(Slip Opinion) OCTOBER TERM, 2007 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CHAMBER OF COMMERCE OF THE UNITED STATES
OF AMERICA ET AL. v. BROWN, ATTORNEY GENERAL
OF CALIFORNIA, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 06–939. Argued March 19, 2008—Decided June 19, 2008
Organizations whose members do business with California sued to en-
join enforcement of “Assembly Bill 1889” (AB 1889), which, among
other things, prohibits employers that receive state grants or more
than $10,000 in state program funds per year from using the funds
“to assist, promote, or deter union organizing.” Cal. Govt. Code Ann.
§§16645.2(a), 16645.7(a). The District Court granted the plaintiffs
partial summary judgment, holding that the National Labor Rela-
tions Act (NLRA) pre-empts §§16645.2 and 16645.7 because they
regulate employer speech about union organizing under circum-
stances in which Congress intended free debate. The Ninth Circuit
reversed, concluding that Congress did not intend to preclude States
from imposing such restrictions on the use of their own funds.
Held: Sections 16645.2 and 16645.7 are pre-empted by the NLRA.
Pp. 4–16.
(a) The NLRA contains no express pre-emption provision, but this
Court has held pre-emption necessary to implement federal labor pol-
icy where, inter alia, Congress intended particular conduct to “be un-
regulated because left ‘to be controlled by the free play of economic
forces.’ ” Machinists v. Wisconsin Employment Relations Comm’n, 427
U. S. 132, 140. Pp. 4–5.
(b) Sections 16645.2 and 16645.7 are pre-empted under Machinists
because they regulate within “a zone protected and reserved for mar-
ket freedom.” Building & Constr. Trades Council v. Associated
Builders & Contractors of Mass./R. I., Inc., 507 U. S. 218, 227. In
1947, the Taft-Hartley Act amended the NLRA by, among other
2 CHAMBER OF COMMERCE OF UNITED STATES
v. BROWN
Syllabus
things, adding §8(c), which protects from National Labor Relations
Board (NLRB) regulation noncoercive speech by both unions and em-
ployers about labor organizing. The section both responded to prior
NLRB rulings that employers’ attempts to persuade employees not to
organize amounted to coercion prohibited as an unfair labor practice
by the previous version of §8 and manifested a “congressional intent
to encourage free debate on issues dividing labor and management.”
Linn v. Plant Guard Workers, 383 U. S. 53, 62. Congress’ express
protection of free debate forcefully buttresses the pre-emption analy-
sis in this case. California’s policy judgment that partisan employer
speech necessarily interferes with an employee’s choice about union
representation is the same policy judgment that Congress renounced
when it amended the NLRA to preclude regulation of noncoercive
speech as an unfair labor practice. To the extent §§16645.2 and
16645.7 actually further AB 1889’s express goal, they are unequivo-
cally pre-empted. Pp. 5–8.
(c) The Ninth Circuit’s reasons for concluding that Machinists did
not pre-empt §§16645.2 and 16645.7—(1) that AB 1889’s spending re-
strictions apply only to the use of state funds, not to their receipt; (2)
that Congress did not leave the zone of activity free from all regula-
tion, in that the NLRB still regulates employer speech on the eve of
union elections; and (3) that California modeled AB 1889 on federal
statutes, e.g., the Workforce Investment Act—are not persuasive.
Pp. 8–16.
463 F. 3d 1076, reversed and remanded.
STEVENS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, SOUTER, THOMAS, and ALITO, JJ., joined.
BREYER, J., filed a dissenting opinion, in which GINSBURG, J., joined.
Cite as: 554 U. S. ____ (2008) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–939
_________________
CHAMBER OF COMMERCE OF THE UNITED STATES
OF AMERICA, ET AL., PETITIONERS v. EDMUND G.
BROWN, JR., ATTORNEY GENERAL OF
CALIFORNIA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 19, 2008]
JUSTICE STEVENS delivered the opinion of the Court.
A California statute known as “Assembly Bill 1889” (AB
1889) prohibits several classes of employers that receive
state funds from using the funds “to assist, promote, or
deter union organizing.” See Cal. Govt. Code Ann.
§§16645–16649 (West Supp. 2008). The question pre-
sented to us is whether two of its provisions—§16645.2,
applicable to grant recipients, and §16645.7, applicable to
private employers receiving more than $10,000 in program
funds in any year—are pre-empted by federal law mandat-
ing that certain zones of labor activity be unregulated.
I
As set forth in the preamble, the State of California
enacted AB 1889 for the following purpose:
“It is the policy of the state not to interfere with an
employee’s choice about whether to join or to be repre-
sented by a labor union. For this reason, the state
should not subsidize efforts by an employer to assist,
promote, or deter union organizing. It is the intent of
the Legislature in enacting this act to prohibit an em-
2 CHAMBER OF COMMERCE OF UNITED STATES
v. BROWN
Opinion of the Court
ployer from using state funds and facilities for the
purpose of influencing employees to support or oppose
unionization and to prohibit an employer from seeking
to influence employees to support or oppose unioniza-
tion while those employees are performing work on a
state contract.” 2000 Cal. Stats. ch. 872, §1.
AB 1889 forbids certain employers that receive state
funds—whether by reimbursement, grant, contract, use of
state property, or pursuant to a state program—from
using such funds to “assist, promote, or deter union orga-
nizing.” See Cal. Govt. Code Ann. §§16645.1 to 16645.7.
