the grounds that the district court made several erroneous legal conclusions principally amongst these is the finding of a likelihood of success beginning with the claim of viewpoint discrimination under the first amendment it is our contention and we believe that the case law supports this that payroll deductions are not speech we point principally to this court's decision in the bailey case from two thousand and thirteen where this court strongly set stated that the supreme court's decision in the service  makes it clear that payroll deductions are not speech and so we need go no further in this argument but what it would happen if the state got rid of payroll deductions for everybody including could even a corporation its own employees that that be ok i believe that would be ok or in the principles if they're not speech then they can be regulated or prohibited outright so this court again in bailey described the act apparently duction as a ministerial inscribe that the ministry of process in which that the duction occurs is not a form of any kind so really this course bayley decision should have been the end of the discussion as far as the first amendment viewpoint discrimination claim goes but even further than that in the prize a case from one thousand nine hundred eight this court again unions but that would only go toward the state's interest in regulation it doesn't have any effect on whether or not the activity itself constitutes speech more pointedly the a police have failed to indicate any legal authority indicating that payro is some indication in the justice ginsburg's concurring opinion that she thought it was significant that there was that dealt with public unions in that private ones however i would have to point back to this court's decision and bailey circuit has twice indicated that the activity in question is not speech i think that you're get the same answer to one of their points which is you know unions and corporations are not on the equal footing here when you take away this option because most union members are employees of the union whereas corporations the employees they're all employees they're not at some other locations so i guess their idea is that this does have the effect of disadvantaging the opportunities for political speech for one versus the other that would follow up if we get past the idea of whether or not the payroll deductions are speech then we move into the idea of are is there some preference or distinction being made between the corporate speech and the union speech and i think that's one of the fundamental errors appellate argument unions and corporations are not being treated differently on the face of the statute what we're dealing with here is not so much who receives the money it's who is giving it the whole purpose of these s s s is to operate as a conduit for corporate or labor union speech and how they operate how their contributions are to be channeled when we're talking about the payroll deductions unions are those are the corporations operate the payroll deductions for their payroll they are allowed to make contributions to their own separate segregated fund or separate segregated funds to which they are affiliated that start there that's part of there's a list of a class that's under section fifty five of the of the michigan statute in question so the corporation can give to itself the problem is when we get into the idea of corporations gathering these payroll deductions for some others as s f or labor union or some not other nonaffiliated nonprofit or some other corporation like general motors couldn't give to the apple computer corporation s s f any more than they could give to the union similarly the union for itself could operate a payroll deduction for its employees they can also operate payroll  oddity ducks from the memberships bank accounts they are not restricted from the how they collect funds from their own membership they can also collect funds from their own payroll for anyone operations don't have members unions have members the unions have members but they also have employees so i'm granting you that the treatment of employees is equal it's just the reality that unions have members corporations don't have members corp well i would say that the corporation does have shareholders and officers who are part of this  a class and who can also contribute to the corporation's s s f so in the sense of disadvantage what we're really talking about is convenience and what the what the we're problem that we follow up from that is that the convenience comes at a cost and that cost is illegal corporate contributions the access to the corporation's payroll to its employees is a thing of value this constitutes an inclined contribution they're given they're being given something that other people and more specifically other separate segregated funds do not have and are prohibited from having and it's important to note i think that even prior to the amendment in this case to section fifty four three that eliminated the the  the the the work around the loophole for allowing reimbursement for separate for payroll deductions it was already illegal for corporations to provide in kind contributions or contributions of any kind to labor s what we had here was a work around that said well we know you've had these separate second these apparently directions for a while will allow you to continue making these payroll deductions so long as you reimburse for the cost and this was an interpretive statement by the department of state and that worked well enough for a time but then the problem came when the mission supreme court had an opportunity to review that and what the mission supreme court said in the context of public unions in the n b a case was that first of all the