Progressive Democrats v. Rob Bonta

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PROGRESSIVE DEMOCRATS FOR No. 22-15323
SOCIAL JUSTICE, a Democratic
Club Chartered by the Santa Clara D.C. No. 4:21-cv-
County Democratic Party; KRISTA 03875-HSG
HENNEMAN; CARLIE WARE,
Plaintiffs-Appellants, OPINION
v.
ROB BONTA, in his official capacity
as Attorney General for the State of
California,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Argued and Submitted March 29, 2023
San Francisco, California
Filed July 19, 2023
Before: Ronald M. Gould, Marsha S. Berzon, and Sandra
S. Ikuta, Circuit Judges.
2 PROGRESSIVE DEMOCRATS V. BONTA
Opinion by Judge Berzon;
Concurrence by Judge Ikuta
SUMMARY *
Civil Rights/First Amendment
The panel reversed the district court’s summary
judgment for the State of California in an action alleging that
California Government Code § 3205 violates the First
Amendment and Equal Protection Clause by prohibiting
local government employees from soliciting political
contributions from their coworkers while state employees
are not similarly barred.
The panel analyzed the State’s decision to restrict the
expression of certain government employees—but not other
government employees—under the First Amendment. The
panel held that Section 3205 does not survive constitutional
scrutiny under either the “closely drawn” standard from
McCutcheon v. FEC, 572 U.S. 185 (2014), or the balancing
test articulated in Pickering v. Board of Education, 391 U.S.
563 (1968), and United States v. National Treasury
Employees Union, 513 U.S. 454 (1995).
The panel held that the speculative benefits that Section
3205 may provide the Government were not sufficient to
justify the burden on plaintiffs’ expression. The State
therefore did not meet its burden of justifying the differential
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PROGRESSIVE DEMOCRATS V. BONTA 3
ban under the First Amendment. None of the materials
before the State at the time of Section 3205’s enactment
supported the statute’s distinction between local and state
workers; the State offered no affirmative evidence that intra-
governmental solicitations have coerced government
employees into financially supporting political candidates or
caused government employees to perform their duties in a
partisan manner; Section 3205 did not account for agency
size which undercut the State’s argument that the statute
was properly tailored to address the government’s interest;
and Section 3205 was underinclusive as a means of limiting
the actuality and appearance of partisan behavior by public
employees. Because the panel concluded that Section 3205
did not survive First Amendment scrutiny, it did not reach
plaintiffs’ Equal Protection challenge.
Concurring in the result, Judge Ikuta stated that Section
3205 violates the First Amendment as a restriction on
political speech that is not justified by California’s asserted
governmental interests. But because California did not enact
the law in its capacity as an employer, but rather in its
capacity as a sovereign, the panel should have analyzed the
statute under ordinary First Amendment principles and
applied strict scrutiny to determine that California had not
demonstrated either a compelling interest or narrowly
tailored means.
COUNSEL
Charles Gerstein (argued), Gerstein Harrow LLP,
Washington, D.C.; Jason S. Harrow, Equal Citizens, Los
Angeles, California; for Plaintiffs-Appellants.
4 PROGRESSIVE DEMOCRATS V. BONTA
Keith L. Wurster (argued), Deputy Attorney General; Mark
Beckington, Supervising Deputy Attorney General; Thomas
S. Patterson, Senior Assistant Attorney General; Rob Bonta,
Attorney General of California; Office of the California
Attorney General; Sacramento, California; for Defendant-
Appellee
OPINION
BERZON, Circuit Judge:
Under California law, local government employees may
not solicit political contributions from their coworkers, but
state government employees may. A political organization
and two of the organization’s officers challenged the statute
responsible for this distinction, California Government Code
§ 3205, as violative of the First and Fourteenth
Amendments. Because the statute’s discrimination against
local employees is not justified under any arguably
applicable standard, we hold that Section 3205 is
unconstitutional and reverse the district court.
I.
A.
Section 3205 generally prohibits local government
employees in California from soliciting political
contributions from their coworkers. It provides in relevant
part:
(a) An officer or employee of a local agency
shall not, directly or indirectly, solicit a
political contribution from an officer or
PROGRESSIVE DEMOCRATS V. BONTA 5
employee of that agency, or from a person on
an employment list of that agency, with
knowledge that the person from whom the
contribution is solicited is an officer or
employee of that agency. . . .
(c) This section shall not prohibit an officer
or employee of a local agency . . . from
requesting political contributions from
officers or employees of that agency if the
solicitation is part of a solicitation made to a
significant segment of the public which may
include officers or employees of that local
agency.
(d) Violation of this section is punishable as
a misdemeanor. The district attorney shall
have all authority to prosecute under this
section.
State government employees are not similarly barred
from soliciting contributions from their colleagues. There
are limitations on their political fundraising: they may not
solicit during work hours, and they may not use state
resources, their titles, or their positions when fundraising.
See Cal. Gov’t Code § 19990(a)–(b). But there is no state
law or regulation that categorically bars all forms of political
solicitations among state workers.
This distinction between local and state employees’
solicitations rights did not always exist. In 1913, the
California State Legislature enacted legislation banning state
employees from soliciting contributions from state civil
service employees. See 1913 Cal. Stat. 1035, 1046–47. Five
decades later, the Legislature enacted a law prohibiting
6 PROGRESSIVE DEMOCRATS V. BONTA
political solicitation among local government employees.
See 1963 Cal Stat. 4078, 4079. So between 1963 and 1976,
both state and local workers were forbidden from soliciting
political contributions from their coworkers. Compare 1913
Cal. Stat. 1035, 1046–47, and 1963 Cal Stat. 4078, 4079,
with 1976 Cal. Stat. 6352, 6353.
This era of parity did not last. Shortly after the
Legislature enacted its solicitation ban for local employees,
the California Supreme Court decided several cases limiting
the government’s ability to restrict the political activity of
public workers. See, e.g., Fort v. Civ. Serv. Comm’n., 61 Cal.
2d 331 (1964); Bagley v. Wash. Twp. Hosp. Dist., 65 Cal. 2d
499 (1966). Then, in 1976, State Assemblyman John
Vasconcellos introduced Assembly Bill 4351, a bill to
loosen certain restrictions on the political speech of
government employees. See A.B. 4351, 1975–76 Leg., Reg.
Sess. (Cal. 1976) (as introduced).
