Academic journal article Harvard Law Review

Citizens United at Work: How the Landmark Decision Legalized Political Coercion in the Workplace

Academic journal article Harvard Law Review

Citizens United at Work: How the Landmark Decision Legalized Political Coercion in the Workplace

Article excerpt

Imagine that you are a construction worker for a large, nonunion corporation. One day, your boss tells you that for two months leading up to the next national election, you and several other employees will work full time for the Koch brothers' Super PAC, helping to get out the vote for its preferred candidates. Furthermore, until that time, you are required to spend several hours each weekend participating in that group's phone banking and door-to-door canvassing efforts. And next week, you will attend a rally the group is hosting to demonstrate working-class support for its candidates. Aghast, you tell your boss that you do not support the Koch brothers or their preferred candidates, and do not wish to participate in any of this. He replies that he understands your view, but that these activities are now requirements of your job, and any employee who refuses to participate will be fired.

Most Americans would likely be appalled to find themselves in this situation. Intuitively, the employer's actions might strike us as falling well outside the bounds of what may legitimately be required of employees; as an outrageous violation of our individual autonomy and right to control our own speech; and, perhaps, as an extreme and dangerous extension of corporate power in a democracy. Among our first thoughts might be: "This can't be legal." Until 2010, that instinct was correct. But after the Supreme Court's decision in Citizens United v. FEC, (1) federal law does not protect the employee in the scenario above, nor do the laws of most states. This Note will explain why that is the case, and why Congress can and should act to protect employees from being coerced to participate in their employers' political activities.

INTRODUCTION

The Supreme Court's decision in Citizens United, which held that corporations have a First Amendment right to make independent political expenditures, (2) has profoundly impacted campaign finance law and reverberated throughout the political world. The implications of Citizens United's reasoning for other campaign finance statutes have already been the subject of much scholarly commentary, (3) and some judicial opinions. (4) At least one scholar has also noted that the decision freed corporations and unions to communicate political messages not only to the public, but also to their employees. (5) Yet so far, little attention has been paid to what might be an even more substantial implication for the employer-employee relationship: in the wake of Citizens United, the statutory framework intended to prevent employers from coercing their employees into participating in their political expression no longer effectively serves that purpose.

This Note will explore the impact of Citizens United on political activity in the employment context and will argue that Congress should restore statutory protections. Part I explains how Citizens United has effectively allowed employers to require their employees to participate in their political activities. Part II illustrates some of the ways that employers have begun to use this power, and describes recent Federal Election Commission (FEC) proceedings involving such employers. Part III argues that Congress should address this issue, and offers some considerations to guide the drafting of a potential statute. Part IV explains why such a statute would be consistent with First Amendment doctrine, taking into account the impact of Citizens United.

Before undertaking this analysis, one point of clarification is in order: in discussing "political" activities, this Note refers to electioneering communications and speech that expressly advocates the election or defeat of a candidate. (6) Corporations and unions have long been allowed to engage in certain activities related to the political arena. For example, they may seek to influence elected officials regarding public policy issues. (7) They may also make expenditures to influence the outcome of ballot initiatives. …

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