Epstein: "How Unions Violate Free Speech"

How Unions Violate Free Speech
Richard A. Epstein
Defining Ideas
July 17, 2012

Money is what drives all major election campaigns. In the run up to the 2012 presidential election, sharp knives have already been drawn on the issue of corporate and union contributions. In addressing this issue, virtually all roads lead back to the much-contested Supreme Court decision in Citizens United v. Federal Election Commission, which made it unconstitutional for the federal government to restrict any “electioneering communication” to the public by a corporation or a union within 30 days of a primary or general election.

Judging from the near hysterical response to this case, one might have thought that all corporations were devils, such that their total exclusion from political discourse should be required. But even if those radical critiques of Citizens United are mercifully put to one side, a more serious issue remains. Is it possible, in dealing with this issue, to retain some semblance of the balance of power between corporations and unions? In principle, that outcome is fairly inferred from the majority view in Citizens United. It is a generally salutary principle that in any area of political contention, the federal government should not tilt the table in favor of either side. But in the struggle between management and labor, the execution of this particular plan runs into a set of technical difficulties, given that corporations and unions are, as will become clear, organized under very different principles.

Pension Funds and the First Amendment

In a recent op-ed in the New York Times, Harvard Law professor and former assistant General Counsel of the Service Employees International Union (SEIU) Benjamin Sachs makes the provocative case that current public employee pension fund practices violate free speech. One key component of both Citizens United and the larger body of First Amendment law is that no individual should be forced to support political organizations or causes against his or her will. In Sachs’s view, that position applies to the contributions that public employees are required to make to their own pension funds as a condition of their employment.

Richard A. Epstein