As initially drafted, AB 4351 repealed the State’s bans
on intra-governmental solicitations for state and local
employees, treating both sets of workers identically. Id. But,
in the end, AB 4351 was amended to repeal the intra-
governmental solicitation ban for state employees only and
to reenact the prohibition for local employees, in a
renumbered Section 3205. See A.B. 4351, 1975–76 Leg.,
Reg. Sess. (Cal. 1976) (as amended in Senate, Aug. 6, 1976).
Marty Morgenstern, Governor Jerry Brown’s Director of the
Office of Employee Relations, could “find no reason for this
unique treatment of State employees, vis-a-vis local agency
employees” and “recommend[ed] against signing this bill, at
least until we could determine the rationale for this
distinction.” Memorandum from Marty Morgenstern,
Director, Office of Emp. Rels., to Jerry Brown, Governor,
PROGRESSIVE DEMOCRATS V. BONTA 7
State of Cal. (Sept. 22, 1976). Governor Brown nonetheless
signed the bill into law. See 1976 Cal. Stat. 6352, 6353. 1
B.
Plaintiffs Progressive Democrats for Social Justice, a
political organization, and Krista Henneman and Carlie
Ware, two officers of that organization (collectively
“PDSJ”), sued to challenge the constitutionality of Section
3205. Henneman and Ware were deputy public defenders for
Santa Clara County who supported Sajid Khan, a fellow
county deputy public defender, in his campaign to become
district attorney. They wanted to solicit contributions for
Khan from other county employees, particularly other public
defenders, outside of work hours and without using county
resources or titles. 2 But Henneman and Ware determined, in
accordance with a memorandum from Santa Clara County
counsel, that individually soliciting donations from their
coworkers would violate Section 3205. They therefore did
not engage in the solicitations and instead filed this lawsuit
challenging Section 3205 as unconstitutional. The complaint
alleged that California’s law violated the First Amendment
and Equal Protection Clause by banning political
solicitations among local employees but not among state
employees.
After filing suit, PDSJ moved for a temporary restraining
order enjoining the enforcement of Section 3205, which the
district court denied. The parties then cross-moved for
1
In 1995, the Legislature designated violations of Section 3205 as
misdemeanors and authorized district attorneys to prosecute such
violations. See 1995 Cal. Stat. 5109.
2
At the times of the complaint and motions for summary judgment,
neither Henneman nor Ware were employed as supervisors by Santa
Clara County.
8 PROGRESSIVE DEMOCRATS V. BONTA
summary judgment on undisputed facts, including
declarations from Henneman and Ware stating their desire
to solicit their colleagues outside work hours and without
using government resources, and the district court granted
the State’s motion for summary judgment.
On PDSJ’s First Amendment claim, the court
determined that the balancing test set forth in Pickering v.
Board of Education, 391 U.S. 563 (1968), provided the
relevant framework. Weighing the “local employees’ First
Amendment rights against the government’s justification for
treating them differently from members of the public,” the
court found “adequate justification” for Section 3205’s
restriction of local employees’ solicitation rights. With
respect to PDSJ’s Equal Protection claim, the court declined
to resolve the parties’ dispute over the proper level of
scrutiny. Rather, Section 3205 withstood PDSJ’s challenge
even under a “heightened standard,” the court decided,
because state and local employees were not “similarly
situated” and, even if they were, the statute was closely
drawn to support the important state interest of reducing the
existence and appearance of corruption and workplace
coercion. This appeal followed. 3
3
Although the campaign for which PDSJ sought to solicit contributions
has ended, no party has argued that this appeal is moot. The Supreme
Court has often concluded that litigation challenging election regulations
is not moot even when the election at issue is complete, because such
cases can “fit comfortably within the established exception to mootness
for disputes capable of repetition, yet evading review.” FEC v. Wis. Right
to Life, Inc., 551 U.S. 449, 462 (2007); see also Davis v. FEC, 554 U.S.
724, 735–36 (2008). Here, Henneman and Ware have declared that they
would solicit campaign contributions from other county employees for
future elections were they not prohibited from doing so by California
law. So the case is not moot.
PROGRESSIVE DEMOCRATS V. BONTA 9
II.
“Discrimination in the First Amendment context has
sometimes been characterized as a violation of the First
Amendment itself and has sometimes been characterized as
a violation of the Equal Protection Clause.” SEIU v. Fair
Pol. Pracs. Comm’n, 955 F.2d 1312, 1319 n.11 (9th Cir.
1992) (citations omitted). Citizens United v. FEC, however,
explained that “the First Amendment . . . [p]rohibit[s] . . .
restrictions distinguishing among different speakers,
allowing speech by some but not others.” 558 U.S. 310, 340
(2010). So, as the Second and Third Circuits did in similar
cases, we analyze the State’s decision to restrict the
expression of certain government employees—but not other
government employees—under the First Amendment. See
Lodge No. 5 of Fraternal Ord. of Police ex rel. McNesby v.
City of Philadelphia, 763 F.3d 358, 381 (3d Cir. 2014)
(“Because the City does not enforce the Charter ban against
the balance of its employees, it must explain why the ban has
special significance against the police.”); Latino Officers
Ass’n v. City of New York, 196 F.3d 458, 467 (2d Cir. 1999)
(“Having allowed [at least 25] organizations to use the
NYPD uniform in [marches] over many decades, the NYPD
cannot now deny plaintiffs the same privilege without
demonstrating that their use of the uniform is both
distinguishable from that of the various authorized
organizations and ‘so threatening to the efficiency of the
[NYPD] as to render the [restriction] a reasonable response
to the threat.’” (citation omitted)).
The parties disagree on the appropriate level of First
Amendment scrutiny for Section 3205.
PDSJ argues that the “closely drawn” standard from
McCutcheon v. FEC, 572 U.S. 185 (2014), applies to this
10 PROGRESSIVE DEMOCRATS V. BONTA
case. Under that standard, a government restriction on First
Amendment rights—in McCutcheon, a campaign
contribution limitation—can be sustained if “the State
demonstrates a sufficiently important interest and employs
means closely drawn to avoid unnecessary abridgement of
associational freedoms.” Id. at 197 (plurality opinion)
(quoting Buckley v. Valeo, 424 U.S. 1, 25 (1976) (per
curiam)). Although McCutcheon did not concern
government employees and PDSJ does not cite cases in
which distinctions between government employees were at
issue, PDSJ contends that the McCutcheon standard is
appropriate because Section 3205 discriminates among
speakers in their exercise of First Amendment rights. 4
The State, in contrast, maintains that the test articulated
in Pickering governs, as the district court concluded.
