telecommunica
tions Consortium, Inc. v. FCC, 518 U. S. 727, 740–747 (1996)
(plurality opinion) (cable programming regulation); Picker
ing v. Board of Ed. of Township High School Dist. 205, Will
Cty., 391 U. S. 563, 568 (1968) (government employee speech).
Constitutional courts in other nations also have used similar
approaches when facing somewhat similar problems. See,
e. g., Libman v. Quebec (Attorney General), [1997] 3 S. C. R.
569 (Canada) (applying proportionality in the campaign fi
nance context); Bowman v. United Kingdom, 26 Eur. Ct.
H. R. 1 (1998) (same); Midi Television (Pty) Ltd v. Director
of Public Prosecutions 2007 SCA 56 (S. Afr.) (applying pro
portionality in the freedom of press context); Bakri v. Israel
Film Council, HCJ 316/303 (Isr. Sup. Ct. 2003) (applying
proportionality in the freedom of expression context).

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368 YSURSA v. POCATELLO ED. ASSN.
Opinion of Breyer, J.
In these cases the Court has sought to determine whether
the harm to speech-related interests is disproportionate in
light of the degree of harm, justifications, and potential alter
natives. In doing so, it has considered the seriousness of
the speech-related harm the provision will likely cause, the
importance of the provision’s countervailing objectives, the
extent to which the statute will tend to achieve those objec
tives, and whether there are other less restrictive ways of
doing so. In light of these considerations, it has determined
whether ultimately the statute works speech-related harm
that is out of proportion to its justifications. See Board of
Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480
(1989) (describing need for a “fit” between legislative ends
and means “whose scope is ‘in proportion to the interest
served’ ”); United States v. American Library Assn., Inc.,
539 U. S. 194, 217–218 (2003) (Breyer, J., concurring in
judgment).
Where context calls for “strict scrutiny,” one would not
necessarily ask these proportionality questions; but I would
ask them in other contexts calling for less than ordinary leg
islative leeway in light of the fact that constitutionally pro
tected expression is at issue. See id., at 218. To do so, in
my view, helps structure what the Court sometimes calls an
“intermediate scrutiny” inquiry. See Turner Broadcasting
System, Inc. v. FCC, 512 U. S. 622 (1994).
Applying this analysis here, I would find the statutory ex
ception constitutional, but only if I were convinced that the
exception applied evenhandedly among similar politically
related contributions. If so, the provision would still neg
atively affect speech-related interests, for it would close
off one channel through which individuals might provide
speech-enabling funds to political institutions. But, as the
majority points out, many other channels for those funds
exist, and the State has a strong interest in “avoiding the
reality or appearance of government favoritism or entangle
ment with partisan politics,” ante, at 359. I would conse

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Opinion of Breyer, J.
quently find the restriction justified as proportionately serv
ing a legitimate, important governmental need. Cf. Fox,
supra, at 480.
It is not clear, however, whether the particular exception
before us does, in fact, operate evenhandedly. To read the
statute without more, I concede, suggests evenhandedness.
The provision says that “[d]eductions for political activities
as defined in chapter 26, title 44, Idaho Code, shall not be
deducted from the wages, earnings or compensation of an
employee.” Idaho Code § 44–2004(2) (Michie 2003) (empha
sis added). And chapter 26, title 44, Idaho Code, defines
“political activities” without special reference to labor orga
nizations. See § 44–2602(1)(e).
Nonetheless, certain features of the provision suggest it
may affect some politically related deductions, namely,
labor-related deductions, but not others. Title 44 of the
Idaho Code—entitled “Labor”—is about labor activities.
And the ban on payroll deductions for political activities was
enacted as part of a statute in which every other provision
is concerned solely with union activities. See Voluntary
Contributions Act, 2003 Idaho Sess. Laws chs. 97 and 340
(codified at Idaho Code §§ 44–2601 through 44–2605 and § 44–
2004). At the same time, the provision containing the pay
roll deduction ban is immediately followed by another related
provision that expressly mentions labor unions. See § 44–
2004(3) (“Nothing in this chapter shall prohibit an employee
from personally paying contributions for political activities
. . . to a labor organization unless such payment is prohibited
by law” (emphasis added)).
It is important to know whether the exception concerns
only labor-related political deductions (while allowing other
similar deductions) or treats all alike. A restriction that
applies to the political activities of unions alone would
seem unlikely to further the government’s justifying objec
tive, namely, providing the appearance of political neutral
ity. And in that case, the provision could well bring about

