In the New York Times last week, Commissioner Ellen Weintraub of the Federal Election Commission penned an op/ed that proposed yet another regulatory scheme to undo the First Amendment ruling in Citizens United. In that case, the Supreme Court ruled that corporations and unions cannot be prohibited from spending money to speak out about candidates for public office. Corporations sometimes have a lot of money, so the campaign finance lobby believes the ruling was unfair because, as Weintraub repeats, corporations can “drown out” the “voices of citizens” by spending it on speech. In this latest volley, Weintraub argues for an expansive disclosure regime, followed by prohibitions, that would prevent corporations with foreign ownership from enjoying the fruits of Citizens United.
Unions don’t necessarily get a pass from the speech czars, but have a strange tendency to be absent from reformist rhetoric, despite exercising what one can easily call “outsize influence” in elections. Weintraub’s piece is, unfortunately, no exception to this omission, though unions pose the same danger of foreign influence that Weintraub aims to cure. Furthermore, the consequences of her latest proposal would likely hit unions as hard as corporations.
Weintraub argues that although Citizens United freed corporations and unions to speak, the current law that prohibits foreign nationals from spending even a penny to influence American elections may prohibit a corporation from speaking if just one share of its stock is owned by a foreign national. Because a corporation is “an inseparable mix of citizens and noncitizens,” “[the] limits on those individuals’ rights must also flow to the corporation.” She stops short of calling for outright censorship-by-association, but believes it is an important conversation starter that will, perhaps, revive some censorship, like requiring corporations seeking to speak in elections “to verify that the share of their foreign ownership is less than 20 percent, or some other threshold.”
There are myriad problems with Weintraub’s argument. They begin with her ignorance of First Amendment precedent—not simply Citizens United—and extend to other significant details like how publicly traded stock and corporate action actually works. These problems are expertly detailed by Allen Dickerson at the Center for Competitive Politics. Since it’s all but impossible or, at least, too costly for many corporations to take the time to verify the nationalities behind their ownership, it is almost guaranteed that Weintraub’s proposal, viewed in the kindest light, is but a reversal of Citizens United. Even if it was feasible for a publicly held corporation to verify its ownership at a given point in time, I suspect Weintraub’s audit would likely be perpetual, forcing corporations to assess their ownership on a daily basis if they engage in political speech. This would lead to a censorship tactic first noted by Steve Hoersting on the Election Law Listserv: political activists steering foreign purchases of corporate stock to shut up a corporation with which they disagree. (This is a rather ironic twist on a proposal that ostensibly aims to curb foreign influence on American politics.)
Weintraub’s argument applies just as forcefully, if not more so, to unions. Unions’ political speech is at least as representative of their members—I would argue much more—than corporations’ of their stockholders. There is plenty of evidence to show illegal immigrants are members of American unions and that their dues are used to pay for political speech. Just months after Citizens United, in the the Washington Post, Marc Thiessen went several rounds with the Service Employees International Union, concluding that they have little interest in providing a full account of foreign money within their political spending. (The SEIU still cleverly dodges this on its own website.) As Think Progress reported last year, “with a receding membership in recent times, unions are aggressively targeting the 22 million immigrant workers in the country, regardless of legal status, to join their ranks” (emphasis added).
Some unions are certainly representing the voices of these members. The AFL-CIO, among others, is a staunch supporter of immigration reform, and applauded President Obama’s controversial executive orders that granted amnesty to up to 5 million illegal immigrants. This does not speak to the merits of immigration reform, but it is perhaps the most contentious issue in American politics that would be of most direct interest to illegal immigrants, who are undoubtedly foreign nationals for purposes of campaign finance law. If there is any sign that organizations are, as Weintraub ominously notes, “being used as a front to allow foreign money to seep into our elections,” unions are the first place to look.
As with corporations, unions would face very burdensome requirements if Weintraub were to make uniform use of her argument. Unions would likely have to choose between implementing an E-Verify system for their members, engaging in politics solely through their own political committees (a distinction overturned in Citizens United), or not engaging in political speech. This would introduce new First Amendment issues, some of which may affect unions in ways that they could seek protection under NAACP v. Alabama and other precedents. However, these precedents have not fared well for nonprofit corporations and other organizations in recent years, in part thanks to creative legal maneuvering by so-called reformers like Commissioner Weintraub.
Individuals and associations are entitled to free speech regardless of their legal status or formation. Unions, corporations, and even foreign nationals should be able to speak out in American elections, free not just from bans but from burdensome red tape. The alternatives all too easily boil down to suppressing ideas out of fear that Americans might listen to them. Having said that, there are certainly honest disagreements about the rights of speech and association afforded to corporations and unions. But if Commissioner Weintraub is really concerned with fending off foreign money from American politics, she is, at the very least, taking a discriminatory shot at corporations. Her office demands far more integrity.