Electioneering, AFL-CIO and the Supreme Court

John Nichols of the Nation criticized the AFL-CIO for filing the amicus brief. He argued that the federation was a short-sighted advocate for looser restrictions on electioneering by corporations. 

In a follow-up post, Nichols gives AFL-CIO associate general counsel Laurence E. Gold an opportunity to elaborate on the AFL-CIO’s reasons for filing the brief. Gold stresses that the AFL-CIO is not happy about the Court’s final decision. He explains that the AFL-CIO merely weighed in to continue its fight against restrictions imposed on unions by the 2002 McCain-Feingold campaign finance law.

In fact, the AFL-CIO urged the Court, as we have consistently since the McCain-Feingold Law was enacted in 2002, to invalidate on First Amendment grounds that statute’s criminal prohibition against unions, other non-profit groups and (inevitably, the way the law was written) business corporations for broadcasting any messages that ​‘refer’ to federal candidates, including incumbent officeholders, in the periods shortly before elections.

The AFL-CIO’s brief urged the court to be more lenient with unions than with corporations. The brief argues that unions deserve more latitude because they are democratic organizations. The AFL-CIO’s lawyers stressed that the political speech of unions is closely tied to the views of their members because members who don’t want their dues funding political activity have the legal right to opt out; whereas, stockholders have no direct say over the speech of the corporations they invest in.

However, as Gold notes, eliminating the restrictions on unions and non-profits under McCain Feingold would ​“inevitably” free for-profit corporations to do likewise. If so, it might be foolhardy to stack the coffers of a declining labor movement against the wealth of corporate America.

But from labor’s perspective, competing with corporations without the offending strictures of McCain Feingold might not have been such a problem if if the court hadn’t simultaneously decreed that businesses could dip into their coffers to buy political ads — as opposed to using corporate political action committees (PACs) funded by dollar-limited donations from individuals and subject to spending limits.

The AFL-CIO can be faulted for lending ​“bipartisan” cover to a coalition of corporate and conservative interests. The AFL-CIO’s involvement lent credence the Citizens’ United claim to be fighting for free speech, rather than electoral advantages for monied interests.

In retrospect, the federation should have sat this one out. The Roberts Court was never going to favor unions over corporations in the political arena. On the other hand, if the federation had stayed on the sidelines, it would have given up an opportunity, however slight, to improve the outcome.

Remember that just because an organization files an amicus curiae brief ​“for” one side in a court case doesn’t mean that the group endorses any ruling the court might come up with in favor of ​“their” side. Amicus briefs are an opportunity for interested third parties to try to shape the final decision — but there’s no guarantee the court will listen. Citizens United probably would have been decided much the same way whether the AFL-CIO filed a brief or not.

In the end, the AFL-CIO was no happier with the outcome of Citizens United than anyone else in the labor movement. ​“By allowing unlimited corporate treasury expenditures that explicitly support or oppose particular candidates, the Court has increased the already excessive influence that corporations exert in our electoral system,” AFL-CIO President Richard Trumka said the day the Citizens United decision announced.