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370 YSURSA v. POCATELLO ED. ASSN.
Stevens, J., dissenting
speech-related harm that is disproportionate to the statute’s
tendency to further the government’s “neutrality” objective.
Because the Court of Appeals analyzed the issue as if the
State “regulated” its municipalities (as government might
regulate a private firm), it did not resolve the questions I
have just described. I would remand the case so that it can
decide whether the parties appropriately raised those mat
ters and, if so, consider them. Accordingly, I would vacate
the Court of Appeals’ judgment and remand the case.
Justice Stevens, dissenting.
In both the public and private sector, payroll managers
routinely remit portions of employees’ wages to third parties
pursuant to the employees’ written instructions. For dec
ades, employers in Idaho had discretion to allow such payroll
deductions. In 2003, however, the State enacted the Volun
tary Contributions Act (VCA), 2003 Sess. Laws chs. 97 and
340 (codified at Idaho Code § 44–2004 and §§ 44–2601 through
44–2605 (Michie 2003)), which, among other things, prohibits
employers from allowing any payroll deduction for “political
activities,” § 44–2004(2). For several reasons, I cannot con
clude as the Court does that this restriction on payroll
deductions was reasonably calculated to further the State’s
“interest in separating the operation of government from
partisan politics,” ante, at 363. Because it is clear to me that
the restriction was intended to make it more difficult for
unions to finance political speech, I would hold it unconstitu
tional in all its applications.
I
“It is axiomatic that the government may not regulate
speech based on its substantive content or the message it
conveys.” Rosenberger v. Rector and Visitors of Univ. of
Va., 515 U. S. 819, 828 (1995). On its face, § 44–2004(2) re
stricts payroll deductions for all political activities, and pe
titioners contend that the State reasonably enacted § 44–

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371 Cite as: 555 U. S. 353 (2009)
Stevens, J., dissenting
2004(2) “to avoid either the appearance or the reality of pub
lic employer involvement in . . . electoral politics.” Tr. of
Oral Arg. 15. Several features of the statute, however, belie
its purported viewpoint neutrality.
That the restriction was more narrowly intended to target
union fundraising is first evidenced by its statutory context.
The other provisions of the VCA with which § 44–2004(2)
was enacted pertain exclusively to unions.1 For instance,
§ 44–2603 requires unions to create separate funds for politi
cal activities and places restrictions on unions’ solicitation
of political contributions; § 44–2604 makes it a misdemeanor,
among other things, for unions to make expenditures for po
litical activities from union dues; and § 44–2605 establishes
registration and reporting requirements for union politi
cal funds. The provisions proximate to § 44–2004(2), which
were enacted roughly two decades earlier as part of the
Right to Work Act, 1985 Sess. Laws ch. 2, § 1 (codified at
Idaho Code § 44–2001 et seq.), are similarly directed at union
activities. Even the subsection immediately preceding § 44–
2004(2) is aimed specifically at unions: Section 44–2004(1)
prohibits payroll deductions for union dues, fees, assess
ments, or other charges without an employee’s prior written
authorization. And, finally, § 44–2004(2) is codified in a title
of the Idaho Code entitled “Labor” and in a chapter enti
tled “Right to Work.” Together, these statutory features
strongly suggest that the Idaho Legislature enacted § 44–
2004(2) specifically to impede union fundraising.
The statute’s discriminatory purpose is further evidenced
by its substantial overinclusiveness and underinclusiveness
with respect to the State’s asserted interest in passing the
legislation. Petitioners contend that the restriction was
1 Respondents also challenged these provisions of the VCA, and petition
ers conceded their invalidity earlier in this litigation, acknowledging that
they violated the First Amendment by restricting the ability of labor orga
nizations to solicit political contributions. See Pocatello Ed. Assn. v.
Heideman, 504 F. 3d 1053, 1057 (CA9 2007).

