[EL] Hawaii Union Employees Case

Sun Aug 26 15:02:13 PDT 2012

This case is a staggering example of how what many on this list call 
"freedom" -- the unfettered right of entities organized for economic 
purposes to use all the resources at their disposal to influence the 
outcome of elections -- can be profoundly oppressive to individuals 
attempting to exercise their own rights as citizens and to speak in 
their own voice.

Hopefully there's a remedy for this kind of abuse of the employment 
relationship in employment law, if not in campaign finance law (or 
campaign finance law as 50% of the current FEC interprets it). At-will 
employment is a pretty sweeping doctrine -- you can be fired for any 
reason or no reason -- but there are some generally recognized 
exceptions, such as for people who are ordered to testify falsely in 
court. There must be cases like this in employment law, or cases where 
employees were required/expected to volunteer for a non-political cause. 
It will vary from state to state, though.

Mark Schmitt
Senior Fellow, The Roosevelt Institute <http://www.newdeal20.org>
202/246-2350
gchat or Skype: schmitt.mark
@mschmitt9 <https://twitter.com/#%21/mschmitt9>
On 8/26/2012 12:10 AM, Rick Hasen wrote:
> A reader sent along the following observations:
>
>     There has been some confusion on this case.  The employees were
>     not on the clock.  They were required to participate in political
>     activities outside of work.  If you read the statement of the
>     Democratic Commissioners, it is pretty clear that the problem here
>     was not that this was a work duty, but a requirement that they
>     donate their own time to the Union's independent expenditure
>     activity. Maybe a subtle distinction, but it makes the question
>     somewhat different than what Prof. Scarberry's email addresses.
>
>     From page 2 of the Dems statement: "There is no evidence, and the
>     union does not suggest, that any employee was compensated for
>     participating in after-hours campaign activities. Nor has the
>     union attempted to argue that such activities were part of any
>     employee's normal duties."
>
>     In fact, the reason the costs weren't reported as part of the IE
>     is because the union argued the employees were volunteering on the
>     own time.
>
>
>
> On 8/24/12 10:32 PM, Scarberry, Mark wrote:
>>
>> 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
>> 401 E. Peltason Dr., Suite 1000
>> Irvine, CA 92697-8000
>> 949.824.3072 - office
>> 949.824.0495 - fax
>> rhasen at law.uci.edu  <mailto:rhasen at law.uci.edu>
>> http://law.uci.edu/faculty/page1_r_hasen.html
>> http://electionlawblog.org
>> Now available: The Voting Wars:http://amzn.to/y22ZTv
>>   
>>
>>
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>
> -- 
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org
> Now available: The Voting Wars:http://amzn.to/y22ZTv
>
>
>
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