On July 19, 2023, in Progressive Democrats for Social Justice vs. Bonta, the Ninth Circuit ruled that California Government Code Section 3205—which prohibits local government employees from soliciting campaign contributions from their co-workers—violates the First Amendment. Section 3205 prohibits such fundraising regardless of whether the solicitations occur in the workplace or utilize any public resources. Notably, the Ninth Circuit’s judgment largely hinged on the unusual scope of Section 3205—i.e., it restricts fundraising by local government employees but not State government employees.
SECTION 3205 VIOLATES THE FIRST AMENDMENT UNDER THE MOST DEFERENTIAL LEVEL OF SCRUTINY
As a threshold issue, the Ninth Circuit panel considered what level of scrutiny applied to its review of Section 3205, “closely drawn” scrutiny, as articulated in McCutcheon v. FEC, 572 U.S. 185 (2014), or the more deferential standard that applies to government employee speech under Pickering v. Board of Education, 391 U.S. 563 (1968). In the end, a majority of the panel did not decide which standard was appropriate—because it found that Section 3205 would fail either level of scrutiny.
The Ninth Circuit acknowledged that Section 3205 addresses the State’s interests in (1) freeing government employees from co-worker coercion to support political campaigns and (2) ensuring that the workplace is nonpartisan. But the majority struck down Section 3205 because it was not “properly tailored”—that is, it only applies to local government employees rather than State government employees. California attempted to justify this distinction based on the relative ability of the State agencies to protect their employees from retaliation versus local agencies, but the government produced no evidence supporting this position.
The Ninth Circuit estimated that more than a million local government employees in California are subject to Section 3205. But under this July 19 ruling, these employees can now engage in additional fundraising ahead of a busy 2024 election cycle that will involve high-profile local, State and federal races.
Given the Ninth Circuit’s focus on the distinction between local versus State employees, will the Legislature be willing to reinstitute the prohibition to both categories of government employees? If California wishes to reestablish this rule, the Ninth Circuit has made it clear that the Legislature must do so across the board.
For more information on this case or other matters relating to elections or ethics, please contact your RPLG attorney or Andrew Shen.
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