Citizens, United and Citizens United: The Future of Labor Speech Rights?

Charlotte Garden

What will Citizens United v. Federal Election Commission 1 mean for labor unions?  There are at least two ways to answer that question:  first, in terms of its effect on election spending by labor unions; and second, in terms of its precedential value in future cases regarding the scope of labor unions’ First Amendment rights.  Although labor unions have little cause for optimism regarding the first answer, the second contains some promise—a potential silver lining—for labor unions.  That is to say, it is doubtful that Citizens United will do anything except widen the gulf between corporate and union spending in elections.  However, the decision’s robust articulation of corporate and union First Amendment rights has the potential to undermine other limitations on what unions may say, how they may say it, and how they may fund their political speech.

Oddly, Citizens United hardly mentions unions. It dealt with a small, conservative nonprofit corporation that sought to distribute via video-on-demand a documentary criticizing Hillary Clinton.   The organization would have been free to proceed with its plan but for the dual facts that it had received a small amount of corporate funding, and it sought to distribute the video within sixty days of the 2008 presidential elections; these factors, taken together, were sufficient to bring it under the Bipartisan Campaign Reform Act’s (BCRA) prohibition on certain corporate and union electioneering.  The same prohibition would have applied had Citizens United been a liberal advocacy group that had received partial funding from the Service Employees International Union (SEIU), and the decision is applicable to electioneering by unions as well as by corporations.

Citizens United is first and foremost a case about the First Amendment rights of corporations, and the archetypal corporation is a profit-seeking enterprise.  Nonetheless, the Court spent a great deal of time talking about the rights of non-profit advocacy organizations like the Sierra Club, the National Rifle Association, and the American Civil Liberties Union.  Like Citizens United, these associations were affected by BCRA because they accepted funding from corporations and unions.  Also like Citizens United—and unlike for-profit corporations—they exist primarily to engage in advocacy.

The distinction between corporations created primarily to engage in advocacy—though in part with contributions from corporations and unions—and corporations created primarily to make a profit might have propelled the Court’s analysis, resulting in a relatively narrow decision.  Notably, that approach had precedent in an earlier case, FEC v. Massachusetts Citizens for Life (MCFL), in which the Court struck down restrictions on electioneering speech by pure advocacy organizations that accepted no money from unions or corporations.2 However, rather than extending MCFL to cover organizations that, like Citizens United, received only a small amount of corporate funding, the Court reversed the course it set in MCFL and held that an organization’s purpose—whether to engage in advocacy or to make money—is irrelevant to the First Amendment analysis.

In addition to holding that Citizens United’s organizational mission had no bearing on the outcome of its case, the Court also deemed the fact that BCRA allowed corporations to fund political speech through political action committees (PAC) insufficient to save BCRA.  The Court reasoned that creating a PAC and then complying with the various funding and reporting requirements to which PACs are subject were significant hurdles that impermissibly burdened speech.  Additionally, the Court easily dismissed the constitutional relevance of one seemingly important benefit of the PAC requirement:  that it allowed shareholders to avoid having their money spent on electioneering with which they disagreed.  Instead, the Court left dissenting shareholders two options: they could sell their shares; or they could attempt to harness the power of corporate democracy to stop the undesired electioneering.

With that, the Court freed unions and corporations from the challenged provisions of BCRA, and unions and corporations began using their newfound First Amendment rights to engage in previously prohibited election-related speech.  The mileage that each will gain from Citizens United is an empirical question.  However, there are reasons to anticipate that corporations’ gains in this area will outstrip those of unions.  For example, many unions already had in place PACs and mechanisms for complying with other aspects of election law; even newly created unions are likely to be affiliated with a parent union or federation that can help in this regard.  Perhaps more importantly, though, for-profit corporations, in the aggregate, are likely to have more money with which to engage in electioneering than do unions.  And, while Citizens United also opened up less expensive ways for unions to reach voters, such as canvassing non-union households, it seems doubtful that unions will be able to level the playing field by knocking on doors.  Finally, unions—but not corporations—are subject to additional use and reporting limitations, including requirements designed to ensure that dues and fees obtained from union-represented workers are not used for political advocacy over those workers’ objections.  Whether Citizens United undermines the constitutional justifications for these limits is discussed below.