This prohibition encompasses “any attempt by an em-
ployer to influence the decision of its employees” regarding
“[w]hether to support or oppose a labor organization” and
“[w]hether to become a member of any labor organization.”
§16645(a). The statute specifies that the spending restric-
tion applies to “any expense, including legal and consult-
ing fees and salaries of supervisors and employees, in-
curred for . . . an activity to assist, promote, or deter union
organizing.” §16646(a).
Despite the neutral statement of policy quoted above,
AB 1889 expressly exempts “activit[ies] performed” or
“expense[s] incurred” in connection with certain undertak-
ings that promote unionization, including “[a]llowing a
labor organization or its representatives access to the
employer’s facilities or property,” and “[n]egotiating, enter-
ing into, or carrying out a voluntary recognition agree-
ment with a labor organization.” §§16647(b), (d).
To ensure compliance with the grant and program re-
strictions at issue in this case, AB 1889 establishes a
formidable enforcement scheme. Covered employers must
certify that no state funds will be used for prohibited
expenditures; the employer must also maintain and pro-
vide upon request “records sufficient to show that no state
funds were used for those expenditures.” §§16645.2(c),
Cite as: 554 U. S. ____ (2008) 3
Opinion of the Court
16645.7(b)–(c). If an employer commingles state and other
funds, the statute presumes that any expenditures to
assist, promote, or deter union organizing derive in part
from state funds on a pro rata basis. §16646(b). Violators
are liable to the State for the amount of funds used for
prohibited purposes plus a civil penalty equal to twice the
amount of those funds. §§16645.2(d), 16645.7(d). Sus-
pected violators may be sued by the state attorney general
or any private taxpayer, and prevailing plaintiffs are
“entitled to recover reasonable attorney’s fees and costs.”
§16645.8(d).
II
In April 2002, several organizations whose members do
business with the State of California (collectively, Cham-
ber of Commerce), brought this action against the Califor-
nia Department of Health Services and appropriate state
officials (collectively, the State) to enjoin enforcement of
AB 1889. Two labor unions (collectively, AFL–CIO) inter-
vened to defend the statute’s validity.
The District Court granted partial summary judgment
in favor of the Chamber of Commerce,1 holding that the
National Labor Relations Act (NLRA), 49 Stat. 449, as
amended, 29 U. S. C. §151 et seq. pre-empts Cal. Govt.
Code Ann. §16645.2 (concerning grants) and §16645.7
(concerning program funds) because those provisions
“regulat[e] employer speech about union organizing under
specified circumstances, even though Congress intended
free debate.” Chamber of Commerce v. Lockyer, 225
F. Supp. 2d 1199, 1205 (CD Cal. 2002). The Court of
Appeals for the Ninth Circuit, after twice affirming the
District Court’s judgment, granted rehearing en banc and
——————
1 The District Court held that the Chamber of Commerce lacked
standing to challenge several provisions of AB 1889 concerning state
contractors and public employers. See Chamber of Commerce v.
Lockyer, 225 F. Supp. 2d 1199, 1202–1203 (CD Cal. 2002).
4 CHAMBER OF COMMERCE OF UNITED STATES
v. BROWN
Opinion of the Court
reversed. See Chamber of Commerce v. Lockyer, 463 F. 3d
1076, 1082 (2006). While the en banc majority agreed that
California enacted §§16645.2 and 16645.7 in its capacity
as a regulator, and not as a mere proprietor or market
participant, see id., at 1082–1085, it concluded that Con-
gress did not intend to preclude States from imposing such
restrictions on the use of their own funds, see id., at 1085–
1096. We granted certiorari, 552 U. S. ___ (2007), and
now reverse.
Although the NLRA itself contains no express pre-
emption provision, we have held that Congress implicitly
mandated two types of pre-emption as necessary to im-
plement federal labor policy. The first, known as Garmon
pre-emption, see San Diego Building Trades Council v.
Garmon, 359 U. S. 236 (1959), “is intended to preclude
state interference with the National Labor Relations
Board’s interpretation and active enforcement of the ‘inte-
grated scheme of regulation’ established by the NLRA.”
Golden State Transit Corp. v. Los Angeles, 475 U. S. 608,
613 (1986) (Golden State I). To this end, Garmon pre-
emption forbids States to “regulate activity that the NLRA
protects, prohibits, or arguably protects or prohibits.”
Wisconsin Dept. of Industry v. Gould Inc., 475 U. S. 282,
286 (1986). The second, known as Machinists pre-
emption, forbids both the National Labor Relations Board
(NLRB) and States to regulate conduct that Congress
intended “be unregulated because left ‘to be controlled by
the free play of economic forces.’ ” Machinists v. Wisconsin
Employment Relations Comm’n, 427 U. S. 132, 140 (1976)
(quoting NLRB v. Nash-Finch Co., 404 U. S. 138, 144
(1971)). Machinists pre-emption is based on the premise
that “ ‘Congress struck a balance of protection, prohibition,
and laissez-faire in respect to union organization, collec-
tive bargaining, and labor disputes.’ ” 427 U. S., at 140,
n. 4 (quoting Cox, Labor Law Preemption Revisited, 85
Harv. L. Rev. 1337, 1352 (1972)).
Cite as: 554 U. S. ____ (2008) 5
Opinion of the Court
Today we hold that §§16645.2 and 16645.7 are pre-
empted under Machinists because they regulate within “a
zone protected and reserved for market freedom.” Build-
ing & Constr. Trades Council v. Associated Builders &
Contractors of Mass./R. I., Inc., 507 U. S. 218, 227 (1993)
(Boston Harbor). We do not reach the question whether
the provisions would also be pre-empted under Garmon.