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372 YSURSA v. POCATELLO ED. ASSN.
Stevens, J., dissenting
enacted to further the State’s interest in avoiding the ap
pearance or actuality of public employer involvement in par
tisan politics. See Tr. of Oral Arg. 15. But, as enacted,
§ 44–2004(2) prohibited private as well as public employers
from making payroll deductions for political activities. As
petitioners admitted at oral argument, “the State has no in
terest in . . . private employers’ determination to be involved
or not involved in political matters.” Id., at 6. That peti
tioners conceded the invalidity of § 44–2004(2) as applied to
private employers earlier in this litigation does not require
us to ignore the breadth of the statute the State enacted in
assessing the provision’s scope and purpose. Consideration
of the provision actually passed by the legislature makes
clear that the State’s asserted interest in the restriction is
not compatible with its breadth.
The State’s interest in avoiding the appearance or reality
of employer political involvement is also inconsistent with its
decision not to restrict deductions for charitable activities.
Such deductions will often present a similar risk of creating
an appearance of political involvement as deductions for cov
ered political activities. Yet the State has made no effort
to distinguish this type of political activity. As with the
State’s decision to apply § 44–2004(2) to private employers,
its failure to apply the restriction to charitable deductions
produces a significant mismatch between the restriction’s
reach and its asserted purpose.
To my mind, it is clear from these features of the legisla
tion that § 44–2004(2)’s prohibition on payroll deductions for
“political activities” was intended to target union political
activity. Cf. Chamber of Commerce of United States v.
Brown, 554 U. S. 60, 70–71, 73 (2008) (noting that a rule re
stricting the use of state funds to promote or oppose un
ionization impermissibly expressed a pro-union preference,
thereby chilling one side of the public debate).2 The majori
2 It may even be true that § 44–2004(2) only affects union political activ
ity, as petitioners can point to no evidence that another entity is affected

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Stevens, J., dissenting
ty’s facile assertion that the First Amendment does not con
fer a right to government subsidization of private speech
cannot validate an evidently discriminatory restriction on
fundraising for political speech.3
II
Although the statute’s discriminatory purpose provides an
adequate ground for deciding this case, I briefly note my
disagreement with the majority’s analysis of § 44–2004(2)’s
constitutionality as applied to local government employees.
The Court of Appeals found this application of the provision
invalid due to the State’s failure to show that it “actually
operates or controls the payroll deduction systems of local
units of government.” Pocatello Ed. Assn. v. Heideman,
504 F. 3d 1053, 1068 (CA9 2007).4 In the absence of evidence
of such control, the Court of Appeals held, “the State has
a relatively weak interest in preventing [respondents] from
exercising their First Amendment rights.” Ibid.
by the statute. See Tr. of Oral Arg. 8. But it is unnecessary to deter
mine whether other entities are actually affected by the restriction in light
of its clearly discriminatory purpose.
3 The discriminatory nature of § 44–2004(2) distinguishes it from the re
striction we upheld in Davenport v. Washington Ed. Assn., 551 U. S. 177
(2007)—a decision on which the majority heavily relies. In that case,
state law authorized public-sector unions to charge nonmembers an agency
fee equivalent to membership dues and to have employers collect that fee
through payroll deductions. Respondent challenged the validity of a
state ballot initiative requiring public-sector unions to obtain nonmem
bers’ affirmative authorization before using their fees for political pur
poses. We held that the affirmative-authorization provision did not vio
late respondent’s First Amendment rights because it merely placed a
viewpoint-neutral limitation on an “extraordinary” state-law entitlement
allowing it to collect and spend the money of government employees. Id.,
at 189–190. By contrast, § 44–2004(2) is not a limitation on a state-law
entitlement that specifically benefits unions but rather a union-specific ex
clusion from a generally available benefit.
4 The State conceded at oral argument before the Court of Appeals that
it is not the proprietor of local government workplaces or their payroll
deduction programs. See 504 F. 3d, at 1065.