Applicable to limitations on government employee speech,
Pickering asks “whether the relevant government entity had
an adequate justification for treating the employee
differently from any other member of the general public.”
Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). As the
Supreme Court explained in United States v. National
Treasury Employees Union (NTEU), 513 U.S. 454 (1995),
“the Government’s burden is greater with respect to [a]
statutory restriction on expression than with respect to an
isolated disciplinary action,” id. at 468: “[t]he Government
must show that the interests of both potential audiences and
a vast group of present and future employees in a broad range
of present and future expression are outweighed by that
4
PDSJ has not argued that Section 3205 should be analyzed under strict
scrutiny. To the contrary, at oral argument, PDSJ’s counsel reiterated
that McCutcheon’s close scrutiny standard should apply and explained
that close scrutiny and strict scrutiny were not the same standard.
PROGRESSIVE DEMOCRATS V. BONTA 11
expression’s ‘necessary impact on the actual operation’ of
the Government,” id. (quoting Pickering, 391 U.S. at 571),
and “must demonstrate that the recited harms are real, not
merely conjectural, and that the regulation will in fact
alleviate these harms in a direct and material way,” id. at 475
(quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664
(1994) (plurality opinion)).
We need not resolve the parties’ disagreement
concerning the type of scrutiny applicable here, as Section
3205 does not survive constitutional scrutiny under either
standard (or the more stringent strict scrutiny standard
advocated for by the concurrence). In so doing, we follow
the Supreme Court’s lead. McCutcheon declined to revisit
the Court’s different standards for reviewing limits on
political contributions and expenditures—rejecting Justice
Thomas’s concurrence calling for the application of strict
scrutiny to contribution restrictions—because both strict
scrutiny and close scrutiny required the Court to “assess the
fit between the stated governmental objective and the means
selected to achieve that objective” and because the
contribution limit at issue failed under either standard. 572
U.S. at 199. Here, both the McCutcheon and
Pickering/NTEU tests require us to: (1) evaluate the State’s
asserted interests in enacting Section 3205 and (2) decide
whether the statute is appropriately tailored to achieve those
interests. See id. at 197; NTEU, 513 U.S. at 470, 472–73,
477; see also Lodge No. 5, 763 F.3d at 375. And because the
parties agree that Pickering/NTEU sets forth a more
deferential standard than McCutcheon, Section 3205
necessarily fails under McCutcheon if it fails under
Pickering/NTEU. See Wagner v. FEC, 793 F.3d 1, 7 (D.C.
12 PROGRESSIVE DEMOCRATS V. BONTA
Cir. 2015). 5 For the reasons stated below, we hold that “[t]he
speculative benefits [Section 3205] may provide the
Government are not sufficient to justify this crudely crafted
burden on [PDSJ’s] freedom to engage in expressive
activities.” NTEU, 513 U.S. at 477. 6
5
Neither the Supreme Court nor the Ninth Circuit has determined the
appropriate level of scrutiny for a solicitation ban targeted at government
employees. In Williams-Yulee v. Florida Bar, 575 U.S. 433 (2015), a
plurality of the Supreme Court applied strict scrutiny to a state regulation
banning all judicial candidates, whether currently employed as judges or
not, from soliciting campaign contributions from anyone, not only from
government employees. See id. at 437, 444. The section of the primary
opinion in Williams-Yulee discussing the applicable level of scrutiny was
joined by four of the Justices. See id. at 442–44; id. at 457–58 (Ginsburg,
J., concurring in part and concurring in the judgment). Wolfson v.
Concannon, 811 F.3d 1176, 1180 (9th Cir. 2016) (en banc), relied upon
by the concurrence, see Concurrence at 31, adopted a strict scrutiny
standard to review a state’s solicitation restriction in “the context of
judicial elections,” see Concurrence at 32 n.5. Again, the solicitation ban
in Wolfson applied to all judicial candidates, whether currently employed
as judges or not, and solicitations from anyone, not just from government
employees. See 811 F.3d at 1187 (Berzon, J., concurring).
6
The concurrence contends that Section 3205 should be analyzed as a
general governmental regulation on citizens, as opposed to government
employees, because “California concedes that the state government has
no authority over local agency employees.” See Concurrence at 29–30.
We are skeptical of this proposition. Local governments are creations of
the state government under the California Constitution, see Cal. Const.
art. XI, and California has plenary authority to regulate local
governments on matters of statewide concern, see, e.g., Cal. Fed. Savs.
& Loan Ass’n v. City of Los Angeles, 54 Cal. 3d 1, 15–18 (1991). And
the Legislature has explicitly stated, in the same chapter that contains
Section 3205, that the “political activities of public employees are of
significant statewide concern,” overriding “all provisions on this subject
in . . . any city, county, or city and county charter.” Cal. Gov’t Code
PROGRESSIVE DEMOCRATS V. BONTA 13
III.
Section 3205 precludes over a million local government
employees from soliciting political contributions from co-
employees. “Soliciting financial support is . . .
characteristically intertwined with informative and perhaps
persuasive speech seeking support for particular causes.”
Village of Schaumburg v. Citizens for a Better Env’t, 444
U.S. 620, 632 (1980). Although local government
employees may engage in other forms of political speech
under Section 3205—such as solicitations directed at the
public at large—Henneman and Ware declare, without
contradiction, that individualized solicitations are “much
more effective” than general solicitations. By banning
targeted political solicitations among local government
workers, California restricts a core form of political speech
for “a vast group of present and future employees.” NTEU,
513 U.S. at 468.
The State asserts that two primary interests justify the
burdens imposed by Section 3205: (1) assuring that
government employees are free from workplace pressure to
support certain political causes and candidates and (2)
assuring that government employees perform their duties on
behalf of the public rather than for partisan gain (i.e.,
§ 3201. In other words, local employees operate, at least to some degree,
under the State’s authority. Although California argues that the State as
a practical matter exercises stronger oversight over state employees than
local governments do over local employees, nowhere does it assert that
it has no authority to regulate the employment policies of local
government agencies. Section 3205, which California defends as a valid
exercise of state power, is a regulation on the political activities of local
government employees, and the parties agree that California could have
validly enacted an intragovernmental solicitation ban for both state and
local employees.
14 PROGRESSIVE DEMOCRATS V. BONTA
avoiding the practice of “political justice,” U.S. Civ. Serv.
Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 565
(1973)). The Supreme Court has recognized the state’s
legitimate interests in limiting workplace political coercion
and the practice of political justice. See id. at 564–67. And
PDSJ recognizes that these interests would likely support a
ban against political solicitations among all government
employees.
The critical question, then, is whether Section 3205 is
properly tailored to support the State’s interests, given its
exclusive application to local government employees. In
other words, California must demonstrate that Section 3205,
despite its differential treatment of state and local
employees, is a reasonable response to the State’s posited
and actual harms. See NTEU, 513 U.S. at 475–76. After a
review of the record before us, we cannot say that the State
has met its burden of justifying the differential ban under the
First Amendment.
1. None of the materials before the State at the time of
Section 3205’s enactment support the statute’s distinction
between local and state workers. In defense of the statute,
the State points to several letters sent to the Legislature and
Governor about Section 3205 and a committee report issued
over a decade before Section 3205’s enactment. But none of
those documents explain why state and local workers should
be treated differently with respect to intra-governmental
solicitations.
For instance, a letter from the Sacramento City Council
to the Legislature opposing AB 4351 concerned an entirely
PROGRESSIVE DEMOCRATS V. BONTA 15
different provision of the bill. 7 See Letter from Michael S.
Sands, Chairman of Council Comm. on Law & Legis.,
Sacramento City Council, to Ralph C. Dills, Chairman of S.
Gov’t Org. Comm., Cal. State Legis. (July 15, 1976). And
the Assembly’s committee report, in significant tension with
and notably predating Section 3205, discussed the need to
“improve the political freedom of local government
employees,” deeming the State’s limits on local workers’
speech “a definite problem.” See Assemb. of the State of Cal.
Elections and Reapportionment Interim Comm., An
Omnibus Report, 1963 Assemb., at 40 (1963) (emphasis
added).
The only clear pre-enactment acknowledgment of
Section 3205’s disparate treatment of local employees was
the warning from Governor Brown’s chief aide on
employment issues. Because Morgenstern could “find no
reason for [Section 3205’s] unique treatment of State
employees, vis-a-vis local agency employees,” he
recommended that the Governor not sign AB 4351, “at least
until we could determine the rationale for this distinction.”
Memorandum from Marty Morgenstern, Director, Office of
Emp. Rels., to Jerry Brown, Governor, State of Cal. (Sept.
22, 1976).
2. When considering First Amendment challenges, the
Supreme Court and this Court review evidence beyond the
information available to the legislature and executive at the
7
Sacramento withdrew its opposition to the bill “[b]ecause of
amendments worked out with the author” on the day before AB 4351
was amended to address this different provision. See Letter from Michael
S. Sands, Chairman of Council Comm. on Law & Legis., Sacramento
City Council, to Ralph C. Dills, Chairman of S. Gov’t Org. Comm., Cal.
State Legis. (Aug. 10, 1976); A.B. 4351, 1975–76 Leg., Reg. Sess. (Cal.
1976) (as amended in Senate, Aug. 11, 1976).
16 PROGRESSIVE DEMOCRATS V. BONTA
time of the statute’s enactment. See Turner Broad. Sys., Inc.
v. FCC, 520 U.S. 180, 196 (1997); Minority Television
Project, Inc. v. FCC, 736 F.3d 1192, 1198–99 (9th Cir.
2013) (en banc). The operation of California’s statutory
scheme over the decades demonstrates the primary problem
with Section 3205: the law curtails far more speech than
necessary to achieve the State’s aims.
Unlike local employees, state government employees
are allowed to solicit political contributions from their
coworkers, but only as long as the solicitations do not occur
during work hours or use state titles or resources. Despite
nearly thirty years under this regime, California does not
identify any discipline initiated in response to such
solicitations. Put another way, the State has offered no
affirmative evidence that intra-governmental solicitations—
constrained by the same conditions under which PDSJ seeks
to solicit contributions according to their declarations—have
coerced government employees into financially supporting
political candidates or caused government employees to
perform their duties in a partisan manner.
In NTEU, the Supreme Court cited an analogous lack of
evidence of known misconduct in the “vast rank and file of
federal employees” to strike down the federal government’s
blanket honoraria ban for public workers as violative of the
First Amendment. 513 U.S. at 472. “A ‘reasonable’ burden
on expression,” the Justices explained, “requires a
justification far stronger than mere speculation about serious
harms.” Id. at 475. The evidentiary gap here raises similarly
serious questions about the need for a flat solicitation
prohibition among any set of governmental employees in
California.
PROGRESSIVE DEMOCRATS V. BONTA 17
3. California’s defense of Section 3205 is further
undermined by the statute’s poor fit for the State’s asserted
interest in limiting workplace coercion. State and local
agencies vary considerably by size. For example, Santa
Clara County, a local government, employs approximately
22,000 people, while the San Joaquin River Conservancy, a
state agency, employs three. See About the County, County
of Santa Clara,
https://employeeservices.sccgov.org/sites/g/files/exjcpb531
/files/about-our-county.pdf [https://perma.cc/ZJ93-CJSS];
California State Controller, San Joaquin River Conservancy,
Government Compensation in California (July 26, 2022),
https://publicpay.ca.gov/Reports/State/StateEntity.aspx?ent
ityid=3831&year=2021 [https://perma.cc/38PM-WQ9T].
Agency size logically affects whether a colleague’s
solicitation might be understood as coercive: solicitations
among colleagues in a small agency, who must collaborate
on a regular basis, are likely to be perceived differently by
the targets of the solicitation from solicitations among
workers within a thousand-person agency, who may be
colleagues in name only and may never meaningfully
interact. Section 3205, however, does not account for agency
size at all; it instead distinguishes only between state and
local governments in its coverage. To wit, under Section
3205:
A law clerk in a state judge’s chambers may
solicit political contributions for a judicial
candidate from one of her two or three fellow
clerks at a Friday happy hour and sit next to
the other clerk the following week;
meanwhile, a Los Angeles County janitor
may not solicit contributions for a
Presidential candidate from a Los Angeles
18 PROGRESSIVE DEMOCRATS V. BONTA
County prosecutor at a barbecue that they
both happen to attend with family, even
though both are among approximately
100,000 county employees, and even though
they may go to work more than 85 miles (and
an hours-long drive in LA traffic) from each
other. 8
The First Amendment does not tolerate such a “crudely
crafted burden” on local employees’ expressive rights.
