By Mathew Goldstein
The Supreme Court recently announced its latest decisions. We now know that a conservative majority is giving priority to the religious free exercise claims of commercial and non-profit institutions and their owners over the freedom and health of employees and general applicability of religiously impartial, secular laws to all citizens. They are also giving priority to the self-interests of employers over employees.
The conservative majority concluded in Citizens v. United that corporations have a free expression right to use corporate profits in their general treasury for partisan political activism even when employees, or stock investors, disagree with content of the corporation's speech. Investors and employees are thus compelled to finance partisan political speech that they disagree with. After all, a significant portion of the money that corporations are spending on politics is financed by equity capital provided by pension funds — capital contributions employees finance with their paychecks without an option to select the individual companies. This is currently considered to be constitutional. Yet, if executives and shareholders could not use their corporation to advance political positions, nothing would prevent those people who are executives and shareholders from making any speech they want, or spending any of their own money to disseminate that speech.
When a majority of employees vote for union representation, the union is compelled to bargain on behalf of all the employees in the bargaining unit, including anti-union employees. The employees can subsequently vote for different union leadership, to change unions, or to go without a union. It logically follows that all bargaining unit employees can be compelled to pay a union a fee each year to cover the costs of this union representation. Employees can voluntarily pay an additional union membership fee to qualify for optional union membership benefits or they can donate to a union affiliated PAC. The union can then utilize this extra voluntary income to finance partisan political activity. But to compel employees to pay a union fee for collective bargaining still supports the functioning of the union, and unions, along with corporations, now have a right to engage in partisan political advocacy. Accordingly, the conservative majority recently declared in Harris v. Quinn that compelled collective bargaining fees are unconstitutional compelled speech. Unions must now depend on employees being self-sacrificing idealists for financing of their primary collective bargaining function.
So employees and investors are compelled to support the partisan political speech of corporations, unions are compelled to represent all of the bargaining unit employees, and employees cannot be compelled to pay the union for collective bargaining because unions can engage in partisan political speech. Is this what the constitution says according to the conservative majority? Do they really think this makes sense? Can someone tell me that I am misunderstanding what the conservative majority is doing? The way I see this, at a minimum, pension plans now need to ensure that employees are not compelled to indirectly finance corporate political speech by granting employees an opt out from investing their money in any companies that they disagree with. Until they do, pension funds will be vulnerable to the challenge that they are violating the First Amendment. After they do, pension funds will incur additional expense to provide this opt-out.
If there are legitimate and principled reasons for heavily discounting the legitimacy of the political advocacy of organized labor while simultaneously exalting the legitimacy of the political advocacy of organized capital, then let's hear the conservative majority try to explain what they are. It would make much more sense to acknowledge that both corporations and unions have economic functions that need to be kept separate from their partisan political activities. Their secondary partisan political activity should be financed separately from their primary economic functions via a PAC. We should rely on a separate category of corporation for journalism companies that can engage in partisan advocacy but not engage in other types of commerce. The conservative majority is unnecessarily creating a big, complicated, mess by using a free speech rationale to combine the economic functions of corporations and unions with their partisan political activities.