Home > Blog > Michael Dorf on Citizens United v. FEC: Swung On and Missed
BLOG
Michael Dorf on Citizens United v. FEC: Swung On and Missed
Published on July 2, 2009
Cornell law professor Michael Dorf took a hack at the upcoming reargument in Citizens United v. FEC on his blog yesterday, but unfortunately, missed the pitch. Professor Dorf attempts to argue that if Austin v. Michigan Chamber of Commerce is overruled, the result would be that the Constitution protected corporate speech but limited labor union speech. Professor Dorf makes some rather elementary errors of first principle, however, and it's worth it to head off this argument in the bud.
Professor Dorf notes that under Abood v. Detroit Board of Education and its progeny, unions must refund that portion of agency fees that non-members are forced to pay to the union, and that are then used for political activity. Baed on this, he argues, "The Constitution itself forbids unions from using dues of non-union members of the bargaining unit for political activity." Given that repeal of Austin would allow corporations to engage in independent political speech, he thinks a strange dichotomy has been created.
That a leading constitutional theorist at a top law school could make such an elementary mistake indicates just how far our society has gone in obliterating the distinctions between private and public, voluntary and involuntary. For as Dorf himself notes, all Abood does is prohibit a union from spending on political activity money extracted involuntarily from non-members pursuant to law, for the purpose of collective bargaining, Overruling Austin would not require anyone to pay money to a corporation. Corporations are voluntary collections of citizens. Dorf's analogy would make sense only if the government required some people to invest involuntarily in certain corporations.
Of course, sometimes restrictions on corporate giving are portrayed as a way to protect shareholder wealth from management. But this is an issue for corporate governance, not campaign finance. For example, we do not have blanket prohibitions on corporations spending money to support the symphony, or United Way, or doing other things intended to enhance the corporation's bottom line by enhancing its image. We do not have a blanket limit on corporations running ads discouraging the use of their own product, as alcohol and cigarette manufacturers are prone to do. If we believe that corporate managers are seriously abusing shareholders by spending money on politics that does not benefit the corporation (note that this argument directly conflicts with the usual argument of "reformers," which is that corporate political activity should be limited because it does benefit the corporation) then this is a question for corporate law.
In fact, given that Austin also provides the constitutional underpinning for the corresponding prohibition on union political activity, overruling Austin would actually eliminate limits on union speech, granting it full protection of the law. Unions will be free to spend and spend member dues on political activities. How cool is that? What they won't be able to do is spend agency fees that the law allows them to collect, more or less like taxes, from people who don't want to join the union.
It would be a strange world, indeed, that suggested that the Constitution must protect the right of corporations or unions to extract involuntary dues or investments and then spend them on political activity. Prof. Dorf says that if Austin is overruled while Abood stands, it will be "hard to take those rules seriously." Only, however, if one no longer recognizes the difference between voluntary organizations and involuntary association imposed by the state.
TrackBack URL for this entry:
http://www.campaignfreedom.org/blog/trackback/michael-dorf-on-citizens-united-v-fec-swung-on-and-missed
Login or Sign-Up to Comment
