(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 enjoin 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 Relations Act (NLRA) pre-empts §§16645.2 and 16645.7 because they 

regulate employer speech about union organizing under circumstances 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 policy where, inter alia, Congress intended particular conduct to “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. 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 market 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 employers 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 analysis 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 unequivocally 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 restrictions 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 regulation, 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, Washington, 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 presented 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 mandating 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 represented 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 unionization 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 organizing.” See Cal. Govt. Code Ann. §§16645.1 to 16645.7. 

This prohibition encompasses “any attempt by an employer 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 restriction applies to “any expense, including legal and consulting fees and salaries of supervisors and employees, incurred 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 undertakings that promote unionization, including “[a]llowing a 

labor organization or its representatives access to the 

employer’s facilities or property,” and “[n]egotiating, entering into, or carrying out a voluntary recognition agreement with a labor organization.” §§16647(b), (d). 

 To ensure compliance with the grant and program restrictions 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 provide 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). Suspected 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, Chamber of Commerce), brought this action against the California Department of Health Services and appropriate state 

officials (collectively, the State) to enjoin enforcement of 

AB 1889. Two labor unions (collectively, AFL–CIO) intervened 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 

—————— 

1The 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 Congress 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 preemption provision, we have held that Congress implicitly 

mandated two types of pre-emption as necessary to implement 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 ‘integrated 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 preemption 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 preemption, 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, collective 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 preempted under Machinists because they regulate within “a 

zone protected and reserved for market freedom.” Building & 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 employee 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 concerted activity for their mutual aid and protection. Section 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 employer 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 expressing 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). Notwithstanding these decisions, the NLRB continued to regulate employer 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 (TaftHartley 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 constitutional rulings of the NLRB. See S. Rep. No. 105, 80th 

Cong., 1st Sess., pt. 2, pp. 23–24 (1947). But its enactment 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 activity 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 regulations that it imposed,’” Golden State Transit Corp. v. Los 

Angeles, 493 U. S. 103, 110 (1989) (Golden State II) (quoting 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) demonstrate that when Congress has sought to put limits on 

advocacy for or against union organization, it has expressly set forth the mechanisms for doing so. Moreover, 

the amendment to §7 calls attention to the right of employees to refuse to join unions, which implies an underlying right to receive information opposing unionization. 

Finally, the addition of §8(c) expressly precludes regulation of speech about unionization “so long as the communications 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 noncoercive 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 violators 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 “tantamount 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 participant, 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 participant. AB 1889 is neither “specifically tailored to one 

particular job” nor a “legitimate response to state procurement 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. Furthermore, 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 distinguish 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 consequential 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 unionrelated advocacy prohibitively expensive for employers 
 Cite as: 554 U. S. ____ (2008) 11 

Opinion of the Court 

that receive state funds. By making it exceedingly difficult for employers to demonstrate that they have not used 

state funds and by imposing punitive sanctions for noncompliance, AB 1889 effectively reaches beyond “the use of 

funds over which California maintains a sovereign interest.” Brief for State Respondents 19. 

 Turning first to the compliance burdens, AB 1889 requires recipients to “maintain records sufficient to show 

that no state funds were used” for prohibited expenditures, §§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 “sufficient” 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 expenditures include not only discrete expenses such as legal and 

consulting fees, but also an allocation of overhead, including “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 federal 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 employer—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 liability. Finally, even if an employer were confident that it 

had satisfied the recordkeeping and segregation requirements, 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 execution of the full purposes and objectives’” of the NLRA. 

Livadas, 512 U. S., at 120 (quoting Brown v. Hotel Employees, 468 U. S. 491, 501 (1984)). Constitutional standards, 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 TaftHartley Acts. See Livadas, 512 U. S., at 120 (distinguishing 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). Although 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 ensure 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 elections, however, Congress has clearly denied it the authority 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 management.’” 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 isolated 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 particular regulatory sphere. New York Telephone, 440 U. S., at 

546 (plurality opinion). In New York Telephone, an employer challenged a state unemployment system that 

provided benefits to employees absent from work during 

lengthy strikes. The employer argued that the state system conflicted with the federal labor policy “of allowing the 

free play of economic forces to operate during the bargain-

—————— 

2See 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 participants 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). Indeed, the tension between the Social Security Act and the 

NLRA suggested that the case could “be viewed as presenting 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. Consequently, the mere fact that Congress has imposed targeted federal restrictions on union-related advocacy in 

certain limited contexts does not invite the States to override 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 Congress did not intend to pre-empt state minimum labor 

standards). But none of the cited statutes is Governmentwide in scope, none contains comparable remedial provisions, 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 reversed, 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 commingled 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 controlled 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 emphasis 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 California’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, embodied 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 preempted 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 prohibited the State from doing business with firms that repeatedly 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 employers, 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 organizing.” 29 U. S. C. §2931(b)(7). And it has forbidden recipients 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 activity was consistent, not inconsistent, with, the policy of 

“encourag[ing] free debate” embedded in its labor statutes. 

 Finally, the law normally gives legislatures broad authority 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 legislature’s decision not to subsidize the exercise of a fundamental 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 association 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 employer 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 regulator 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, overhead), 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 expenditures; they deter the use of commingled funds for prohibited 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 preempt 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 requires recipients of state money to “maintain records 

sufficient to show that no state funds were used” for prohibited 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 employees” 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 subject 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 District Court, the Chamber of Commerce moved for summary judgment arguing that the statute, by placing restrictions on state funds, was pre-empted by Machinists

and Garmon and also arguing that the compliance provisions are so burdensome that they would chill even private 

expenditures. California opposed the motion. And California submitted expert evidence designed to show that its 

“accounting and recordkeeping requirements . . . are similar to requirements imposed in other contexts,” are “significantly less burdensome than the detailed requirements 

for federal grant recipients,” and allow “flexibility in establishing 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 operative provisions interfered with the NLRA’s policy of encouraging “free debate.” 225 F. Supp. 2d 1199, 1204 (CD 

Cal. 2002). But in doing so, it did not address the Chamber 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.