NTEU, 513 U.S. at 477. If the State seeks to protect
government employees from undue political pressure with a
solicitation ban, it cannot enact a statute that illogically
distinguishes between types of government employees but
fails to account for a crucial factor in determining whether
the prohibited solicitations will actually result in undue
pressure. Section 3205’s indiscriminate application to local
agencies of all sizes—and disregard for the potential for
coercion in state agencies regardless of size—undercuts the
State’s argument that the statute is properly tailored to
address the government’s interests.
4. Section 3205 fares no better with respect to
California’s other stated goal: limiting the actuality and
appearance that government employees are working on
behalf of political parties. In Letter Carriers, the case the
State cites in support of the importance of this interest, the
Supreme Court explained that avoiding the practice and
appearance of “political justice” was one of the “obviously
important interests” served by the Hatch Act. 413 U.S. at564–65; see Pub. L. No. 89-554, 80 Stat. 378, 525 (1966).
8
This hypothetical was posed by PDSJ in its briefs before the district
court and the Ninth Circuit.
PROGRESSIVE DEMOCRATS V. BONTA 19
But the Court in that case considered a markedly different
provision than the one before us today.
Letter Carriers upheld the Hatch Act’s complete
prohibition on partisan activities by federal employees. 413
U.S. at 550–51. That wide-ranging ban on political activities
matched the federal government’s interest in “the impartial
execution of the laws” “without bias or favoritism for or
against any political party.” Id. at 565. The same cannot be
said of Section 3205. California’s statute is radically
underinclusive as a means to limit the actuality and
appearance of partisan behavior by public employees. See
Fla. Star v. B.J.F., 491 U.S. 524, 540–41 (1989). Even
setting aside the statute’s omission of state employees, local
workers may still engage in a wide range of political
activities under the law, including donating to partisan
groups, leading political organizations, soliciting the public
on behalf of their favored candidates and causes, and running
for office themselves. Given the statute’s narrow focus, the
State cannot plausibly contend that Section 3205
meaningfully limits the actuality and public appearance of
local employees behaving as partisan actors, when the law
bans only the decidedly internal act of solicitations among
coworkers.
5. The Supreme Court’s caselaw on the problems
underinclusive statutes present under the First Amendment
underscores Section 3205’s infirmities. Williams-Yulee v.
Florida Bar, 575 U.S. 433 (2015), reviewed a Florida canon
that banned judges and judicial candidates from personally
soliciting campaign contributions. “Underinclusivity creates
a First Amendment concern,” the Court explained, “when
the State regulates one aspect of a problem while declining
to regulate a different aspect of the problem that affects its
stated interest in a comparable way.” Id. at 451 (emphasis
20 PROGRESSIVE DEMOCRATS V. BONTA
omitted). “[A] law’s underinclusivity raises a red flag.” Id.
at 449. Florida’s regulation survived First Amendment
scrutiny, the Court held, in part, because it was not
underinclusive: “[t]he solicitation ban aim[ed] squarely at
the conduct most likely to undermine public confidence in
the integrity of the judiciary: personal requests for money by
judges and judicial candidates.” Id. at 449.
Section 3205 falls on the wrong side of Williams-Yulee’s
underinclusivity line. California insists that solicitations
among coworkers undermine a government’s ability to
function. But instead of prohibiting that speech entirely, as
Florida did with judicial solicitations, the State bans
solicitations among local employees and not state
employees. Moreover, as we have explained, Section 3205
cannot be reasonably described as aiming squarely at the
speech most likely to undermine the State’s interests,
because it neither accounts for agency size in addressing
political coercion nor bans much of the political activity that
could raise the appearance and practice of political justice.
See supra at 17–19. In sum, Section 3205 implicates the
underinclusiveness problem that Florida’s canon in
Williams-Yulee did not and also lacks the tailoring Florida’s
canon had.
* * *
These combined anomalies fatally undercut California’s
justifications for Section 3205. The State’s proffered goals
are undoubtedly important. But “the lack of fit between the
[State’s] purported interests and [Section 3205] renders the
restriction an unacceptable response to the posited harms.”
Lodge No. 5, 763 F.3d at 379.
PROGRESSIVE DEMOCRATS V. BONTA 21
IV.
The State offers two primary counterarguments. First,
California contends that state and local employees can be
treated differently because state employees are subject to
“stronger and more uniform oversight.” Second, California
insists that Supreme Court precedent forecloses PDSJ’s
challenge to Section 3205. Neither argument flies.
A.
California argues that state employees are differently
situated from local employees because the state civil service
system and the California Department of Human Resources
(“CalHR”) govern state but not local government
employees. The State does not explain how the supposed
benefits flowing from these structures justify Section 3205’s
burdens on local employees’ First Amendment rights.
1. “Uniformity” cannot be the answer. California
contends that CalHR imposes uniformity on state employees
by approving employment regulations for state agencies and
serving as a central entity to protect state employees and
their rights; this uniformity, according to California, would
not exist for local employees absent Section 3205. But the
State never explains why uniformity in solicitation
regulation among local government entities is a worthwhile
state interest, especially when Section 3205 itself creates
disuniformity by treating state and local employees
differently. Local governments have different workplace
policies on a wide range of matters and for any number of
valid reasons. See, e.g., Cal. Gov’t Code § 45000 (enabling
cities to adopt their own personnel systems); Cal. Gov’t
Code § 31102 (enabling counties to adopt their own
personnel systems). In fact, state law already explicitly
allows local governments, in a provision also enacted by AB
22 PROGRESSIVE DEMOCRATS V. BONTA
4351, to devise their own policies on permissible political
activities during work hours and at the workplace. See Cal.
Gov’t Code § 3207.
Further, even if we were to grant the importance of
California’s interest in uniformity, there is a far better
alternative to Section 3205 that would at least equally well
achieve the State’s aims. See Lodge No. 5, 763 F.3d at 383–
84. As PDSJ seeks, the State could allow all public
employees in California to solicit contributions from their
coworkers under the same restrictions currently imposed on
state employees. In doing so, the State would foster more
uniformity in the rules applicable to government employees,
by harmonizing solicitation regulations between state and
local government workers as well as for all local government
employees. At the same time, such legislation would restrict
less speech by enabling local workers to engage in non-
coercive solicitations, while simultaneously banning
solicitations among government employees under
circumstances that are most likely to be coercive.
2. The State’s representation that state employees are
subject to stronger oversight than local employees is no more
compelling. California contends that CalHR and the state
civil service system offer better protections from retaliation
for state employees than local employees receive from their
local governments. Yet, the State offers no evidence to
justify its vague assertions.