Thus, it is doubtful at best that Citizens United’s direct effects on unions’ election-related speech will result in a net increase in unions’ influence, at least not relative to that of corporations.  One might be inclined to conclude that Citizens United is a loss for unions.  However, there remains the possibility that Citizens United’s broad articulation of First Amendment principles may expand unions’ speech rights outside the context of federal political elections.  Specifically, there are two main areas in which Citizens United stands in tension with current First Amendment doctrine governing unions:  first, statutory limits on unions’ rights to engage in certain forms of picketing and boycotting; and second, statutory and court-made restrictions on how unions may use dues and fees collected from represented workers to fund political advocacy.

The Court has previously upheld statutory limits on union picketing, boycotting, and striking against First Amendment challenges, even as it has held that similar activity is entitled to significantly more robust protection when engaged in by other types of advocacy groups.  For example, the Court has consistently rejected First Amendment challenges to the National Labor Relation Act’s (NLRA) prohibition on union secondary picketing.3  Secondary picketing seeks to draw a third party—the secondary target—into a labor dispute in order to put additional pressure on the real target of the dispute. For example, the NLRA ban on secondary picketing means that a union in the midst of a labor dispute with a wholesaler may not picket in support of a total consumer boycott of retailers that sell the wholesaler’s products. Secondary picketing is prohibited because of its potential to expand the disruption of a labor dispute. For example, a retailer in the above example might have significant leverage with the wholesaler, which it might bring to bear even though it is indifferent to the outcome of the labor dispute, or even actively opposed to the union’s goals.] In contrast, the Court has held that the First Amendment bars the imposition of civil liability on civil rights protestors who have engaged in similar conduct.4

Although the Court’s explanation for this seeming disparity in treatment has shifted over time, its most recent and consistent explanation is based on its perception that labor picketers have a different—and less important—purpose than do civil rights picketers.  Specifically, the Court regards much union picketing as essentially economic, in that it is aimed at procuring monetary benefits for workers.  In contrast, the Court considers other types of picketing to be aimed at more genuinely public purposes.  This view is perhaps most readily apparent in the case of civil rights picketing aimed at securing political and social equality, but the Court views even the Westboro Baptist Church’s picketing of military funerals as addressing “matters of public import.”5

The Court has been similarly hostile to assertions that the First Amendment should protect strikes, including strikes that have an expressive or political component.  Take, for example, the case of a group of Washington, D.C. lawyers who decided to stop accepting new appointments.6 The lawyers sought to make it politically feasible for the D.C. City Council to raise the rate of compensation for indigent criminal defense work, and their message focused in part on the public’s interest in better legal representation—a public interest reinforced by the Sixth Amendment’s guarantee of counsel.  Nonetheless, the Court deemed that fact irrelevant, focusing instead on the fact that the lawyers sought economic gain, and rejecting the argument that the First Amendment protected the boycott from antitrust enforcement.

This dispositive focus on whether particular speakers—either unions or non-unionized groups of workers—hope to gain economically as a result of their speech and other expressive activity appears to be flatly inconsistent with Citizens United’s reasoning.  Citizens United held conclusively that a speaker’s desire to make money is irrelevant to how robustly the First Amendment protects his, her, or its speech—even though Justice Stevens, in dissent, pointed out that publicly held corporations are bound by law to participate in the political process with the goal of improving their own bottom line.  Thus, post-Citizens United, the Court should assess unions’ invocations of the First Amendment without regard to what unions hope to gain from their speech—instead, if the NAACP’s speech would be protected in a particular circumstance, the SEIU’s speech should receive the same protection.  This does not mean that the Court could not limit unions’ rights to strike, boycott, and picket for other reasons, such as the potential disruptiveness of that behavior.  Rather, it means only that cases differentiating unions from other speakers based on unions’ economic goals must be reevaluated in light of Citizens United.

A second body of law that Citizens United has the potential to change significantly is that governing how unions must treat dues and fees paid by represented workers who object either to union membership generally, or to funding union political advocacy.  That issue encompasses two related questions:  first, whether objecting workers may ever be required to join a union or pay union dues as a condition of employment; and second, even assuming workers must pay for some aspects of union representation, whether they are entitled to exemption from funding union political speech.

