Imagine that you do business in California. Maybe you’re in construction, or health care, or auto repair. Now imagine some or all of your income comes from state contracts; using the above examples, perhaps you build schools, or take care of patients on Medi-Cal, or fix broken-down LAPD squad cars. Now imagine that the state comes in and says, aha, because we pay your bills – again, on contracts relating to construction, health care, auto repair, etc. – and we love unions, you can’t talk to your employees about any negative aspects of unionization. Ridiculous, right? Who is a customer to tell you what to do with money that’s already in your pocket?
Well, that’s precisely what the great state of California is trying to do with a new statute that small businesses are challenging in the case of Chamber of Commerce v. Brown. It’s a little bit more complicated than I outline above because the case implicates highly technical provisions of the National Labor Relations Act (and previous Supreme Court interpretations thereof), but the gist is that California is attempting to silence employers by tying speech restrictions to unrelated state spending. For reasons that the petitioners ably present in their briefs and that I summarize in a podcast and in Cato’s own amicus brief, the Supreme Court should strike down this statute.
In any event, that’s the background to my trip to the Court to hear argument in Chamber v. Brown today. (The plaza in front of the courthouse steps was remarkably free of demonstrators after yesterday’s hoopla surrounding the DC Gun Ban case.) I’ll save you the detailed summary of the argument, but suffice it to say that the outcome will almost certainly go against California. It’s always dicey predicting the scorecard, but based on oral argument it will probably be 7-2, 6-3, or maybe 6-1-2. On one side, Justices Scalia and Alito and Chief Justice Roberts were safely on the side of free speech; Justices Justice Souter surprisingly led the charge against California’s interpretation of labor law; Justice Breyer, though skeptical, will likely write his own opinion agreeing in the Court’s opinion for separate reasons or possibly calling for remand rather than strict reversal; and Justice Thomas was silent but is expected to join the majority. On the other side, Justices Stevens and Ginsberg seem to have no problem with California’s regulation. On his own side as usual, Justice Kennedy’s vote seems to be up for grabs, but – based on his decisions in previous labor and regulatory preemption cases – I would bet on him siding with the majority.
In short, California employers will live to speak another day.