III
As enacted in 1935, the NLRA, which was commonly
known as the Wagner Act, did not include any provision
that specifically addressed the intersection between em-
ployee organizational rights and employer speech rights.
See 49 Stat. 449. Rather, it was left to the NLRB, subject
to review in federal court, to reconcile these interests in its
construction of §§7 and 8. Section 7, now codified at 29
U. S. C. §157, provided that workers have the right to
organize, to bargain collectively, and to engage in con-
certed activity for their mutual aid and protection. Sec-
tion 8(1), now codified at 29 U. S. C. §158(a)(1), made it an
“unfair labor practice” for employers to “interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed by section 7.”
Among the frequently litigated issues under the Wagner
Act were charges that an employer’s attempts to persuade
employees not to join a union—or to join one favored by
the employer rather than a rival—amounted to a form of
coercion prohibited by §8. The NLRB took the position
that §8 demanded complete employer neutrality during
organizing campaigns, reasoning that any partisan em-
ployer speech about unions would interfere with the §7
rights of employees. See 1 J. Higgins, The Developing
Labor Law 94 (5th ed. 2006). In 1941, this Court curtailed
the NLRB’s aggressive interpretation, clarifying that
nothing in the NLRA prohibits an employer “from express-
ing its view on labor policies or problems” unless the em-
6 CHAMBER OF COMMERCE OF UNITED STATES
v. BROWN
Opinion of the Court
ployer’s speech “in connection with other circumstances
[amounts] to coercion within the meaning of the Act.”
NLRB v. Virginia Elec. & Power Co., 314 U. S. 469, 477
(1941). We subsequently characterized Virginia Electric
as recognizing the First Amendment right of employers to
engage in noncoercive speech about unionization. Thomas
v. Collins, 323 U. S. 516, 537–538 (1945). Notwithstand-
ing these decisions, the NLRB continued to regulate em-
ployer speech too restrictively in the eyes of Congress.
Concerned that the Wagner Act had pushed the labor
relations balance too far in favor of unions, Congress
passed the Labor Management Relations Act, 1947 (Taft-
Hartley Act). 61 Stat. 136. The Taft-Hartley Act amended
§§7 and 8 in several key respects. First, it emphasized
that employees “have the right to refrain from any or all”
§7 activities. 29 U. S. C. §157. Second, it added §8(b),
which prohibits unfair labor practices by unions. 29
U. S. C. §158(b). Third, it added §8(c), which protects
speech by both unions and employers from regulation
by the NLRB. 29 U. S. C. §158(c). Specifically, §8(c)
provides:
“The expressing of any views, argument, or opinion, or
the dissemination thereof, whether in written,
printed, graphic, or visual form, shall not constitute or
be evidence of an unfair labor practice under any of
the provisions of this subchapter, if such expression
contains no threat of reprisal or force or promise of
benefit.”
From one vantage, §8(c) “merely implements the First
Amendment,” NLRB v. Gissel Packing Co., 395 U. S. 575,
617 (1969), in that it responded to particular constitu-
tional rulings of the NLRB. See S. Rep. No. 105, 80th
Cong., 1st Sess., pt. 2, pp. 23–24 (1947). But its enact-
ment also manifested a “congressional intent to encourage
free debate on issues dividing labor and management.”
Cite as: 554 U. S. ____ (2008) 7
Opinion of the Court
Linn v. Plant Guard Workers, 383 U. S. 53, 62 (1966). It is
indicative of how important Congress deemed such “free
debate” that Congress amended the NLRA rather than
leaving to the courts the task of correcting the NLRB’s
decisions on a case-by-case basis. We have characterized
this policy judgment, which suffuses the NLRA as a whole,
as “favoring uninhibited, robust, and wide-open debate in
labor disputes,” stressing that “freewheeling use of the
written and spoken word . . . has been expressly fostered
by Congress and approved by the NLRB.” Letter Carriers
v. Austin, 418 U. S. 264, 272–273 (1974).
Congress’ express protection of free debate forcefully
buttresses the pre-emption analysis in this case. Under
Machinists, congressional intent to shield a zone of activ-
ity from regulation is usually found only “implicit[ly] in
the structure of the Act,” Livadas v. Bradshaw, 512 U. S.
107, 117, n. 11 (1994), drawing on the notion that “ ‘[w]hat
Congress left unregulated is as important as the regula-
tions that it imposed,’ ” Golden State Transit Corp. v. Los
Angeles, 493 U. S. 103, 110 (1989) (Golden State II) (quot-
ing New York Telephone Co. v. New York State Dept. of
Labor, 440 U. S. 519, 552 (1979) (Powell, J., dissenting)).
In the case of noncoercive speech, however, the protection
is both implicit and explicit. Sections 8(a) and 8(b) dem-
onstrate that when Congress has sought to put limits on
advocacy for or against union organization, it has ex-
pressly set forth the mechanisms for doing so. Moreover,
the amendment to §7 calls attention to the right of em-
ployees to refuse to join unions, which implies an underly-
ing right to receive information opposing unionization.
Finally, the addition of §8(c) expressly precludes regula-
tion of speech about unionization “so long as the communi-
cations do not contain a ‘threat of reprisal or force or
promise of benefit.’ ” Gissel Packing, 395 U. S., at 618.
