Unions Keep an Eye on Campaign-Finance Case

By Mark Walsh — September 09, 2009 4 min read
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A U.S. Supreme Court case that started out as a test of whether an anti-Hillary Clinton movie by a nonprofit advocacy group violated federal campaign-finance law has become something much bigger.

In ordering a reargument of Citizens United v. Federal Election Commission (Case No. 08-205) in June, the justices asked the parties to address whether the court should overrule two of its important campaign-finance precedents. And that opened up the possibility of a major shakeup in this area of the law that could allow corporations (both for-profit and non-profit) and labor unions to spend money directly from their own treasuries to influence the outcome of federal and state elections. That’s something they can’t do under current law, which requires unions and corporations to establish political action committees that collect voluntary donations from union members or corporate employees to be used in the political arena.

Although they are largely on the sidelines of the Citizens United case, the politically powerful national teachers’ unions are paying close attention.

The Supreme Court “could invalidate the heart of campaign-finance regulation,” Phil Hostak, a staff lawyer at the National Education Association who has been following the debate, said in an interview.

Both Hostak and Robert H. Chanin, the NEA’s longtime general counsel, insisted in the interview that they would rather not see the Supreme Court overturn its campaign-finance precedents, even though a loosening of restrictions on union treasury spending on politics could boost the power of politically active unions.

But Hostak and Chanin point out that any such ruling would also allow corporations freer rein in the political arena as well.

“Ultimatley, there’s just no question that the labor movement as whole can’t marshal the kind of resources that the Business Roundtable, or the [U.S.] Chamber of Commerce, or, say, the insurance industry can amass,” Hostak said, referring to two influential business lobbies in the nation’s capital.

Keeping the status quo would “preserve the balance” struck in existing campaign-finance laws, Hostak said.

Chanin, who is retiring at the end of this year, said, “Even the largest unions are not in a league with big corporations” when it comes to potential spending on elections.

The lawyers said they opted not to file a friend-of-the-court brief in the Citizens United case, noting that the justices were swamped with briefs from scores of groups.

One labor organization that did file a friend-of-the-court brief is the AFL-CIO, the federation of 56 U.S. and international unions representing 11 million workers. The American Federation of Teachers is an AFL-CIO member, but the NEA is not.

The AFL-CIO calls for overturning federal campaign-finance restrictions on union and corporate spending on the grounds that the restrictions violate the First Amendment free-speech rights of those entities.

The labor federation again urged the Supreme Court to overturn the provisions of the Bipartisan Campaign Reform Act of 2002 (better known as the McCain-Feingold law) that criminalize violations of restrictions against “electioneering communications.” The AFL-CIO had been part of a major challenge to the McCain-Feingold law in which the court upheld most of its provisions.

“The AFL-CIO ... did so because this provision criminalized the AFL-CIO’s use of the broadcast medium as a legislative and policy advocacy tool, falsely characterized substantial labor organization speech on matters of public concern as wholly or substantially electoral, and impaired union political participation as a matter of law,” the federation said in its brief, which is on the side of the advocacy group that is producing the movie critical of Hillary Clinton.

Today’s 90-plus minute re-argument (PDF) in the Citizens United case marked the first case heard by new Justice Sonia Sotomayor. The new justice questioned whether the case was the appropriate vehicle for such a broad reconsideration of campaign finance.

“Mr. Olson, my difficulty is that you make very impassioned arguments about why this is a bad system that the court [has] developed in its jurisprudence, but we don’t have any record developed below,” Sotomayor said to Theodore B. Olson, the lawyer representing Citizens United and arguing for the campaign-finance precedents to be overruled.

Her questions and comments appeared to put her leaning on the side of the court’s more liberal members, who either support the federal restrictions or were seeking a narrow way to find that the Hillary Clinton movie was not in violation.

But three of the court’s more conservative members--Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas--are on record as believing many campaign-finance restrictions on corporate and union spending violate the First Amendment. And two members who were not on the court when it considered the McCain-Feingold law, Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr., have suggested that they are leaning toward the First Amendment view.

“We don’t put our First Amendment rights in the hand of FEC bureaucrats,” Chief Justice Roberts said at one point.

A version of this news article first appeared in The School Law Blog.