[EL] Hawaii Union Employees Case

[Scarberry, Mark]

I suppose that if a corporation or union is permitted to engage in campaign speech and chooses to do so, it has to do it through its employees. If GE's board or management decided to send out letters urging people to vote for Gov. Romney, would the GE employee who prepares mailings be entitled to refuse to handle the letters? Would the copy writer be entitled to refuse to write the letter? If the publisher of the NY Times asks a staff writer to write an editorial endorsing Pres. Obama, could the writer assert a right not to do so? Maybe employees should have some statutory or common law right under some circumstances not to assist in political activity with which they disagree, but it doesn't seem to me that they have a constitutional right to retain private employment and to refuse to communicate the corporation's or union's message.

At first I thought the story was about unions requiring workers who were represented by the union to do campaign work, which would be even worse than requiring them to pay dues for political campaigning. But these people were employees of the union; the union was their employer, not their bargaining representative.

Perhaps I'm missing something. I think it was wrong for the union to require its employees to do campaign work (assuming they weren't hired to do public relations or similar work for the union that would necessarily involve them in putting out the union's message), but it doesn't seem to me to violate the employees' rights, at least in the absence of a relevant statute. The GOP members of the FEC seem to be right that the statute invoked in this case does not apply, because the workers weren't being coerced to contribute to a candidate or to do fund raising for a candidate. The union's activity was independent. They did agree, if I'm reading the statement correctly, that the union should have disclosed the value of the workers' time as an independent expenditure, and that it could be sanctioned for not doing so.

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Friday, August 24, 2012 9:11 PM
To: law-election at uci.edu
Subject: [EL] ELB News and Commentary 8/25/12

...
"Making Employees Do Campaign Work Does Not Break Law, FEC Republicans Say"<http://electionlawblog.org/?p=39083>
Posted on August 24, 2012 6:38 pm<http://electionlawblog.org/?p=39083> by Rick Hasen<http://electionlawblog.org/?author=3>

WOW<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=27694789&vname=mpebulallissues&jd=a0d4g2y8d9&split=0>: "An organization may require its employees to participate in campaign activities during work time without violating campaign finance laws, according to the three Republican members of the Federal Election Commission. A statement, released Aug. 24, explained the votes of the FEC Republicans to dismiss coercion charges leveled against a Hawaii government workers union, the United Public Workers (UPW)."

"The 'statement of reasons' filed in the matter by the three FEC Republicans is online at http://eqs.nictusa.com/eqsdocsMUR/12044320562.pdf. The FEC Democrats' statement is at http://eqs.nictusa.com/eqsdocsMUR/12044314776.pdf."

This could potentially be very big.

...

--

Rick Hasen

Chancellor's Professor of Law and Political Science

UC Irvine School of Law

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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>

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