It is impossible to judge the relevance of CalHR and the
state merit system when the State does not detail any relevant
“protections” supposedly offered by them. The mere
existence of CalHR says nothing about the quality of
oversight over state employment conditions as compared to
local employment conditions. It is true but irrelevant that a
PROGRESSIVE DEMOCRATS V. BONTA 23
state employment agency exists for nearly 400,000 state
employees while certain much smaller local governments
only have a single employee to handle HR questions. And
the record contains no information about the “protections”
offered by the state civil service system as compared to the
“protections” offered by local civil service systems—or even
whether state employees are more likely than local
employees to be governed by a merit system. 9
Even if we were to somehow credit California’s
amorphous claims about the protections offered to state
employees, the State does not explain why these protections
affect whether local governments can enforce a substantive
rule permitting local employees to solicit their coworkers
under certain restrictions. California currently requires local
governments, apparently without incident, to supervise a
regime in which solicitations among local government
colleagues are completely banned. If there were a structural
reason local governments were incapable of enforcing more
discrete bans, one would think that reason would hamper
enforcement under the current, more stringent regime as
well. The State’s speculation about the capabilities of local
government agencies combined with a record devoid of
9
California’s passing references to the protections offered by state
unions are unpersuasive for similar reasons. Local as well as state
governmental employees are entitled under California law to join unions
and engage in collective bargaining. See, e.g., Meyers-Milias-Brown
Act, Cal. Gov’t Code §§ 3500–3511; Educational Employment
Relations Act, Cal. Gov’t Code §§ 3540–3549.3; Ralph C. Dills Act, Cal.
Gov’t Code §§ 3512–3524; Higher Education Employer-Employee
Relations Act, Cal. Gov’t Code §§ 3560–3599. No record information
suggests that state employees are covered by collective bargaining
agreements at significantly higher rates than local employees or have
stronger workplace protections as compared to local employees because
of their unions.
24 PROGRESSIVE DEMOCRATS V. BONTA
specific evidence about the benefits relevant to inter-
employee campaigning offered by CalHR and the state civil
service system cannot sustain a flat solicitation ban among
all local government employees.
B.
None of the cases cited by the State justify the regulatory
regime created by Section 3205.
United Public Workers of America v. Mitchell, 330 U.S.
75 (1947), addresses a different question from the one
presented in this case. In Mitchell, the petitioners argued that
the Hatch Act covered more employees than necessary to
achieve the federal government’s anti-corruption goals. See
id. at 100–02. Here, PDSJ contends that Section 3205
arbitrarily singles out a specific group of public employees
for regulation instead of covering all state and local
employees. The Supreme Court’s rejection of the
petitioners’ claim in Mitchell, which challenged the Hatch
Act for being overly broad, does not inform our analysis of
PDSJ’s claim in this dispute, which challenges California’s
statute for being overly narrow. See Williams-Yulee, 575
U.S. at 451.
Nor does a footnote from Broadrick v. Oklahoma, 413
U.S. 601 (1973), undermine PDSJ’s First Amendment
challenge. In upholding Oklahoma’s decision to ban civil
servants—but not other state employees—from engaging in
a range of political activities, the Supreme Court in
Broadrick explained that “the legislature must have some
leeway in determining which of its employment positions
require restrictions on partisan political activities and which
may be left unregulated.” Id. at 607 n.5. This statement was
made in the context of Oklahoma’s scheme for designating
some state employees but not others as covered by a merit-
PROGRESSIVE DEMOCRATS V. BONTA 25
based, nonpartisan civil service system. See id. at 602–07 &
n.5. Such systems are designed to combat the actuality and
appearance of political patronage in the more ministerial
governmental jobs, while permitting other governmental
employees to be appointed by, and beholden to, elected
officials, reflecting the need for political control at some
levels of governmental decision-making. See id. at 606;
Elrod v. Burns, 427 U.S. 347, 364–66 (1976) (plurality
opinion). Prohibiting civil service employees in particular
from engaging in political activity directly fosters those
goals.
Section 3205 operates in a decidedly different manner.
Rather than banning all civil-service-covered employees
from engaging in political activity, California’s law
prohibits all local employees, but not any state employees,
from individually soliciting political contributions from their
coworkers. In other words, Section 3205 matches neither the
means nor ends of Oklahoma’s statute: it does not track
Broadrick’s distinction between civil-service-covered
governmental employees and other governmental employees
and does not use a comparably broad set of restrictions to
achieve the State’s interests. Broadrick’s footnote cannot
save Section 3205 from constitutional scrutiny.
The remaining case cited by California, Ex parte Curtis,
106 U.S. 371 (1882), affirmed the government’s power to
ban solicitations among federal employees. It did not
consider, and petitioners did not challenge, the government’s
decision to exempt presidential appointees from the ban.
V.
We do not doubt the State’s interests in combatting
corruption and worker coercion. But we cannot, applying
First Amendment precepts, countenance California’s
26 PROGRESSIVE DEMOCRATS V. BONTA
“second-class treatment” of local employees, absent any
plausible reason for the distinction. See Lodge No. 5, 763
F.3d at 381. For the foregoing reasons, we reverse the district
court’s grant of summary judgment to the State and remand
for further proceedings consistent with this opinion. 10
REVERSED and REMANDED.
IKUTA, Circuit Judge, concurring in the result
Section 3205 of the California Government Code
violates the First Amendment as a restriction on political
speech that is not justified by California’s asserted
governmental interests. But because California did not enact
the law in its capacity as an employer, but rather in its
capacity as a sovereign, we should analyze the statute under
ordinary First Amendment principles, not under a
Pickering/NTEU balancing test. Maj. Op. at 11–12.
Therefore, I concur only in the result.
I
Krista Henneman and Carlie Ware are deputy public
defenders who work for Santa Clara County. Although they
wanted to solicit donations from other County employees to
support the candidacy of Sajid Khan to become district
attorney, they did not do so because Section 3205 of the
California Government Code forbids employees of a local
agency from soliciting a political contribution from an
10
Because we conclude that Section 3205 does not survive First
Amendment scrutiny, we do not reach PDSJ’s Equal Protection
challenge.
PROGRESSIVE DEMOCRATS V. BONTA 27
officer or employee of that agency. This suit challenging the
constitutionality of Section 3205 followed.
