Academic journal article Columbia Journal of Law and Social Problems

Sunlight Is the Best Disinfectant: Public Disclosure of Electoral Advocacy in Union Member Communications

Academic journal article Columbia Journal of Law and Social Problems

Sunlight Is the Best Disinfectant: Public Disclosure of Electoral Advocacy in Union Member Communications

Article excerpt

In 1948, the Supreme Court held in United States v. CIO that the statutory ban on direct union spending in federal elections could not be applied to electoral advocacy by leaders of an organization directed at the members of that same organization. As a result, federal and state laws now generally exempt such internal communications from the definition of "expenditure" under campaign finance laws. But in its landmark 2010 decision Citizens United v. FEC, the Supreme Court declared the ban on direct corporate campaign spending itself unconstitutional. The Federal Election Commission soon thereafter announced that the ruling would also apply to unions. There is now no doubt that an organization such as a union or a corporation may directly spend money on electoral advocacy. Given this framework, this Note argues that internal communications between the leaders of an organization - in particular, a union - and its members that directly advocate for or against the election of a particular candidate can and should be subject to mandated public disclosure.

I. INTRODUCTION: INTERNAL COMMUNICATIONS, UNITED States v. CIO and Citizens United

A. INTERNAL COMMUNICATIONS

An oft-overlooked but potentially powerful area in which campaign finance laws play out is internal communications. Internal communications are materials such as publications, newsletters and pamphlets that unions send to their members or corporations to their shareholders. These communications are powerful because of the large memberships unions possess and the influence union leaders have over their members. Union membership is by definition connected to the workplace, and thus workers are usually members of only one union. By contrast shareholders typically have diversified portfolios and are therefore less susceptible to propaganda disseminated through corporate communications. Members of labor unions do not trade their memberships. Moreover, union members are more likely to share certain political views with union leadership by virtue of their common interests, specifically, political support for their particular industry.

The sheer size of union membership makes their political activities particularly important. For example, the National Education Association, America's largest labor union, has 3 million members.1 AFSCME, the American Federation of State, County and Municipal Employees, has 1.6 million members.2 And the famous AFL-CIO, an umbrella labor federation, includes more than 12 million members in its 57 unions nationwide.3

Until 2010, unions and corporations were barred from making direct expenditures and contributions in federal elections by the Tillman Act of 19074 and the Taft-Hartley Act of 1947.5 They could influence elections only by setting up segregated funds, often called political action committees (PACs), under the framework of the Federal Election Campaign Act of 1971 (FECA).6 It was within this legal landscape that the Court handed down its major decision analyzing member communications under federal campaign finance law: United States v. Congress of Industrial Organizations, et al.1 In that case, the Court held that member communications need not be publicly disclosed.

In 2010, however, the Supreme Court struck down the underlying ban on direct campaign contributions by unions and corporate bodies in Citizens United v. Federal Election Commission (FEC).8 A change in disclosure rules may be in order on the heels of Citizens Uniteds push for disclosure in place of contribution and expenditure limitations. A series of post-Citizens United circuit court cases have analyzed challenges to disclosure requirements under exacting scrutiny, the intermediate standard for judicial review mandated by the Supreme Court. A possible disclosure requirement for union-wide communications is in line with these cases, and federal, state and local governments should implement such regulations.

B. UNITED STATES V. CIO

In 1948, the Supreme Court examined member communications distributed by part of the Congress of Industrial Organizations (CIO). …

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