Although the public has deep concerns about corporations dominating the 2012 election — Bannon Communications Research recently reported that nearly 9 in 10 Americans believe there is way too much corporate money in politics, and more than 8 in 10 say corporate political spending drowns out the voices of average Americans — defenders of Citizens United claim the blooming of a thousand corporate voices is a victory for free speech. They rightly point out that the First Amendment protects speech regardless of whether it enjoys majority support, and that speakers cannot be silenced merely because they are unpopular.
But for voters employed at some politically active companies, Citizens United has resulted in precisely this type of suppression of dissident political speech.
To the extent the decision’s effects stifle individual citizens’ political voices, it cannot be squared with the vision of the Founders. They ratified the First Amendment to ensure that all viewpoints would be heard, and that political debate would be “uninhibited, robust, and wide open.”
Yet when an employer distributes thinly-veiled electioneering materials to its rank-and-file workers, the political speech of employees who hold dissenting is inevitably censored.
This is not a hypothetical concern. A series of recent reports have documented instances in which employers sent exactly these types of memos to their workforce. Emails or letters from management, containing implicit exhortations to vote for Mitt Romney, have surfaced at more than a half-dozen companies from Florida to Michigan to Oregon, often warning employees that their jobs might be eliminated if President Obama is reelected.
The CEO of an Ohio coal company reportedly required employees to attend a rally for Mitt Romney — without pay — prompting at least three political TV ads about the incident. A spokesman for the coal company later “clarified” that while the rally “was mandatory … no employee was forced to attend.” Think about those employees who might support Obama. Would you really think you could skip a political rally your boss says is mandatory without any negative consequences?
The employers sending out these memos have been careful not to explicitly say anyone will be fired if they don’t vote the way the boss wants, insulating the companies from prosecution for violating federal laws against coercing or intimidating voters. But because of the inherent power disparities in the employer-employee relationship, a certain degree of coercion inevitably seeps in when electioneering materials are distributed in the workplace—and dissenting voices are silenced.
A worker who supports a candidate the boss publicly opposes will be reluctant to engage in open political debate with her co-workers or supervisors. No employee is going to be comfortable parking in the company lot with a bumper sticker supporting the boss’s disfavored candidate. Just ask the employee of an Alabama-based housing insulation company, who was fired in 2004 for having a pro-Kerry bumper sticker on her car. In many circumstances, voters with vocally political employers will be reluctant even to post political messages on social media, or to post yard signs supporting the candidates, parties, or political ideas they favor. This is the opposite of free, uninhibited political debate.
Whatever misgivings the public may have about negative TV ads funded by corporate money in the public square, it should be clear that corporate electioneering in the workplace is all the more objectionable.
The inherently coercive nature of employers’ political speech in an economy where jobs are scarce warrants protections for employees’ First Amendment rights that don’t apply outside the employment context. And while some states have enacted laws prohibiting retaliation against employees who resist management’s political indoctrination, federal law is silent.
When the dust settles after Election Day, Congress should pass legislation to protect employees’ free speech rights from employer coercion. The Supreme Court’s decision that corporations can say what they want in the political marketplace shouldn’t mean that employees have to check their First Amendment rights at the workplace door.
Skaggs is senior counsel in the Democracy Program at the Brennan Center for Justice at N.Y.U. School of Law.