There is no doubt that a state statute forbidding
individuals from soliciting donations, a form of protected
speech, impinges on the First Amendment rights of those
individuals. See Barr v. Am. Ass’n of Pol. Consultants, Inc.,
140 S. Ct. 2335, 2346–47 (2020); Riley v. Nat’l Fed’n of the
Blind of N.C., Inc., 487 U.S. 781, 789 (1988); Wolfson v.
Concannon, 811 F.3d 1176, 1180–81 (9th Cir. 2016). The
more difficult issue is to identify the framework mandated
by the Supreme Court to determine whether the government
speech restriction violates the First Amendment.
Instead of determining the appropriate degree of
constitutional scrutiny with which to review Section 3205,
Maj. Op. 11, the majority analyzes the law under the test set
forth in Pickering v. Board of Education, 391 U.S. 563(1968), and United States v. National Treasury Employees
Union (NTEU), 513 U.S. 454 (1995), explaining that
“because the parties agree that Pickering/NTEU sets forth a
more deferential standard,” “Section 3205 necessarily fails
under” a higher level of scrutiny “if it fails under
Pickering/NTEU.” 1 Maj. Op. 11.
1
Relying on McCutcheon (which declined to determine if the challenged
restriction on political contributions was subject to strict scrutiny or
closely drawn scrutiny review because the contribution limit at issue
failed under the less rigorous closely drawn scrutiny standard, see
McCutcheon v. FEC, 572 U.S. 185, 199 (2014)), the majority declines to
“resolve the parties’ disagreement concerning the type of scrutiny
applicable here” because Section 3205 fails under any level of scrutiny.
Maj. Op. 11. The McCutcheon approach does not apply in this context,
however, because while both strict scrutiny and closely drawn scrutiny
28 PROGRESSIVE DEMOCRATS V. BONTA
This is incorrect. Pickering and NTEU considered the
balance between the government’s needs as an employer and
its employees’ First Amendment rights. See Pickering, 391
U.S. at 568; see also NTEU, 513 U.S. at 468. Pickering
recognized that the government’s “interests as an employer
in regulating the speech of its employees . . . differ
significantly from those it possesses in connection with
regulation of the speech of the citizenry in general.” 391
U.S. at 568. As an employer, the government is “charged by
law with doing particular tasks” and “hire[s] employees to
help do those tasks as effectively and efficiently as possible.”
Engquist v. Or. Dep’t of Agr., 553 U.S. 591, 598 (2008)
(citation omitted). “Government employers, like private
employers, need a significant degree of control over their
employees’ words and actions; without it, there would be
little chance for the efficient provision of public services.”
Garcetti v. Ceballos, 547 U.S. 410, 418–19 (2006); see also
Rankin v. McPherson, 483 U.S. 378, 384 (1987) (“[P]ublic
employers are employers, concerned with the efficient
function of their operations.”).
In light of the nature of the employer-employee
relationship, the Supreme Court held that challenges to
restrictions on public employees’ speech are evaluated by
balancing their First Amendment rights “as a citizen, in
commenting upon matters of public concern” against the
government’s interest “as an employer, in promoting the
efficiency of the public services it performs through its
employees.” Pickering, 391 U.S. at 568; see also NTEU,
may apply to government restrictions on speech generally, see 572 U.S.
at 199, the Pickering/NTEU test applies only to government restrictions
on speech of its employees, and thus is not a relevant standard for
determining if Section 3205 violates the First Amendment. See infra pp.
28–30.
PROGRESSIVE DEMOCRATS V. BONTA 29
513 U.S. at 468. This balancing test reflects “the common-
sense realization that government offices could not function
if every employment decision became a constitutional
matter.” Engquist, 553 U.S. at 599 (cleaned up); see also
Rankin, 483 U.S. at 384 (“[R]eview of every personnel
decision made by a public employer could, in the long run,
hamper the performance of public functions.”). It also
ensures that “constitutional review of government
employment decisions” (where “the government act[s] ‘as
proprietor to manage [its] internal operation’”) “rest[s] on
different principles than review of restraints imposed by the
government as sovereign” (where the government acts “as
lawmaker” “to regulate or license”). Engquist, 553 U.S. at598–99 (cleaned up) (citation omitted).
In light of that underlying rationale, it follows that the
Pickering/NTEU balancing test is the appropriate analytic
framework only where the government restricts speech in
order to advance its interest “in promoting the efficiency of
the public services it performs through” the employee
subject to the restriction. Pickering, 391 U.S. at 568; see
also Connick v. Myers, 461 U.S. 138, 150–51 (1983)
(recognizing that the Pickering balancing test applies where
the government is “promot[ing] efficiency and integrity in
the discharge of official duties” (citation omitted)). Because
the government may have such an interest where the person
is a contractor or vendor, the test applies to speech
restrictions imposed on those individuals as well. See Bd. of
Cnty. Comm’rs, Wabaunsee Cnty. v. Umbehr, 518 U.S. 668,
673 (1996) (government contractors); Alpha Energy Savers,
Inc. v. Hansen, 381 F.3d 917, 923 (9th Cir. 2004)
(government vendors).
But we have never applied the test to a government’s
imposition of speech restrictions on individuals who provide
30 PROGRESSIVE DEMOCRATS V. BONTA
no services and perform no duties for the government at
issue. 2 That is the situation here. California concedes that
the state government has no authority over local agency
employees. Indeed, California’s theory of the case is that
Section 3205 is justified because California has no power or
jurisdiction to oversee local agency employees and their
solicitation of political contributions from co-workers.
California repeatedly states that “[t]here is no . . . oversight,
absent Section 3205, for local agencies,” and that
“California’s 3,500 local agencies are each responsible for
managing their own personnel,” thus recognizing that the
state government has no authority in this area. Put
differently, California concedes that it did not enact and does
not enforce Section 3205 in order to “promot[e] the
efficiency of the public services it performs through” local
agencies. Pickering, 391 U.S. at 568. Therefore, the
Pickering/NTEU balancing test is simply inapplicable here.
It should not be used to analyze the constitutionality of
Section 3205. 3
2
A state government may have an employer-employee interest where a
person officially employed by a local government functionally serves as
an employee of the state government. See, e.g., Weiner v. San Diego
County, 210 F.3d 1025, 1030 (9th Cir. 2000) (holding that, for purposes
of a § 1983 action, “a county district attorney acts as a [California] state
official when deciding whether to prosecute”). But Section 3205 is not
limited to local agency employees who have that sort of relationship to
the state.