The explicit direction from Congress to leave noncoer-
cive speech unregulated makes this case easier, in at least
8 CHAMBER OF COMMERCE OF UNITED STATES
v. BROWN
Opinion of the Court
one respect, than previous NLRA cases because it does not
require us “to decipher the presumed intent of Congress in
the face of that body’s steadfast silence.” Sears, Roebuck
& Co. v. Carpenters, 436 U. S. 180, 188, n. 12 (1978).
California’s policy judgment that partisan employer
speech necessarily “interfere[s] with an employee’s choice
about whether to join or to be represented by a labor
union,” 2000 Cal. Stats. ch. 872, §1, is the same policy
judgment that the NLRB advanced under the Wagner Act,
and that Congress renounced in the Taft-Hartley Act. To
the extent §§16645.2 and 16645.7 actually further the
express goal of AB 1889, the provisions are unequivocally
pre-empted.
IV
The Court of Appeals concluded that Machinists did not
pre-empt §§16645.2 and 16645.7 for three reasons: (1) the
spending restrictions apply only to the use of state funds,
(2) Congress did not leave the zone of activity free from all
regulation, and (3) California modeled AB 1889 on federal
statutes. We find none of these arguments persuasive.
Use of State Funds
In NLRA pre-emption cases, “ ‘judicial concern has
necessarily focused on the nature of the activities which
the States have sought to regulate, rather than on the
method of regulation adopted.’ ” Golden State I, 475 U. S.,
at 614, n. 5 (quoting Garmon, 359 U. S., at 243; brackets
omitted); see also Livadas, 512 U. S., at 119 (“Pre-emption
analysis . . . turns on the actual content of [the State’s]
policy and its real effect on federal rights”). California
plainly could not directly regulate noncoercive speech
about unionization by means of an express prohibition. It
is equally clear that California may not indirectly regulate
such conduct by imposing spending restrictions on the use
of state funds.
Cite as: 554 U. S. ____ (2008) 9
Opinion of the Court
In Gould, we held that Wisconsin’s policy of refusing to
purchase goods and services from three-time NLRA viola-
tors was pre-empted under Garmon because it imposed a
“supplemental sanction” that conflicted with the NLRA’s
“ ‘integrated scheme of regulation.’ ” 475 U. S., at 288–289.
Wisconsin protested that its debarment statute was “an
exercise of the State’s spending power rather than its
regulatory power,” but we dismissed this as “a distinction
without a difference.” Id., at 287. “[T]he point of the
statute [was] to deter labor law violations,” and “for all
practical purposes” the spending restriction was “tanta-
mount to regulation.” Id., at 287–289. Wisconsin’s choice
“to use its spending power rather than its police power
d[id] not significantly lessen the inherent potential for
conflict” between the state and federal schemes; hence the
statute was pre-empted. Id., at 289.
We distinguished Gould in Boston Harbor, holding that
the NLRA did not preclude a state agency supervising a
construction project from requiring that contractors abide
by a labor agreement. We explained that when a State
acts as a “market participant with no interest in setting
policy,” as opposed to a “regulator,” it does not offend the
pre-emption principles of the NLRA. 507 U. S., at 229. In
finding that the state agency had acted as a market par-
ticipant, we stressed that the challenged action “was
specifically tailored to one particular job,” and aimed “to
ensure an efficient project that would be completed as
quickly and effectively as possible at the lowest cost.” Id.,
at 232.
It is beyond dispute that California enacted AB 1889 in
its capacity as a regulator rather than a market partici-
pant. AB 1889 is neither “specifically tailored to one
particular job” nor a “legitimate response to state pro-
curement constraints or to local economic needs.” Gould,
475 U. S., at 291. As the statute’s preamble candidly
acknowledges, the legislative purpose is not the efficient
10 CHAMBER OF COMMERCE OF UNITED STATES
v. BROWN
Opinion of the Court
procurement of goods and services, but the furtherance of
a labor policy. See 2000 Cal. Stats. ch. 872, §1. Although
a State has a legitimate proprietary interest in ensuring
that state funds are spent in accordance with the purposes
for which they are appropriated, this is not the objective of
AB 1889. In contrast to a neutral affirmative requirement
that funds be spent solely for the purposes of the relevant
grant or program, AB 1889 imposes a targeted negative
restriction on employer speech about unionization. Fur-
thermore, the statute does not even apply this constraint
uniformly. Instead of forbidding the use of state funds for
all employer advocacy regarding unionization, AB 1889
permits use of state funds for select employer advocacy
activities that promote unions. Specifically, the statute
exempts expenses incurred in connection with, inter alia,
giving unions access to the workplace, and voluntarily
recognizing unions without a secret ballot election.
§§16647(b), (d).
The Court of Appeals held that although California did
not act as a market participant in enacting AB 1889, the
NLRA did not pre-empt the statute. It purported to dis-
tinguish Gould on the theory that AB 1889 does not make
employer neutrality a condition for receiving funds, but
instead restricts only the use of funds. According to the
Court of Appeals, this distinction matters because when a
State imposes a “use” restriction instead of a “receipt”
restriction, “an employer has and retains the freedom to
spend its own funds however it wishes.” 463 F. 3d, at
1088.