As to those objecting employees, the Court has struck a compromise.  In order to prevent employees from freeriding on their dues-paying colleagues, objectors can be required to pay for certain core union activities like bargaining and representing employees in grievance proceedings.  However, objectors cannot be required to pay for other union activities, including political speech and new organizing.  To enforce that boundary, the Court has imposed a set of relatively onerous requirements on unions who want to both collect the fee for representational activities and also engage in political speech using dues paid by non-objecting members.7 And recently, the Court concluded that those procedures are merely a floor, leaving states free to impose greater requirements on unions representing public employees if they so choose.8

For some employees—public-sector employees and those covered by the Railway Labor Act—this compromise is a matter of constitutional law, meaning that the Court has concluded that compelling these workers to fund union political speech would violate their First Amendment rights.9 By contrast, for private-sector employees covered by the NLRA, the Court has imposed the same scheme as a matter of statutory construction.10 In both instances, though, the Court balanced the objectors’ rights—conferred either by the First Amendment or the NLRA—against the ways in which requiring employees to pay union dues and fees promoted the government’s compelling interest in labor peace.  Notably, though, the Court did not consider unions’ First Amendment rights to engage in political speech with minimal encumbrance.

The Citizens United Court’s approach to the rights of dissenting shareholders differs dramatically from its approach in the analogous union context.  Specifically, Citizens United weighed the First Amendment rights of corporations to engage in political speech against the rights of their shareholders to avoid funding that speech without having to sell their stock or prevail in the corporate election arena.  Further, the Court deemed the requirement that corporations create a PAC to engage in political speech to be a significant encumbrance on corporate First Amendment rights.  Importing these principles into the union context means that, at minimum, unions’ rights to engage in the political process must be part of the calculus, to be weighed against dissenters’ First Amendment or statutory rights.  Additionally, courts must consider whether administrative and accounting requirements designed to protect dissenters are themselves excessive burdens on unions’ First Amendment rights.  This new analysis of objectors’ rights has the potential to lessen the requirements imposed on unions who collect the “fair share fee” from objectors while engaging in political speech.

Of course it is not at all clear that the Court will apply Citizens United to labor unions as robustly as that opinion’s language suggests it should be applied.  First, the Court could say in a future case that Citizens United was never intended to apply outside of the campaign finance context.  Second, the Court could simply conclude that labor law as it stands now is narrowly tailored to achieve the compelling state interest of protecting commerce.  However, it is hard to take seriously the idea that some union speech—such as picketing in support of a consumer boycott—is genuinely likely to have a significant effect on American economic stability, particularly given private-sector unions’ modern day weakness.

Citizens United is far from a panacea for unions, but it has potential to prompt courts to confront the artificial distinction that the Supreme Court has drawn between unions and other types of associations engaged in advocacy.  Even if Citizens United is likely to mean little in terms of unions’ abilities to meaningfully counter corporate electioneering, it could prompt an expansion of unions’ First Amendment rights in other contexts.  Thus, Citizens United’s sweeping language and approach to the First Amendment may yet prove to contain a silver lining for unions.


Charlotte Garden is an Assistant Professor at Seattle University School of Law.

A version of this article appeared in the October 2011 issue of the William and Mary Law Review: Charlotte Garden, Citizens, United and Citizens United: The Future of Labor and Speech Rights? 53 WM. & MARY L. REV. 1 (2011).

Copyright © 2011 William and Mary Law Review.

  1. 130 S. Ct. 876 (2010).
  2. 479 U.S. 238 (1986).
  3. See, e.g., Int’l Longshoremen’s Ass’n v. Allied Int’l, Inc., 456 U.S. 212 (1982).
  4. NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).
  5. Snyder v. Phelps, 131 S. Ct. 1207 (2011).
  6. FTC v. Superior Court Trial Ass’n, 493 U.S. 411 (1990).
  7. E.g., Chi. Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292 (1986).
  8. Davenport v. Wash. Educ. Ass’n, 551 U.S. 177 (2007).
  9. E.g., Ellis v. Bhd. Of Ry., Airline & S.S. Clerks, 466 U.S. 435 (1984).
  10. Commc’n Workers v. Beck, 487 U.S. 735 (1988).

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