3
The majority says it is “skeptical” that Section 3205 should be analyzed
as a governmental regulation on citizens generally because the state has
plenary authority to regulate local governments on matters of statewide
concern. See Maj. Op. 12–13 n.6. But this observation sheds no light
on the question before us: whether the state acts as an employer with
respect to individuals who work for local governments. The state’s
PROGRESSIVE DEMOCRATS V. BONTA 31
II
Because California enacted and enforces Section 3205 in
its capacity as sovereign, not employer, I would analyze the
law as a restriction on protected political speech under
ordinary First Amendment principles.
A restriction on political solicitations is unconstitutional
unless it “is narrowly tailored to serve a compelling
[governmental] interest.” Wolfson v. Concannon, 811 F.3d
1176, 1180 (9th Cir. 2016) (en banc) (citation omitted). 4 A
authority to enact legislation affecting local governments’ operations
does not mean that the state has an employment relationship with the
local governments’ employees. Moreover, state law limits the degree to
which California can affect local governments’ employees. Under the
California Constitution, the state lacks authority to regulate matters
falling within “municipal affairs” of charter cities, Cal. Fed. Sav. & Loan
Ass’n. v. City of Los Angeles, 54 Cal. 3d 1, 12–13, 24 (1991), which
includes employment-related matters such as “the wage levels of
contract workers constructing locally funded public works,” State Bldg.
& Constr. Trades Council of Cal. v. City of Vista, 54 Cal. 4th 547, 556
(2012). And the California Constitution also provides that each county
has plenary authority over employment matters. See CAL. CONST. art.
XI, § 1(b) (providing that each county “shall provide for the number,
compensation, tenure, and appointment of [its] employees”).
4
The majority asserts that Wolfson’s standard of scrutiny applies only to
restrictions on political solicitations by judicial candidates and does not
extend to restrictions on solicitations by non-candidates or candidates for
other offices. Maj. Op. 12 n.5. This argument is incorrect. Wolfson
endorsed the plurality view in Williams-Yulee v. Florida Bar that
“speech about public issues and the qualifications of candidates for
elected office commands the highest level of First Amendment
protection,” 811 F.3d at 1180 (quoting Williams-Yulee v. Fla. Bar, 575
U.S. 433, 443 (2015)), and agreed “that strict scrutiny is appropriate
here,” without limiting this principle to candidates for judicial office, id.That the plaintiffs in Williams-Yulee and Wolfson were campaigning for
32 PROGRESSIVE DEMOCRATS V. BONTA
speech restriction “is narrowly tailored if it targets and
eliminates no more than the exact source of the ‘evil’ it seeks
to remedy.” Frisby v. Schultz, 487 U.S. 474, 485 (1988)
(citation omitted). Thus, where a court “find[s] a substantial
mismatch between the Government’s stated objective and
the means selected to achieve it,” the challenged speech
restriction fails strict scrutiny review. McCutcheon, 572
U.S. at 199.
California has not demonstrated either a compelling
interest or narrowly tailored means. First, the Supreme
Court has repeatedly held that the “one permissible ground
for restricting political speech” is the governmental interest
in preventing quid pro quo corruption or its appearance. 5
FEC v. Cruz, 142 S. Ct. 1638, 1652 (2022); see also
McCutcheon, 572 U.S. at 192 (“Any regulation [on political
speech] must . . . target what we have called ‘quid pro quo’
corruption or its appearance [to be constitutional].”). Here,
California claims its interests in enacting Section 3205 are to
prevent corruption, cronyism, and workplace coercion.
Under Supreme Court precedent, the goals of preventing
cronyism and workplace coercion cannot serve as a
judicial office was relevant to determine whether the state had a
compelling interest in prohibiting solicitation, not to determine the
standard of review. See Williams-Yulee, 575 U.S. at 445–46; Wolfson,
811 F.3d at 1182.
5
In Williams-Yulee, the Court recognized a compelling governmental
interest in protecting the integrity of the judiciary and maintaining the
public’s confidence in an impartial judiciary. 575 U.S. at 445. But
Williams-Yulee was careful to clarify that “a State has compelling
interests in regulating judicial elections that extend beyond its interests
in regulating political elections, because judges are not politicians.” Id.
at 455. Thus, Williams-Yulee does not apply to restrictions on political
speech outside the context of judicial elections.
PROGRESSIVE DEMOCRATS V. BONTA 33
compelling government interest to restrict political speech.
See Cruz, 142 S. Ct. at 1652. Even California’s interest in
preventing corruption is not a compelling interest, because it
is not aimed at preventing quid pro quo corruption or its
appearance. See McCutcheon, 572 U.S. at 192 (defining
quid pro quo corruption); see also id. at 209 (“The line
between quid pro quo corruption and general influence may
seem vague at times, but the distinction must be respected in
order to safeguard basic First Amendment rights.”).
Second, Section 3205 is not narrowly tailored to these
asserted interests, as the majority explains. Maj. Op. 14–20.
For one, California presents no evidence that state
employees’ solicitation of political donations from their co-
workers has resulted in corruption, cronyism, or workplace
coercion. Thus, California’s fear, absent any factual support,
is the type of “mere conjecture” that the Supreme Court has
held is not “adequate to carry a First Amendment burden.”
Id. at 210 (citation omitted).
Section 3205 is also underinclusive. An underinclusive
speech restriction, meaning one that “abridg[es] too little
speech,” Williams-Yulee v. Fla. Bar., 575 U.S. 433, 448
(2015) (emphasis omitted), “creates a First Amendment
concern when the State regulates one aspect of a problem
while declining to regulate a different aspect of the problem
that affects its stated interest in a comparable way,” id. at
451 (emphasis omitted). Section 3205 is underinclusive
because it restricts the political speech of local agency
employees by prohibiting them from soliciting political
donations from their co-workers, but does not prohibit the
same political speech of state employees. And that
underinclusion raises a First Amendment concern because
solicitations among state employees equally raise the risk of
actual and apparent corruption, cronyism, and workplace
34 PROGRESSIVE DEMOCRATS V. BONTA
coercion. California’s assertion that state employees are
situated differently than local employees because they are
overseen by the California Department of Human Resources
is unpersuasive, given that California presents no evidence
that its human resources department has historically
prevented corruption, cronyism, or workplace coercion due
to employees’ political speech, or that local agencies have
failed to prevent those harms. Again, this type of conjecture
is insufficient to sustain a restriction on First Amendment
protected speech. See McCutcheon, 572 U.S. at 210.
Because I agree that Section 3205 fails under strict
scrutiny, thereby constituting an unconstitutional restriction
on speech, I concur in the result.