Citizens, United and Citizens United: The Future of Labor Speech Rights?

By Garden, Charlotte | William and Mary Law Review, October 2011 | Go to article overview

Citizens, United and Citizens United: The Future of Labor Speech Rights?


Garden, Charlotte, William and Mary Law Review


ABSTRACT

Within hours of its announcement, the Supreme Court's decision in Citizens United v. FEC came under attack from progressive groups. Among these groups were some of America's largest labor unions---even though the decision applies equally to unions and for-profit corporations. The reason is clear: there exist both practical and structural impediments that will prevent unions from benefitting from Citizens United to the same extent as corporations. Therefore, Citizens United stands to unleash a torrent of corporate electioneering that could drown out the countervailing voice of organized labor.

This Article, however, takes a broader view of Citizens United to explore a possible silver lining for labor. It posits that, in articulating a wide-ranging vision of associations" free speech rights, the Court undermined the intellectual basis of a lengthy string of cases that has limited the First Amendment protection applicable to labor-related speech in other contexts, such as picketing, boycotting, and striking. Additionally, by discounting the First Amendment interests of dissenting shareholders, Citizens United calls into question the validity of restrictions on unions' use of lawfully collected dues and fees for political speech and new organizing. Accordingly, this Article concludes that Citizens United has the potential to impact significantly unions" First Amendment rights outside of the campaign finance arena.

TABLE OF CONTENTS

INTRODUCTION

I. CITIZENS UNITED'S FIRST AMENDMENT

II. CITIZENS UNITED AND LABOR UNIONS
    A. Citizens United's Direct Effects
    B. Citizens United's Indirect Effects
       1. Labor Picketing and Boycotting, and the
          Waning Relevance of Unions' "Economic" Mission
          a. Labor Picketing
          b. Strikes and Boycotts
          c. Citizens United: Replacing Motive and
             Identity with Category and Structure
       2. Workers Who Object to Union Membership
          a. Labor Law's Approach to "Objectors"
          b. Citizens United's Approach to Objectors

III. OBJECTIONS
    A. The NLRA and Protection of Commercial Stability

CONCLUSION

INTRODUCTION

Today the US Supreme Court lifted the floodgates and started dismantling century-old restrictions on corporate electoral activity in the name of the "free speech rights" of corporations--meaning if you are a "corporate person" (aka a CEO or corporate official), you are now free to hit the corporate ATM and spend whatever of your shareholders" money it takes to elect the candidates of your choice.

--Anna Burger, former Secretary-Treasurer of the Service Employees International Union, commenting on Citizens United v. Federal Election Commission. (1)

The Supreme Court's recent decision in Citizens United v. Federal Election Commission (2) made headlines for its controversial holding that corporations have the same First Amendment rights as people to engage in independent election-related speech. (3) Predictably, much of the reaction focused on the extent to which Citizens United would afford corporations greater influence over the outcomes of elections, leading opponents of expanded corporate power--including labor unions--to condemn the decision. Yet Citizens United also applies to labor unions, freeing them to spend general treasury funds on electioneering (4)--and raising the question of why unions' reactions to Citizens United were nearly universally negative.

On one hand, the answer to this question is apparent: when it comes to election-related speech, Citizens United is a net loss to unions, as compared to corporations. (5) For several reasons, unions are unlikely to realize much benefit from being relieved of the obligation to channel certain election advocacy through a political action committee. First, unlike small businesses and associations that may have been deterred from engaging in election advocacy because of the difficulty of creating a political action committee (PAC), many unions either already operate PACs or are affiliated with parent unions that do. …

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