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374 YSURSA v. POCATELLO ED. ASSN.
Stevens, J., dissenting
Unlike the Court of Appeals, the majority omits any exam
ination of the relationship Idaho has established with its po
litical subdivisions. Rather, the majority finds it sufficient
to assert that States, as the creators of local government,
retain the authority to grant or withdraw subdivision powers
and privileges. Ante, at 362. The fact of that authority,
however, hardly proves that the particular relationship be
tween a State and its political subdivisions is irrelevant to
our constitutional inquiry. All States do not treat their sub
divisions the same, and those differences are sometimes
consequential.
We have in other contexts recognized the constitutional
significance of the relationship a State chooses to establish
with its political subdivisions. For instance, in Mt. Healthy
City Bd. of Ed. v. Doyle, 429 U. S. 274, 280 (1977), we stated
that the answer to the question whether a school board
should “be treated as an arm of the State partaking of the
State’s Eleventh Amendment immunity . . . depends, at least
in part, upon the nature of the entity created by state law.”
And in McMillian v. Monroe County, 520 U. S. 781, 786
(1997), we held that whether a sheriff has county or state
policymaking authority for purposes of determining liability
under Rev. Stat. § 1979, 42 U. S. C. § 1983, is ascertained by
reference to “the actual function of a governmental official,”
which is in turn “dependent on the definition of the official’s
functions under relevant state law.” In both cases, the con
stitutional analysis turned in part on the way the State had
structured its relationship with its political subdivisions.
Although we have not previously considered the impli
cations of the state-subdivision relationship in the First
Amendment context, we have repeatedly recognized the sig
nificance of an analogous inquiry: whether the government,
in imposing speech restrictions, is acting in its capacity as
regulator or proprietor. See, e. g., Davenport v. Washing
ton Ed. Assn., 551 U. S. 177, 189 (2007); Cornelius v. NAACP
Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 805–806

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Souter, J., dissenting
(1985). Accordingly, I cannot agree with the majority’s as
sertion that, because political subdivisions are instrumentali
ties of the State, “it is immaterial how the State allocates
funding or management responsibilities between the differ
ent levels of government,” ante, at 364. Relationships be
tween state and local governments are more varied, and the
consequences of that variation are more significant, than the
majority’s analysis admits.
Because my conclusion that § 44–2004(2) discriminates
against labor organizations is sufficient to decide this case,
I find it unnecessary to fully consider the implications of
Idaho’s relationship with its political subdivisions. Rather,
I note the significance of this relationship to urge its careful
consideration in future cases.
III
The majority avoids acknowledging § 44–2004(2)’s evi
dently discriminatory purpose only by examining the statute
out of context and ignoring its initial applicability to private
employers. Considering the provision as enacted, I cannot
find it justified as the majority does by “the State’s interest
in avoiding the reality or appearance of government favorit
ism or entanglement with partisan politics,” ante, at 359.
The impermissible purpose that quite obviously motivated
the enactment of the VCA and fully justified its invalidation
as applied to private employers should have produced a judg
ment in this case holding the entire statute invalid, rather
than a judgment producing a new statute that the Idaho Leg
islature did not enact.
I respectfully dissent.
Justice Souter, dissenting.
If I thought this case should be classified solely as one
about the First Amendment’s limits on a State’s management
of its own affairs, I would join the judgment, and as it is I
agree with much of the Court’s opinion. So far as Idaho’s

