Forcing Employees to Campaign in Wake of Citizens United

New revelations by coal miners that they were ordered to attend, without pay, a rally for Mitt Romney raises serious questions in today’s post-Citizens United world. This is particularly true in light of a recent decision by the Federal Election Commission (FEC).

As the Republican National Convention convened this week, allegations surfaced that a group of coal miners had been told by their employer to participate in a campaign event for Governor Romney, then the presumptive GOP nominee. Because the Ohio-based miners feared for their jobs, they attended the August 14^th event and contributed to the Romney campaign.

They also lost a day’s pay.

An executive with the employer, Murray Energy Corporation, denied the coercion but admitted the miners were not paid, citing federal election law.

How does this relate to Citizens United?

Just a week after this rally involving these miners, the Federal Election Commission—rather, the 3 Republican commissioners—found that unions and corporations can compel their employees to campaign for and contribute to political candidates determined by the employer.

The facts were not in dispute. The United Public Workers, AFSCME Local 646, AFL-CIO (“UPW” or “union”) held a mandatory meeting at which managers stated that employees were “expected” to participate in certain after-work activities supporting a particular candidate for Congress. These mandatory activities included sign-waving, telephone banking, and canvassing—all during specified times after their normal Monday to Friday work week and on Saturdays. Additionally, employees who had other obligations outside work [who doesn’t?] were directed to inform their other employers that they would be unavailable for the next 6 weeks.

None of these employees was compensated for their after-hours campaign activities, nor were these activities part of any employee’s normal duties. It should be noted that the union in this case was acting as an employer. None of the employees involved was a member of this union; they merely worked for one.

Two employees informed their managers that they would be unable to participate in Saturday activities due to other part-time weekend employment. Both were subsequently terminated.

UPW argued that Citizens United permitted it to compel these employees to participate in the campaign.

Both the FEC’s own Office of General Counsel and the three Democratic commissioners agreed that the union (as an employer) violated the Federal Election Campaign Act of 1971 (2 U.S.C. § 441b(a)). The Republican commissioners disagreed:

UPW’s independent use of its paid workforce to campaign for a federal candidate post-Citizens United was not contemplated by Congress and, consequently, is not prohibited by either the Act or Commission regulations.

Commission regulations specifically prohibit a labor organization from assisting in candidate support by means of coercion, such as the threat of a detrimental job action, the threat of any other financial reprisal, or the threat of force, to urge any individual to make a contribution or engage in fundraising activities on behalf of a candidate or political committee.” 11 C.F.R. § 114.2(f)(2)(iv).

The GOP members distinguished between forcing an employee to make a contribution and forcing them to work for free on behalf of a candidate and, in fact, be expected to forego part-time compensation at another job. The commissioners continued: “Had the employees not been compelled to participate, but instead, merely had been volunteers, their activities would not have constituted independent expenditures by UPW.”

These commissioners concluded that “requiring employees to work on independent expenditures for either the union or a non-connected political committee is not a violation of the Act or Commission regulations.”

By this logic, ANY employer can require its employees to do exactly what occurred to those miners standing behind Mitt Romney in Ohio: 1) participate in a campaign event of the employer’s choosing; 2) contribute to a candidate also chosen by their employer; and 3) not be paid their customary wages for their efforts. Oh, and it’s okay if they feel compelled to attend for fear of losing their jobs. It’s also permissible for an employer to compel them to forego other part-time employment and other personal obligations to campaign for a candidate not of their own choosing.

The Democratic members took a different view:

Nothing in Citizens United suggests, however, that the Court intended to expand the rights of corporations and unions at the expense of their employees’ longstanding rights to be free from coercion and to express or decline to express their own political views.

The GOP members of the FEC have essentially shredded the terms of the Federal Election Campaign Act of 1971 and removed the teeth of its enforcement provisions.

Slave labor was prohibited by the Thirteenth Amendment. If this is the logical extension of Citizens United, then no one is safe.