On August 14, several hundred coal miners joined Mitt Romney at the Century Mine near Bealsville, Ohio, to cheer the Republican nominee as he denounced a “war on coal” by the Obama administration. Two weeks later, an official of the company that owns the mine, Murray Energy Corp. (which has given more than $900,000 to Republican candidates in the last two years, far more than any other coal company) admitted that the miners were not all there by choice. “Attendance at the Romney event was mandatory,” Rob Moore, the chief financial officer of Murray Energy told radio host David Blomquist. Mandatory, but unpaid. Because the mine was closed for the Romney event, miners lost a day of pay. Is this legal? Is this right? Interestingly, just a few days after the rally, the F.E.C. decided a case involving an employer in Hawaii that required its employees to campaign, on their own time, for Democratic congressional candidate Colleen Hanabusa. (The employer happened to be a union, but the case had to do with its staff, not its members.) In what might seem like a reversal of partisanship, the Commission’s three Democrats supported the general counsel’s judgment that such coercion violated the Federal Election Campaign Act, which forbids employers from coercing workers to contribute to a campaign. But its three Republicans argued that because the work was part of an independent effort by the union, and didn’t involve contributions to the campaign itself, the law didn’t apply: A union or corporation’s “independent use of its paid workforce to campaign for a federal candidate post-Citizen’s United was not contemplated by Congress and, consequently, is not prohibited by either the Act or Commission regulation.” Without a majority on the Commission, it was unable to act.
In the view of the three Republicans on the FEC, then, Citizen’s United means not only that a corporation or union can deploy money in an independent effort to affect the outcome of an election (including money that rightfully belongs to its shareholders), but that it can deploy any other resources it controls—including its employees’ time, both on and off the clock.
Consider that the next time you hear an opponent of campaign finance laws describe the issue as a choice between “freedom” and regulation. In this vision of the world, the unlimited freedom of corporations means that your own rights as a citizen—to participate, or decline to participate, in the political process on your own terms—are surrendered. As the scholar Corey Robin has argued, the greatest threats to our individual liberties come not from anything the federal or state government does, but from these constraints large and small imposed by private-sector employers on their employees. (I emphasize private-sector, because it would be plainly illegal for any public agency to require non-political employees to participate in campaign activities, under state and federal civil service laws, and the same is true of non-profit charities, under tax law.)