Union Members and Coerced Campaigning

By Dean Galaro

Published on August 29, 2012

The United Public Workers (UPW), a public employee union in Hawaii, has attracted the attention of the Federal Election Commission (FEC). In 2010 the union participated in activities to support Colleen Hanabusa, then-candidate for the fist congressional district of Hawaii, including sign waving, canvassing and a phone bank. It is alleged that two employees were fired from UPW for refusing to participate in the political activities. Is it legal for a public union to coerce employees to participate in political activism for a candidate outside of the employees’ normal working duties and hours?

In two documents released this month by the FEC under the category of “Matters Under Review,” the six members of the commission split decisions down party lines as to whether or not the UPW acted outside of the scope of the Federal Election Campaign Act of 1971 (most recently amended through the Citizens United ruling in 2010). The three Democrat members concluded that the UPW went too far in its activities, while the Republican members have recently dissented and found that UPW did not violate federal election laws.

Specifically, the Commission is split on the issue of 2 U.S.C. § 441b(a). The law states: “It is unlawful for…any labor organization…to make a contribution or expenditure in connection with any election at which…a Senator or Representative in, or a Delegate or Resident Commissioner to, Congress are to be voted for.” As defined in section 441b(b)(2), a prohibited “contribution or expenditure” includes “gift of money, or any services, or anything of value…to any candidate, campaign committee, or political party or organization, in connection with any election to any of the offices referred to in this section.” In other words, a labor union like the UPW cannot contribute services to aid the election of a specific candidate in a Congressional election. It can, however, act and spend independently (i.e. independent expenditures).

According to the Statement of Reasons written by the Democratic members of the Commission, dated August 7, UPW never denied that there were mandatory meetings about the campaigning activities, although it did deny that participation in the political activities was a condition of further employment. Reasons for the termination of the two employees who could not participate in the political activities were never specified.

The FEC has previously discussed a similar issue. In 2009 the Commission decided that the International Union of Painters violated 441b(a) through member participation in activities for John Kerry’s presidential campaign in 2008. Unfortunately, the investigation was hampered by unreliable evidence and it was concluded that the violations of 441b(a) were infrequent and not actually coerced. Additionally, the FEC’s main concern was that employee time spent for the campaign was not made up later, resulting in in-kind contributions.

While labor unions, like corporations, are allowed to advocate for a specific candidate through independent expenditures, coercion on union members should be a different issue altogether. The FEC statement from August 7 concludes that “[n]othing in Citizens United suggests, however, 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 own political views.” This action, the commissioners suggest, “would run counter to objectives that Congress has repeatedly articulated.”

Unfortunately, the law does not specifically prohibit a labor union from using its members in this manner so long as the members are not coerced into making financial contributions or participating in fundraising. As noted by the response by the Republican members of the Commission dated August 21, “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 regulation.” Thus, while it may be true that UPW’s action run counter to what Congress wanted from the Federal Elections Campaign Act, which was to create a more open and honest campaign process, the original act and its many amendments have been tailored towards the issue of finances and coercion thereof.

This decision and interpretation of Citizens United and FEC regulations should give pause to both union members and all those concerned with the rights of citizens to freely act politically. There are almost 16 million members of public and private unions in the United States, and these members should not be in danger of political coercion due to their status as a union member. Financial freedom is important in an election year, but so is one’s time and energy outside of normal work hours.

While it is important that forced financial contribution and fundraising is prohibited it is also important to understand what is not prohibited, namely the use of union members for campaign activities like canvassing and phone banks. This should not stand. Many have taken issue with the financial provisions of Citizens United, and many more should take issue with the lack of regulation in respect to union required use of members’ time for the purpose expression through independent expenditures.

The Author

Dean Galaro teaches high school math and history at a bilingual school in Honduras.

Article picture: Aloha_Mahalo via Pixabay


Law & Philosophy