California’s reliance on a “use” restriction rather than a
“receipt” restriction is, at least in this case, no more conse-
quential than Wisconsin’s reliance on its spending power
rather than its police power in Gould. As explained below,
AB 1889 couples its “use” restriction with compliance costs
and litigation risks that are calculated to make union-
related advocacy prohibitively expensive for employers
Cite as: 554 U. S. ____ (2008) 11
Opinion of the Court
that receive state funds. By making it exceedingly diffi-
cult for employers to demonstrate that they have not used
state funds and by imposing punitive sanctions for non-
compliance, AB 1889 effectively reaches beyond “the use of
funds over which California maintains a sovereign inter-
est.” Brief for State Respondents 19.
Turning first to the compliance burdens, AB 1889 re-
quires recipients to “maintain records sufficient to show
that no state funds were used” for prohibited expendi-
tures, §§16645.2(c), 16645.7(c), and conclusively presumes
that any expenditure to assist, promote, or deter union
organizing made from “commingled” funds constitutes a
violation of the statute, §16646(b). Maintaining “suffi-
cient” records and ensuring segregation of funds is no
small feat, given that AB 1889 expansively defines its
prohibition to encompass “any expense” incurred in “any
attempt” by an employer to “influence the decision of its
employees.” §§16645(a), 16646(a). Prohibited expendi-
tures include not only discrete expenses such as legal and
consulting fees, but also an allocation of overhead, includ-
ing “salaries of supervisors and employees,” for any time
and resources spent on union-related advocacy. See
§16646(a). The statute affords no clearly defined safe
harbor, save for expenses incurred in connection with
activities that either favor unions or are required by fed-
eral or state law. See §16647.
The statute also imposes deterrent litigation risks.
Significantly, AB 1889 authorizes not only the California
Attorney General but also any private taxpayer—
including, of course, a union in a dispute with an em-
ployer—to bring a civil action against suspected violators
for “injunctive relief, damages, civil penalties, and other
appropriate equitable relief.” §16645.8. Violators are
liable to the State for three times the amount of state
funds deemed spent on union organizing. §§16645.2(d),
16645.7(d), 16645.8(a). Prevailing plaintiffs, and certain
12 CHAMBER OF COMMERCE OF UNITED STATES
v. BROWN
Opinion of the Court
prevailing taxpayer intervenors, are entitled to recover
attorney’s fees and costs, §16645.8(d), which may well
dwarf the treble damages award. Consequently, a trivial
violation of the statute could give rise to substantial liabil-
ity. Finally, even if an employer were confident that it
had satisfied the recordkeeping and segregation require-
ments, it would still bear the costs of defending itself
against unions in court, as well as the risk of a mistaken
adverse finding by the factfinder.
In light of these burdens, California’s reliance on a “use”
restriction rather than a “receipt” restriction “does not
significantly lessen the inherent potential for conflict”
between AB 1889 and the NLRA. Gould, 475 U. S., at
289. AB 1889’s enforcement mechanisms put considerable
pressure on an employer either to forgo his “free speech
right to communicate his views to his employees,” Gissel
Packing, 395 U. S., at 617, or else to refuse the receipt of
any state funds. In so doing, the statute impermissibly
“predicat[es] benefits on refraining from conduct protected
by federal labor law,” Livadas, 512 U. S., at 116, and chills
one side of “the robust debate which has been protected
under the NLRA,” Letter Carriers, 418 U. S., at 275.
Resisting this conclusion, the State and the AFL–CIO
contend that AB 1889 imposes less onerous recordkeeping
restrictions on governmental subsidies than do federal
restrictions that have been found not to violate the First
Amendment. See Rust v. Sullivan, 500 U. S. 173 (1991);
Regan v. Taxation With Representation of Wash., 461 U. S.
540 (1983). The question, however, is not whether AB
1889 violates the First Amendment, but whether it
“ ‘stands as an obstacle to the accomplishment and execu-
tion of the full purposes and objectives’ ” of the NLRA.
Livadas, 512 U. S., at 120 (quoting Brown v. Hotel Em-
ployees, 468 U. S. 491, 501 (1984)). Constitutional stan-
dards, while sometimes analogous, are not tailored to
address the object of labor pre-emption analysis: giving
Cite as: 554 U. S. ____ (2008) 13
Opinion of the Court
effect to Congress’ intent in enacting the Wagner and Taft-
Hartley Acts. See Livadas, 512 U. S., at 120 (distinguish-
ing standards applicable to the Equal Protection and Due
Process Clauses); Gould, 475 U. S., at 290 (Commerce
Clause); Linn, 383 U. S., at 67 (First Amendment). Al-
though a State may “choos[e] to fund a program dedicated
to advance certain permissible goals,” Rust, 400 U. S., at
194, it is not “permissible” for a State to use its spending
power to advance an interest that—even if legitimate “in
the absence of the NLRA,” Gould, 475 U. S., at 290—
frustrates the comprehensive federal scheme established
by that Act.
NLRB Regulation
We have characterized Machinists pre-emption as
“creat[ing] a zone free from all regulations, whether state
or federal.” Boston Harbor, 507 U. S., at 226. Stressing
that the NLRB has regulated employer speech that takes
place on the eve of union elections, the Court of Appeals
deemed Machinists inapplicable because “employer speech
in the context of organizing” is not a zone of activity that
Congress left free from “all regulation.” See 463 F. 3d, at
1089 (citing Peoria Plastic Co., 117 N. L. R. B. 545, 547–
548 (1957) (barring employer interviews with employees in
their homes immediately before an election); Peerless
Plywood Co., 107 N. L. R. B. 427, 429 (1953) (barring
employers and unions alike from making election speeches
on company time to massed assemblies of employees
within the 24-hour period before an election)).
