Choosing Who You Negotiate With
Most important, public sector unions help choose those they negotiate with. Through gigantic campaign contributions and overall clout, they have enormous influence over who gets elected to bargain with them, especially in state and local races.
(Emphasis supplied.) With regard to corporations that do business with governments, David Brooks has not only not expressed similar concern, he has shown disdain for such concerns.
Indeed, if Brooks REALLY believed what he wrote, he would be a staunch opponent of privatization. Privatization creates even greater risks of creating situations where entities are "choosing those they negotiate with." More . . .
[W]e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. [. . . T]he Court in NRWC did say there is a “sufficient” governmental interest in “ensur[ing] that substantial aggregations of wealth amassed” by corporations would not “be used to incur political debts from legislators who are aided by the contributions.” [. . .] When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption. [. . .] The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt:“Favoritism and influence are not . . . avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.” McConnell , 540 U. S., at 297 (opinion of Kennedy , J.).
Reliance on a “generic favoritism or influence theory . . . is at odds with standard First Amendment analyses because it is unbounded and susceptible to no limiting principle.” Id. , at 296. The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate. See Buckley , supra , at 46. The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials. This is inconsistent with any suggestion that the electorate will refuse “ ‘to take part in democratic governance’ ” because of additional political speech made by a corporation or any other speaker. McConnell , supra , at 144 (quoting Nixon v. Shrink Missouri Government PAC , 528 U. S. 377, 390 (2000) ).
[. . .] Ingratiation and access, in any event, are not corruption. [. . .] Here Congress has created categorical bans on speech that are asymmetrical to preventing quid pro quo corruption.
I imagine Brooks would argue that public sector unions are engaged in quid pro quos with elected officials. But so too are private contractors who contract with the government. If public sector unions raise the specter of undue influence because they negotiate directly with the government, then so to must private contractors.
There is another aspect of this matter that bears consideration- to what degree does a ban on collective bargaining impinge on the First Amendment rights of union members? It is true that it has long been settled law that the right to collectively bargain is not protected by the Constitution. However, that was before Citizens United. After all, before Citizens United, the restrictions overturned in that case were also long held to be constitutional. If one honestly and consistently applied the logic of Citizens United, then a compelling argument can be made that prohibitions against collective bargaining violate the First Amendment.
In a later post, I will explore the strength of such an argument.
Speaking for me only
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