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376 YSURSA v. POCATELLO ED. ASSN.
Souter, J., dissenting
law affects freedom of expression, I am not persuaded there
is sufficient reason to treat the State’s statutory prohibition
differently depending on the unit of its government employ
ing the worker whose salary deduction would fund political
activity. There is no question in this case that the lower
echelons of Idaho government are creatures of the State ex
ercising state power in discharging what are ultimately state
responsibilities. Nor is there any apparent reason to think
the State’s asserted legitimate interest differs according to
the level of government doing the State’s work, whether that
interest is having a firewall between public administration
and politics or simply exercising a power to decide whether
public employees who administer payrolls should spend work
time advancing private political speech.
But I find it impossible to stop there. Although this case
comes to us as one about the scope of the public business the
State is free, within reasonable limits, to manage as it thinks
wise, the specter of another First Amendment category, one
of superior significance, is too insistent to ignore. It is true
that government may choose to manage its own affairs in
ways that draw reasonable subject-matter lines affecting
speech, being free, for example, to sell space on its buses for
advertising soap but not politicians. See Lehman v. Shaker
Heights, 418 U. S. 298 (1974). But a government is not free
to draw those lines as a way to discourage or suppress the
expression of viewpoints it disagrees with, Cornelius v.
NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806,
811–812 (1985); Perry Ed. Assn. v. Perry Local Educators’
Assn., 460 U. S. 37, 46, 49 (1983); only narrow tailoring to
serve a compelling state interest could justify that kind of
selectivity, see United States v. Playboy Entertainment
Group, Inc., 529 U. S. 803, 813 (2000).
This difference between viewpoint discrimination and neu
tral regulation of governmental activity is on point in this
case. For although the State invokes its legitimate interest
in keeping public administration free from political involve

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377 Cite as: 555 U. S. 353 (2009)
Souter, J., dissenting
ment as its reason for Idaho Code § 44–2004(2) (Michie 2003),
this ostensibly viewpoint-neutral rationale suffers from the
circumstances Justice Stevens describes in detail, see
ante, at 371–373 (dissenting opinion). Every other provision
of the amendatory act in which § 44–2004(2) was included
deals with unions, the statute amended regulates unions, and
all this legislation is placed in the State’s labor law codifica
tion. Ante, at 371. Union speech, and nothing else, seems
to have been on the legislative mind.
The Court’s answer to this recalls Davenport v. Washing
ton Ed. Assn., 551 U. S. 177 (2007), in suggesting that Idaho
was merely limiting a self-created risk of entangling public
administration with politics, which followed from authorizing
public payroll deductions for union benefit in the first place,
ante, at 360–361. But the scope of the state enactment that
imposes the prohibition places that explanation in question,
for the statute goes beyond constraining the government as
employer, and criminalizes deductions for political purposes
even when administered by private employers, an application
of the law the State concedes is unconstitutional. Pocatello
Ed. Assn. v. Heideman, 504 F. 3d 1053, 1057 (CA9 2007).
Hence a reader of the statute may fairly suspect that Idaho’s
legislative object was not efficient, clean government, but
that unions’ political viewpoints were its target, selected
out of all the politics the State might filter from its public
workplaces.
What to do about this reasonable suspicion of viewpoint
discrimination is a dilemma. We can hardly disregard it, for
it affects the weight this case can carry as precedent; a deci
sion that ignores the elephant in the room is a decision with
diminished authority. But the potential issue of viewpoint
discrimination that should be addressed in this case is not
before us. Although the unions’ brief alludes to viewpoint
discrimination in several places, that is not the focus of their
argument. The unions, instead, aim at showing that the
State is acting as a regulator of local governments (much as

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it regulates private corporations), not as a manager setting
limits to what government will do with public resources; con
sequently they rest their position on the argument that any
state discrimination against political speech is illegitimate,
however consistently all shades of political speech may be
treated. And even if we could properly recast the case by
remanding to consider viewpoint discrimination, see Corne
lius, supra, at 811–812, a remand could only affect the appli
cation of the statute to subordinate units of government; the
unions have accepted the constitutionality of applying the
law to the State, where an effort at viewpoint discrimination
would be as unconstitutional as it would be at the level of
a town.
The upshot is that if we decide the case as it comes to us
we will shut our eyes to a substantial, if not the substantial,
issue raised by the facts. But if we were to expand the is
sues presented to us by remanding for enquiry into view
point discrimination, we would risk having to wink later at
an unconstitutional application of the law to the State, owing
to the unions’ decision not to challenge that application
either in the Ninth Circuit or before us. This is a good de
scription of a case that should not be in this Court as a vehi
cle to refine First Amendment doctrine.
I would dismiss the writ of certiorari as improvidently
granted, and I respectfully dissent.