The NLRB has policed a narrow zone of speech to en-
sure free and fair elections under the aegis of §9 of the
NLRA, 29 U. S. C. §159. Whatever the NLRB’s regulatory
authority within special settings such as imminent elec-
tions, however, Congress has clearly denied it the author-
ity to regulate the broader category of noncoercive speech
encompassed by AB 1889. It is equally obvious that the
14 CHAMBER OF COMMERCE OF UNITED STATES
v. BROWN
Opinion of the Court
NLRA deprives California of this authority, since “ ‘[t]he
States have no more authority than the Board to upset the
balance that Congress has struck between labor and man-
agement.’ ” Metropolitan Life Ins. Co. v. Massachusetts,
471 U. S. 724, 751 (1985).
Federal Statutes
Finally, the Court of Appeals reasoned that Congress
could not have intended to pre-empt AB 1889 because
Congress itself has imposed similar restrictions. See 463
F. 3d, at 1090–1091. Specifically, three federal statutes
include provisions that forbid the use of particular grant
and program funds “to assist, promote, or deter union
organizing.”2 We are not persuaded that these few iso-
lated restrictions, plucked from the multitude of federal
spending programs, were either intended to alter or did in
fact alter the “ ‘wider contours of federal labor policy.’ ”
Metropolitan Life, 471 U. S., at 753.
A federal statute will contract the pre-emptive scope of
the NLRA if it demonstrates that “Congress has decided to
tolerate a substantial measure of diversity” in the particu-
lar regulatory sphere. New York Telephone, 440 U. S., at
546 (plurality opinion). In New York Telephone, an em-
ployer challenged a state unemployment system that
provided benefits to employees absent from work during
lengthy strikes. The employer argued that the state sys-
tem conflicted with the federal labor policy “of allowing the
free play of economic forces to operate during the bargain-
——————
2 See 29 U. S. C. §2931(b)(7) (“Each recipient of funds under [the
Workforce Investment Act] shall provide to the Secretary assurances
that none of such funds will be used to assist, promote, or deter union
organizing”); 42 U. S. C. §9839(e) (“Funds appropriated to carry out [the
Head Start Programs Act] shall not be used to assist, promote, or deter
union organizing”); §12634(b)(1) (“Assistance provided under [the
National Community Service Act] shall not be used by program par-
ticipants and program staff to . . . assist, promote, or deter union
organizing”).
Cite as: 554 U. S. ____ (2008) 15
Opinion of the Court
ing process.” Id., at 531. We upheld the statute on the
basis that the legislative histories of the NLRA and Social
Security Act, which were enacted within six weeks of each
other, confirmed that “Congress intended that the States
be free to authorize, or to prohibit, such payments.” Id., at
544; see also id., at 547 (Brennan, J., concurring in result);
id., at 549 (Blackmun, J., concurring in judgment). In-
deed, the tension between the Social Security Act and the
NLRA suggested that the case could “be viewed as pre-
senting a potential conflict between two federal statutes
. . . rather than between federal and state regulatory
statutes.” Id., at 539–540, n. 32.
The three federal statutes relied on by the Court of
Appeals neither conflict with the NLRA nor otherwise
establish that Congress “decided to tolerate a substantial
measure of diversity” in the regulation of employer speech.
Unlike the States, Congress has the authority to create
tailored exceptions to otherwise applicable federal policies,
and (also unlike the States) it can do so in a manner that
preserves national uniformity without opening the door to
a 50-state patchwork of inconsistent labor policies. Con-
sequently, the mere fact that Congress has imposed tar-
geted federal restrictions on union-related advocacy in
certain limited contexts does not invite the States to over-
ride federal labor policy in other settings.
Had Congress enacted a federal version of AB 1889 that
applied analogous spending restrictions to all federal
grants or expenditures, the pre-emption question would be
closer. Cf. Metropolitan Life, 471 U. S., at 755 (citing
federal minimum labor standards as evidence that Con-
gress did not intend to pre-empt state minimum labor
standards). But none of the cited statutes is Government-
wide in scope, none contains comparable remedial provi-
sions, and none contains express pro-union exemptions.
16 CHAMBER OF COMMERCE OF UNITED STATES
v. BROWN
Opinion of the Court
* * *
The Court of Appeals’ judgment reversing the summary
judgment entered for the Chamber of Commerce is re-
versed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Cite as: 554 U. S. ____ (2008) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–939
_________________
CHAMBER OF COMMERCE OF THE UNITED STATES
OF AMERICA, ET AL., PETITIONERS v. EDMUND G.
BROWN, JR., ATTORNEY GENERAL OF
CALIFORNIA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 19, 2008]
JUSTICE BREYER, with whom JUSTICE GINSBURG joins,
dissenting.
California’s spending statute sets forth a state “policy”
not to “subsidize efforts by an employer to assist, promote,
or deter union organizing.” 2000 Cal. Stats. ch. 872, §1.
The operative sections of the law prohibit several classes
of employers who receive state funds from using those
funds to “assist, promote, or deter union organizing.” Cal.
Govt. Code Ann. §§16645–16649 (West Supp. 2008). And
various compliance provisions then require maintenance
of “records sufficient to show that no state funds were
used” for prohibited expenditures, deter the use of com-
mingled funds for prohibited expenditures, and impose
serious penalties upon violators. §§16645.2(c), 16645.7(b)–
(c).
The Court finds that the National Labor Relations Act
(NLRA) pre-empts these provisions. It does so, for it
believes the provisions “regulate” activity that Congress
has intended to “be unregulated because left to be con-
trolled by the free play of economic forces.” Machinists v.
