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Chamber v. Brown predictions
March 19, 2008 by Ross Runkel at LawMemo

Chamber of Commerce v. Brown was argued this morning at the US Supreme Court. [Details; briefs] [Transcript of argument]

I have nothing better to do than make a prediction on the outcome of this important case.

My view: California (Brown) will win, 6-3 or better.
Paul Secunda's (Workplace Prof Blog) view: Chamber of Commerce will win, 6-3.

California's statute simply says that an employer that receives state funds or grants cannot spend that money "to assist, promote, or deter union organizing." Violation of that restriction, of course, carries penalties.

The Chamber argues that California's statute is preempted by two well-known preemption doctrines. California disagrees, saying that the statute acts in a neutral way to keep employers from spending state money to deter union organizing.

Today's oral argument was interesting because there was a good discussion of labor law preemption, and the distinction between the State acting in a proprietary role versus a regulatory role.

I believe the Court will surprise many onlookers by using a reasoning process that goes something like this:

1. The Court does not like facial challenges to the legality of statutes. Does not like them at all. For example: Washington State Grange v. Washington State Republican Party (March 18, 2008 ); Gonzales v. Carhart (2007).
2. The case raises serious questions of federalism and state sovereignty, which will be resolved as follows: Once a state decides to give money to a private party, the state has the power to limit what the money is spent for, even though it appears that the state is meddling with national labor policy. National labor policy does not require states to allow state funds to be used for anti-union or pro-union advocacy.
3. To the extent that California employers are concerned that the statute unduly tangles them in red tape or has a real-life effect of regulating labor relations, they can attack the statute as it has been applied.

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