statute makes no provision whatsoever for reimbursement so that there's actually no statutory basis for this to be a permissible activity and on top of that the court found that the reimbursement did not hear the violation and in so doing the court specifically observe that payment back of the value of the reimbursement was part of the punishment for violating the act in that way so it made no sense to court in the michigan supreme court to allow reimbursements to cure this violation if you rely on pies  for stuff on the first amendment it's does seem more helpful than not for you and that argument doesn't seem so helpful for you on the impairment of contract claim however if this were lead on the issue of the impairment of contracts a problem with the challenged specifically in our district court pleadings and in the appeal in this case that in order for this to be at least arguably valid contract for the reimbursement of payroll deduction costs you have to at least there has to be something in the contract that would provide for that the contract provisions pages that we've been given we've been given i think about three of them three or four pages from the contract and it provides for apparently duction but there is no reference in the contract whatsoever why are we allowed to assume that it's going to comply with the law and that assume that they're going to comply with the law it's in that first of all your honor i think you're actually correct that it is an assumption but once we now we have come into the field to say we're challenging that we're not sure that it is and we have specifically they haven't pointed to a contractual provision that says we with the law with that that's just a fine thing to ask of people well i think it's not so funny because again you go off into contracts say have a paragraph seventy seven we will comply with the law well i would say that if there's i mean i think that's rote macro thing you put in dollar contracts when we're dealing with something like this you're in or the idea is well this is a narrow exception that's been carved up at the department of state and interpret statement that allows this activity to be legal i would expect that to appear in the contract to provide that we're going to reimburse we're going to reimburse at this rate at this frequency and over you it's hard work how are you hurt if we accept their argument on that score in other words what ends up happening is we say listen to the extent it's in a forcible contract ok that what has the state lost if that is the ruling i just understand how the states prejudiced by that at all well the that the states prejudice in the fact that we have an enormous difficulty in monitoring whether or not reimbursement takes place there's no most subpoena power there's no auditing power so whether or not that others have an opinion from this court saying has to be honored i mean you're back to where you started that's already true in other words if you're telling me the problem of these things are very hard to monitor that was true before this law was passed it will be true if this contract is allowed to be enforced for whatever the last couple years the c p a so i don't understand how that adds anything to the argument ok i think i understood the court so if we're going to turbo go to go to the question of how are you prejudiced if it has to be enforced if we get past the idea that the only assume that the contract is valid even though there hasn't been discovery and we would say that if we have to assume or if there's a question of fact that point against like we have success on the merits or pulmonary function but if we got past how are you heard if this contract is honored to the end of the c b s given that any decision saying that the contracts and forcible will say that you've got to honor the reimbursement requirement in michigan law is the state heard in that circumstance your honor i would agree that that's it we're not prejudice any further than we are other than the idea that we've got problems with reimbursement as a whole but if we're only going to look at the idea that this contract through the end of its term is valid and then anything after that has to change and follow comply with the amended version of fifty four three to make sure i'm following your argue the reimbursement problem was true before this state law was passed it's true after that was always a problem of monitoring whether reimbursed was going on correct correct and it's one of the reasons why the statute was amended was to eliminate this loophole that was causing problems that the united backed your stronger argument the first amendment argument i've lost my time this further questions but for me at this point we're good thanks morning your honour's i think there's no dispute here that payroll deduction for separate segregated funds is a crucial fund raising mechanism and that's recognized in a service of it recognized in the miller case the sixth circuit which dealt specifically with the payroll deduction system in michigan so and it's crucial for  judge sudden you asked about this for union members because union members must rely on their corporate employer to allow them to make small periodic regular contributions to support their unions political activity through payroll deduction you asked well what if michigan just outlawed pact checkoff across the board which of course it hasn't done here and i think the answer is that there would still be significant first amendment implications even in that case why because pact checkoff is a speech facilitating mechanism and the first amendment protection extends not just to peers speech but to those kinds of arrangements and mechanisms that facilitate speech you can look at meyer v grant which dealt with