Wisconsin Employment Relations Comm’n, 427 U. S. 132,
140 (1976) (internal quotation marks omitted and empha-
sis added). The Chamber of Commerce adds that the
2 CHAMBER OF COMMERCE OF UNITED STATES
v. BROWN
BREYER, J., dissenting
NLRA pre-empts these provisions because they “regulate
activity that the NLRA protects, prohibits, or arguably
protects or prohibits.” Wisconsin Dept. of Industry v.
Gould Inc., 475 U. S. 282, 286 (1986) (summarizing the
pre-emption principle set forth in San Diego Building
Trades Council v. Garmon, 359 U. S. 236 (1959); emphasis
added). Thus the question before us is whether Califor-
nia’s spending limitations amount to regulation that the
NLRA pre-empts. In my view, they do not.
I
The operative sections of the California statute provide
that employers who wish to “assist, promote or deter union
organizing,” cannot use state money when they do so. The
majority finds these provisions pre-empted because in its
view the sections regulate employer speech in a manner
that weakens, or undercuts, a congressional policy, embod-
ied in NLRA §8(c), “ ‘to encourage free debate on issues
dividing labor and management.’ ” Ante, at 6–7 (citing
Linn v. Plant Guard Workers, 383 U. S. 53, 62 (1966)).
Although I agree the congressional policy favors “free
debate,” I do not believe the operative provisions of the
California statute amount to impermissible regulation
that interferes with that policy as Congress intended it.
First, the only relevant Supreme Court case that found a
State’s labor-related spending limitations to be pre-
empted differs radically from the case before us. In that
case, Wisconsin Dept. of Industry v. Gould Inc., 475 U. S.
282, the Court considered a Wisconsin statute that prohib-
ited the State from doing business with firms that repeat-
edly violated the NLRA. The Court said that the statute’s
“manifest purpose and inevitable effect” was “to enforce”
the NLRA’s requirements, which “role Congress reserved
exclusively for the [National Labor Relations Board].” Id.,
at 291. In a word, the Wisconsin statute sought “to compel
conformity with the NLRA.” Building & Constr. Trades
Cite as: 554 U. S. ____ (2008) 3
BREYER, J., dissenting
Council v. Associated Builders & Contractors of Mass./R.
I., Inc., 507 U. S. 218, 228 (1993) (emphasis added).
California’s statute differs from the Wisconsin statute
because it does not seek to compel labor-related activity.
Nor does it seek to forbid labor-related activity. It permits
all employers who receive state funds to “assist, promote,
or deter union organizing.” It simply says to those em-
ployers, do not do so on our dime. I concede that a federal
law that forces States to pay for labor-related speech from
public funds would encourage more of that speech. But no
one can claim that the NLRA is such a law. And without
such a law, a State’s refusal to pay for labor-related speech
does not impermissibly discourage that activity. To refuse
to pay for an activity (as here) is not the same as to compel
others to engage in that activity (as in Gould).
Second, California’s operative language does not weaken
or undercut Congress’ policy of “encourag[ing] free debate
on issues dividing labor and management.” Linn, supra, at
62. For one thing, employers remain free to spend their
own money to “assist, promote, or deter” unionization.
More importantly, I cannot conclude that California’s
statute would weaken or undercut any such congressional
policy because Congress itself has enacted three statutes
that, using identical language, do precisely the same
thing. Congress has forbidden recipients of Head Start
funds from using the funds to “assist, promote, or deter
union organizing.” 42 U. S. C. §9839(e). It has forbidden
recipients of Workforce Investment Act of 1998 funds from
using the funds to “assist, promote, or deter union organiz-
ing.” 29 U. S. C. §2931(b)(7). And it has forbidden recipi-
ents of National Community Service Act of 1990 funds
from using the funds to “assist, promote, or deter union
organizing.” 42 U. S. C. §12634(b)(1). Could Congress
have thought that the NLRA would prevent the States
from enacting the very same kinds of laws that Congress
itself has enacted? Far more likely, Congress thought that
4 CHAMBER OF COMMERCE OF UNITED STATES
v. BROWN
BREYER, J., dissenting
directing government funds away from labor-related activ-
ity was consistent, not inconsistent, with, the policy of
“encourag[ing] free debate” embedded in its labor statutes.
Finally, the law normally gives legislatures broad au-
thority to decide how to spend the People’s money. A
legislature, after all, generally has the right not to fund
activities that it would prefer not to fund—even where the
activities are otherwise protected. See, e.g., Regan v.
Taxation With Representation of Wash., 461 U. S. 540, 549
(1983) (“We have held in several contexts that a legisla-
ture’s decision not to subsidize the exercise of a fundamen-
tal right does not infringe the right”). This Court has
made the same point in the context of labor law. See Lyng
v. Automobile Workers, 485 U. S. 360, 368 (1988) (holding
that the Federal Government’s refusal to provide food
stamp benefits to striking workers was justified because
“[s]trikers and their union would be much better off if food
stamps were available,” but the “strikers’ right of associa-
tion does not require the Government to furnish funds to
maximize the exercise of that right”).
As far as I can tell, States that do wish to pay for em-
ployer speech are generally free to do so. They might
make clear, for example, through grant-related rules and
regulations that a grant recipient can use the funds to pay
salaries and overhead, which salaries and overhead might
include expenditures related to management’s role in
labor organizing contests. If so, why should States that do
not wish to pay be deprived of a similar freedom? Why
should they be conscripted into paying?
