Freedom of political choice vs. slavery in post-'Citizens United' America...
By Ernest A. Canning on 8/27/2012, 2:39pm PT  

Guest blogged by Ernest A. Canning

In a case where the employment of several members of the United Public Workers (UPW) was terminated after they failed to fully participate in unpaid, off-duty campaign activities on behalf of a union-supported Congressional candidate, three Republican members of the Federal Elections Commission produced an astounding Aug. 21 decision. They ruled that it is perfectly lawful for unions and corporations to compel their members and employees to engage in such activities, sans compensation, as part of "independent campaign efforts."

In their "Statement of Reasons" [PDF], the three GOP Commissioners explained the basis for their remarkable ruling.

They acknowledged that the Federal Election Campaign Act of 1971, 2 USC §441b(a), as well as FEC "regulations prohibit a labor organization [or a corporation] from facilitating the making of a contribution by means of 'coercion, such as the threat of a detrimental job make a contribution or engage in fundraising activities on behalf of a candidate." But, they wrote: "These provisions do not apply to UPW's independent campaign efforts."

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

The FEC's three Republican appointees thus presented not only a novel but a remarkable extension of Citizens United given that 2 USC §441b(c) makes it "unlawful" even for a corporation's or union's "segregated fund" to provide "anything of value" that is secured by a threat of financial reprisal. The statute mandates that employees must be told about their "right to refuse to so contribute without any reprisal."

In their separate "Statement of Reasons" [PDF], the three FEC Democrats, along with Office of General Counsel (OGC), found a clear-cut violation of Section 441b. "Nothing in Citizens United," the FEC Democrats opined, "suggests...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 political views."

According to the Congressional Research Service [PDF], at least four votes are required for the FEC "to exercise core functions." Thus, the 3-3 deadlock prevented the FEC from disciplining the union for anything beyond the fine for non-reporting of the "independent expenditure."

Setting aside the fact that the OGC's and FEC Democrats' interpretation appears to find direct support in the language of Section 441b of the U.S. Code, there's a fundamental constitutional issue that arises from the disturbing GOP interpretation of Citizens United which neither side addressed --- slavery!...

Corporate (and union) slavery?

For the three Republicans, the fact that the union compelled the employees to work on a Congressional campaign merely established that this was an "independent expenditure," for which the union should have filed an "independent expenditures report." Their memorandum failed to so much as provide even a fleeting recognition to the 13th Amendment issues (slavery) that arise when employees are forced to engage in campaign activities on their own time without compensation.

When it was first handed down The BRAD BLOG expressed the view that there has not been a decision of equal infamy to Citizens United vs. Federal Election Commission [PDF] since 1857 when the Court decided Dred Scott vs. Sanford (aka The Dred Scott decision).

In Scott, the Court, in service of wealthy Southern landowner/masters, ruled that African-American slaves and their descendants could never be considered "citizens." They were but chattel, the personal property of their owners. The Southern slave master thus had a right to demand the return of his "property" should his property make the very human decision to escape.

In Citizens United, as we observed, the Court's radical-right, five member majority "opened the door to the creation of a new master-class under the aegis of the most undemocratic of institutions --- the private corporation."

The BRAD BLOG advanced that view in the context of the ability of corporate bought-and-paid-for candidates to flood the airwaves with the corporate message, either directly or through corporate-purchased propaganda time slots; an ability that can drown out the right of citizens to see and hear those who do not tow the corporate line.

This new GOP interpretation adds an ominous context to the phrase "corporate tyranny."

What kind of mindset would reduce the uncompensated labors of a corporate employee or a union member on behalf of a Congressional candidate the employee or union member may, or may not, personally abhor to that of an "independent expenditure?"

How can a Republican Party which extols the virtue of "individual liberty," see the individual employee as nothing more than an asset (chattel?) to be "independently" utilized for political campaigns as the corporation or the union sees fit?

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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