or citizens for tax reform here in the sixth circuit which dealt with paying petition circulators well just out of curiosity are there any cases holdings on that question i asked another words could a state say no check off for anybody so it's totally neutral on every possible could be neutral because no one can do it unions corporations you know i haven't seen one i don't think it's been done so yet the principle van is the principle about things that the tell us to facilitate speech right so in other words it well my or b grant developed with a prohibition on paying petition circulators and the state wanted to say the same thing there you can't pay petition circulators whether the petition is about tax reform or any other subject so it wasn't viewpoint discriminatory but it was speech inhibited and the court said that's not permitted certainly without at least surviving strict scrutiny that what often happens in those kind of arguments is you have this debate about alternative ways to express yourself or alternative ways to raise money and so maybe your argument that this hypothetical would violate the first amendment would have had some traction thirty years ago when what we're talking about is people writing checks i mean that's that's the way this was done and checked off does really facilitate things in that world but that world is so far gone and right now you know there's venom oh there's we could you and i could make six contributions during this argument so why do we care i would say it depends your honor on the tenth of your glasses because there is an rebutted record evidence in this case and in many others that for rank and file union members hourly wage earners payroll deduction is the most just six figure i'm asking the question in response to the issue of whether you could get rid of payroll deduction over all right and i guess what i'm sorry i what i'm saying is that for union members for for hourly employees they they are they are used to payroll deduction it's they trust it and they're not used to using venable and at least if you look at the record evidence in this case that says that it's just one example i mean  people pay their bills online now that that's true so so and i guess let me let me not dodge the question because i think the record here is clear that for for the people we're talking about payroll deduction is by far the easiest and most comfortable and most accessible way of contributing on a regular basis in small amounts to your union's political activity but putting that aside we're not dealing with an across the board prohibition here we're dealing with a prohibition that clearly is speaker selective and if we learned anything from citizens united it's that when the government is picking and  choosing whose speech it is enabling and whose it is inhibiting now you have serious first amendment issues here let me just if i can turn to that question of reimbursement that you raised or as it's somewhat pe lee termed expungement by the by the state first of all they say that the theory of this act is that everybody should pay their own way and corporations should pay their for their own pac fund raising and union should pay for there's that's inconsistent with their removal of what has been a longstanding practice in which is that in order to avoid a pretty big contribution the union or any other entity can reimburse the cost of the payroll deduction and then there are that that neutralizes the transaction and it negates a contribution it's not only in the context of checkoff that's universally accepted in michigan and elsewhere and at the federal level because without it you can't do business makes i'm understanding the point you're making is everyone's agreement with reimbursement as a way to solve this problem of free riding off of someone else's check off is proves that they didn't have to get rid of this but that doesn't tell you anything about the first amendment is what my reaction is in other words i get the idea that reimbursement neutralizes this policy problem you might call that a corporation is quote forced to facilitate unions speech efforts but why does that say what does that say about the first amendment argument that's what i don't quite understand i think it goes to the first amendment because again it's not pure speech that the first amendment protects its the ability to fund political speech and here we're talking about political speech which gets paramount protection so in other words if you disable transactions basic transactions that allow people to exercise their first amendment rights that has serious first amendment implications now they cite the source and their site they cite bailey and other cases dealing with the government as an employer and of course that those cases are in that narrow group identified  citizens united of cases where the government's own assistance of speech is it issue is certainly that you there is no right to compel the government to help you but you do have what  right not to be impeded by the government in your political speech and and that reimbursement concept is absolutely essential to facilitate or at least permit political speech let me give you an example and this actually comes from the m b a case you got assigned maker they can't they have they can provide signs to a political candidate but they have to be reimbursed they have to be paid because otherwise that's a contribution so the candidates payment of full market value negates the contribution the same way that say an employee had to r or a bank transaction the bank could not provide that transaction for free it would have to be reimbursed that's a basic transactional necessity in order to operate in this campaign finance regime and so if you say no expungement no reimbursement