Citizens, united and Citizens United: the future of labor speech rights?

• Author: Garden, Charlotte

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. Second, even without the accounting and reporting requirements that come with operating a PAC, unions must still comply with other segregation and reporting requirements in order to avoid spending fees submitted by nonmembers on political speech. Third, although Citizens United freed unions to spend money derived from sources other than union dues on political speech, it is unlikely that there is much such money to spend.

However, Citizens United's broad articulation of First Amendment principles also has the potential to expand unions' First Amendment rights outside of the election context. In particular, Citizens United undermines the reasoning by which the Court has repeatedly--and at times inexplicably--upheld limitations on unions' picketing and boycott activity and made it more difficult for unions to obtain and use for political speech dues and fees paid by represented workers. Thus, Citizens United has the potential to expand what unions can say, how they can say it, and how they can pay for that speech.

To reach this conclusion, this Article looks beyond a narrow reading of Citizens United that is limited to the campaign finance arena and instead focuses on the Court's articulation of broader First Amendment principles as applied to unions and corporations.

Specifically, the Court:

* rejected the argument that some methods of conveying an idea could be restricted provided other methods are available, particularly when those other methods are less effective;

* placed no importance on whether a particular speaker sought to speak in pursuit of profit, rather than engage in self-expression, pursue social change, or vindicate a similar purpose;

* placed significant importance on the rights of listeners to hear all available viewpoints;

* rejected as a rationale for limiting corporate speech the fact that corporations may express views not held by their shareholders;

* stated, without discussion, that a corporation was an association; and

* implied that associations have First Amendment rights that are independent from those of their members. (6)

This Article argues that these principles cannot be reconciled with the Court's decisions upholding the constitutionality of existing limits on labor speech, including Congress's prohibition of certain union-led strikes and boycotts, antitrust limitations on labor organizing and striking by workers who are not covered by labor law, and judge-made law protecting "objecting" workers from having to contribute to union political speech. Part I of this Article extracts from Citizens United the relevant principles of First Amendment law that the Court applied to corporations and unions. Part II describes what this Article calls Citizens United's "direct" and "indirect" effects on labor speech and discusses why Citizens United may be a net loss in terms of unions' election speech but a win in terms of broader labor speech rights. Finally, Part III addresses some reasons that courts may not adopt this analysis.

1. CITIZENS UNITED'S FIRST AMENDMENT

   The Citizens United petitioners challenged section 203 of the Bipartisan Campaign Reform Act (7) (BCRA), which banned corporations and unions from spending general treasury funds on direct political advocacy for or against federal candidates, (8) as well as on "electioneering communications," (9) which merely refer to candidates for federal office shortly before an election. Specifically, Citizens United, a nonprofit corporation, sought to use its general treasury funds to make available via "video-on-demand" a ninety-minute documentary that was sharply critical of Hillary Clinton. (10) Because it wished to distribute the video within sixty days of the 2008 presidential election, and because Citizens United accepted corporate funding, BCRA's ban at least arguably applied. (11)

   The Court began by addressing a number of narrow arguments that BCRA did not apply to Citizens United's documentary. (12) Among them was Citizens United's argument that BCRA could not constitutionally be applied to video-on-demand because that medium required a potential viewer to take "a series of affirmative steps" in order to watch the program and thus had a relatively low risk of distorting the political process. (13) The Court brusquely rejected this argument, stating that "any effort by the Judiciary to decide which means of communication are to be preferred for the particular type of message and speaker would raise questions as to the courts' own lawful authority," and that, in any event, the line-drawing process would be "questionable" and would chill protected speech. (14) Thus, even though some forms of speech are much less likely to reach listeners, the Court refused to distinguish between different methods of conveying a particular message--either all methods would be available, or none would.

   Having dispensed with that and other relatively narrow arguments, the Court turned to the facial challenge to BCRA's independent expenditure provision. (15) The Court began by noting that the ban would apply to advocacy organizations such as the Sierra Club, the National Rifle Association, and the American Civil Liberties Union, and that such application would constitute "classic examples of censorship." (16) Indeed, the majority opinion discussed for-profit corporations and advocacy organizations essentially interchangeably, all under the rubric of "associations," (17) with the only nod toward the possibility of distinguishing between them--and an ambivalent one at that--coming in Justice Scalia's concurrence. (18) Thus, the Court overruled Austin v. Michigan Chamber of Commerce--which upheld campaign finance restrictions that applied to corporations but not unions or advocacy groups (19)--because that holding "permit[ted] the Government to ban the political speech of millions of associations of citizens." (20) Further, the Court implied that, as associations, corporations had First Amendment rights independent from those of their constituent shareholders or members...