I can find nothing in the majority’s arguments that
convincingly answers these questions. The majority says
that California must be acting as an impermissible regula-
tor because it is not acting as a “market participant” (a
role we all agree would permit it broad leeway to act like
private firms in respect to labor matters). Ante, at 9. But
the regulator/market-participant distinction suggests a
Cite as: 554 U. S. ____ (2008) 5
BREYER, J., dissenting
false dichotomy. The converse of “market participant” is
not necessarily “regulator.” A State may appropriate
funds without either participating in or regulating the
labor market. And the NLRA pre-empts a State’s actions,
when taken as an “appropriator,” only if those actions
amount to impermissible regulation. I have explained
why I believe that California’s actions do not amount to
impermissible regulation here.
The majority also complains that the statute “imposes a
targeted negative restriction,” one applicable only to labor.
Ante, at 10. I do not find this a fatal objection, because the
congressional statutes just discussed (which I believe are
consistent with the NLRA) do exactly the same. In any
event, if, say, a State can tell employers not to use state
funds to pay for a large category of expenses (say, over-
head), why can it not tell employers the same about a
smaller category of expenses (say, only those overhead
expenses related to taking sides in a labor contest). And
where would the line then be drawn? Would the statute
pass master if California had said, do not use our money
to pay for interior decorating, catered lunches, or labor
relations?
The majority further objects to the fact that the statute
does not “apply” the constraint “uniformly,” because it
permits use of state funds for “select employer advocacy
activities that promote unions.” Ante, at 10. That last
phrase presumably refers to an exception in the California
statute that permits employers to spend state funds to
negotiate a voluntary recognition of a union. But this
exception underscores California’s basic purpose—
maintaining a position of spending neutrality on contested
labor matters. Where labor and management agree on
unionization, there is no conflict.
II
I turn now to the statute’s compliance provisions. They
6 CHAMBER OF COMMERCE OF UNITED STATES
v. BROWN
BREYER, J., dissenting
require grant recipients to maintain “records sufficient to
show that no state funds were used” for prohibited expen-
ditures; they deter the use of commingled funds for prohib-
ited expenditures; and they impose serious penalties upon
violators. Cal. Govt. Code Ann. §§16645.2(c), 16645.7(b)–
(c). The majority seems to rest its conclusions in part
upon its belief that these requirements are too strict, that,
under the guise of neutral enforcement, they discourage
the use of nonstate money to engage in free debate on
labor/management issues. Ante, at 10–11.
I agree with the majority that, should the compliance
provisions, as a practical matter, unreasonably discourage
expenditure of nonstate funds, the NLRA may well pre-
empt California’s statute. But I cannot say on the basis of
the record before us that the statute will have that effect.
The language of the statute is clear. The statute re-
quires recipients of state money to “maintain records
sufficient to show that no state funds were used” for pro-
hibited expenditures. §§16645.2, 16645.7(c). And the
class of prohibited expenditures is quite broad: It covers
“any expense” incurred in “any attempt” by an employer to
“influence the decision of its employees,” including “legal
and consulting fees and salaries of supervisors and em-
ployees” incurred during research for or the preparation,
planning, coordination, or execution of activities to “assist,
promote, or deter” union organizing. §16646(a) (emphasis
added). And where an employer mingles state funds and
non-state funds, (say, to pay a particular employee who
spends part of her time dealing with unionization matters)
the employer must determine “on a pro rata basis,” the
portion of the labor-related expenditure paid for by state
funds, and maintain sufficient supporting documentation.
§16646(b). Any violation of these provisions is then sub-
ject to strict penalties, including treble damages and
attorney’s fees and costs. §16645.8.
What is less clear is the degree to which these provi-
Cite as: 554 U. S. ____ (2008) 7
BREYER, J., dissenting
sions actually will deter a recipient of state funds from
using non-state funds to engage in unionization matters.
And no lower court has ruled on this matter. In the Dis-
trict Court, the Chamber of Commerce moved for sum-
mary judgment arguing that the statute, by placing re-
strictions on state funds, was pre-empted by Machinists
and Garmon and also arguing that the compliance provi-
sions are so burdensome that they would chill even private
expenditures. California opposed the motion. And Cali-
fornia submitted expert evidence designed to show that its
“accounting and recordkeeping requirements . . . are simi-
lar to requirements imposed in other contexts,” are “sig-
nificantly less burdensome than the detailed requirements
for federal grant recipients,” and allow “flexibility in estab-
lishing proper accounting procedures and controls.” App.
282–283.
The District Court granted the Chamber of Commerce’s
motion for summary judgment in part, finding that the
operative sections of the statute were pre-empted for the
reasons I have discussed in Part I, namely, that the opera-
tive provisions interfered with the NLRA’s policy of en-
couraging “free debate.” 225 F. Supp. 2d 1199, 1204 (CD
Cal. 2002). But in doing so, it did not address the Cham-
ber of Commerce’s argument that the California statute’s
compliance provisions affected non-state-funded speech to
the point that the NLRA pre-empted the statute. Neither
did the Court of Appeals address the question whether the
compliance provisions themselves constitute sufficient
grounds for finding the statute pre-empted.
I do not believe that we can, and I would not, decide this
question until the lower courts have had an opportunity to
consider and rule upon the compliance-related questions.
Accordingly, I would vote to vacate the judgment of the
Ninth Circuit and remand for further proceedings on this
issue.
I respectfully dissent.