and of course here it's a targeted prohibition on reimbursement but putting that aside i guess i'm saying even on a blanket basis without any selective ity at all that would be a seriously speech inhibiting policy for the state to undertake but it's allowed but it comes to public  is and again that's recognized in citizens united because the difference i thought the analysis implies of between positive and negative rights was valuable there's no positive right to have the government help you engage in political speech so there is no positive right to the government's assistance but we have a negative right not for the government not to stand in the way  parties freely agreeing on political speech and here freely agreeing on a union in a corporation to allow employees to check off their contributions the corporation can't be forced to do it and that's what pies have talked about and and and they're not this is all consensual it's in collective bargaining agreements it's agreed upon in the give and take of collective bargaining just like a candidate would agree with a sign maker here's what i'll pay you for your science fair market value i mean that that the government should not stand in the way of and cannot i think under the first amendment except in the most compelling circumstances which are not present here any difference between the fact using your example that the reimbursement for the sign occurs at the time the sign is presumably at the time the sign is delivered and that is used as speech whereas here at i don't think we know a lot about what these reimbursement mechanisms are but i'm assuming the union doesn't send a check to the employer every to air for every payroll period where there's a check off do they know  if areas i shouldn't say no i think there's a lot of variation in how this is bargained and how it's done so let's assume that the truing up so to speak occurs once a year just making that up as an example would does that distinguish does the timing distinguish what happens with check off versus your analogy to the sign maker i don't think so judge mckeague and here's why typically what happens is and i happen to be familiar with this a candidate orders signs or airtime or whatever and they're invoiced and then the payment can be made weeks later and in fact the federal election commission's reporting accounts for that and tells candidates you have to report that transaction at the time of the invoice when you when there's an agreement not when you actually pay the bill which could come weeks later so there's no there's the simultaneous simultaneous when the government requires you to report it relevant to the question i think is taking into account the fact that that sometimes the payment is made before sometimes the payment is made at the time of the transaction or the the payment c made after the transaction we all know in the political world there are a lot of these debts that are incurred because services are provided and they're never paid and then that gets into the issue of whether you're making reasonable efforts to try to collect them to prevent the that's beside the point here i mean there's no evidence in this record that the parties didn't reimburse or that these contracts were somehow defective an unenforceable  as the state argues here so a curiosity why has there been this disagreement about producing more than one or two pages of a contract with all respect i think you'd have to ask the state i i think our burden was too good to show the court below what these clauses look like that they're in the contract you're the one that has the contracts and says that they have reimbursement provisions and that they are in accord with existing law and they say you won't give them the pages of the contract that cooperate that well i'm not sure that it matters i'm really just more curious i would i would i would respectfully correct to two parts of that one is we're not saying that that we've been reimbursed we're saying that there's an agreement these are contractual voluntary uncoerced agreements to provide the check off and we provided that language to the court i don't think we had the burden to show that there was reimbursement and if the and to the second point if the state had an issue about that then they should have asked for the entire contract to have three which they didn't  you're the one bringing the empowerment of contract claim on behalf of your clients you agree that it's fair if you win that the reimbursement requirement of the michigan law is in forcible with respect to the c b s absolutely there  secretary of state rulings in michigan that require that reimbursement and if the reimbursements not made then there are mechanisms for enforcing it under the campaign finance law but i'm curious about one statement that you made a moment ago and maybe i didn't hear it correctly i thought you said we're not saying that the reimbursements are made did i misunderstand i don't think i'm what i was trying to say is that it's not our burden it was not our burden in order to obtain  say that the reimbursements are made we just say we just i just i want to make sure i'm following this question are you talking before is the question have the reimbursements been made to date are is the are the accounts even  today is that the question you're answering i do or are you answering a future question if you win the impairment claim well i'm not sure not sure what question i'm answering i guess i'm going to go back to the question i think i hear you saying that you just have to say that there is a reimbursement clause in the contracts and if they want more they it's their problem but that you don't have to say that the reimbursements that are required by the clauses have actually been made either before or after ever is that what you're saying no your honor i'm not saying that we have to say now or had to say that there were reimbursement clauses in the contracts i don't think that was our burden if if your date you're saying that this injunction should stand regardless of whether there are are not reimbursement provisions in the contract yes so in other words you're saying that there's an impairment of contracts regardless of whether you have to comply with a law that says you have to reimburse that seems if i'm wrong understand that crack that seems sort of peculiar argument well i would say this if if there ar is that the contract clause doesn't apply because these contracts were illegal or under forcible and i'm not sure that's even a valid theory under the contracts clause but if and i say that because that doesn't to me have constitutional magnitude if the if there is a if there is a breach or a violation of state law and then that's remedied at the state level and it really doesn't have anything to do with whether an agreement to provide the payroll deduction is worthy of protection under the contract clause if there is a defect in the performance of that agreement then that's room middle of the me let me ask it but under the both of you so you have a call you have a contract a c b a that doesn't say anything about whether you allow checkoff based on race all right it's a sign that just says about check offs the assumption is if there is an impairment of contract clause claim and it's you win that when you enforce the c b s a you're not only going to use it for people that are white or african american and if you tried to do that  state law federal law would prohibit that and you'd be stopped in your tracks right likewise if you have an agreement that doesn't have a reimbursement clause and you try to enforce it without reimbursement state law equally would come into play and force you to comply with that rule that analogy is the same that yes agreed and none of that reflects on the federal constitutional question that we're discussing but which is whether the to have a few points in response to the appellate argument do you want to just respond to the last point we were just on he agreed with that way of thinking about it do you agree with that way of thinking about it i think i understand the court's question and i i think one of the the way that the court is framed that i would  the idea that because at that point we're talking about prospectively we're only toward a new c b s would it would be bound by fifty four three existing current contracts would have their existing current promises and would be as well as whatever the state and federal law rules are that are the backdrop of every contract and i think the only important thing that struck me about this particular sort of circumstance was for the purposes at a preliminary injunction stage and we're talking about likelihood of success on the merits it my problem with it is the idea we made a very simple question of you know you haven't shown any part of your contract that complies with existing law even if we allow reimbursement if we accept the interpret statement you haven't even shown that your current contract provides for that it would be the easiest thing in the world to defeat that argument just to show us the one page of the contract that deals with that and when they've never produced it you could have conceded this point right at the beginning anyway didn't do by saying in the lower court that you interpreted the statute not to apply to existing contracts only to the rollovers only in the idea that if we're talking about a valid contract you know our first objection under the car first argument of the contract clause is that they have not demonstrated the existence of a legal contract they are providing for payroll deductions but they're not providing for the thing that would even arguably doesn't turn on the underlying compliance with michigan law either have the federal right or you doubt you seem to be saying that if it doesn't have the reimbursement language therefore it's illegal and therefore it's not protected under the catch right yes you do disagree with him about whether there needs to be a reimbursement clause in the contract in order to be or religion of the beneficiaries i don't say that my my response rather would simply be if we're talking about something in this particular field where for anyone else carol deductions would be legal if i want a corporation and i want to run a payroll deduction for anyone else's s f i can't do that the only thing that makes it arguably legal for the labor organizations is this interpretive statement that provides for you must reimburse in order to make this legal and if you're going to follow that if you're going to try to fall under that exception i would expect that to be in the contract because again it has to provide for how often are you making the reimbursement what is the value that we place in this reimbursement these are things that would have to be bargained for negotiated with michael started by emphasizing the predominant junction status at their stage in this case it seems to me do this in this particular case i still don't see the prejudice if they agree they have to comply with this rule going forward if the contracts and forcible so i don't really see it but i guess my point is this was a primary junction and i think that in my response your honor i would say that as a preliminary injunction how can they demonstrate likelihood of success on the merits when they haven't even demonstrated that they've been complying with the law and that the contract was legal in the first place that's that's my argument on the on the contract clauses be submitted the clerk may call the next case