Citizens United And Political Solidarity Strikes

Jay Ackroyd writes:

I think some people need to be reminded that many tactics in support of the public workers unions in Wisconsin are illegal under the Taft-Hartley Act:

The Taft–Hartley Act prohibited jurisdictional strikes, wildcat strikes, solidarity or political strikes, secondary boycotts, secondary or "common situs" picketing, closed shops, and monetary donations by unions to federal political campaigns.

In Citizens United, the Supreme Court implicitly struck down the Taft-Hartley Act's prohibitions against certain political expenditures. Would the logic of Citizens United extend to Taft-Hartley's prohibition against political solidarity strikes? The Citizens United court wrote:

[P]olitical speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are “subject to strict scrutiny,” which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” [cite omitted] While it might be maintained that political speech simply cannot be banned or restricted as a categorical matter, see Simon & Schuster, 502 U. S., at 124 (KENNEDY, J., concurring in judgment), the quoted language from WRTL provides a sufficient framework for protecting the relevant First Amendment interests in this case. [. . .] Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. [. . .] As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.

Does the Taft-Hartley Act's prohibition on political solidarity strikes withstand this level of review? If Citizens United's logic is applied consistently, the answer appears to be clearly No. The prohibition against political solidarity strikes is a"[s]peech restriction[] based on the identity of the speaker." What makes it different from an expenditure restriction?

Ironically (and more than a bit nonsensically), political strikes against the government might survive this scrutiny. The Citizens United Court stated that:

The Court has upheld a narrow class of speech restric-tions that operate to the disadvantage of certain persons, but these rulings were based on an interest in allowing governmental entities to perform their functions. See, e.g., Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 683 (1986) (protecting the “function of public school education”); Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U. S. 119, 129 (1977) (furthering “the legitimate penological objectives of the corrections system” (internal quotation marks omitted)); Parker v. Levy, 417 U. S. 733, 759 (1974) (ensuring “the capacity of the Government to discharge its [military] responsibilities” (internal quotation marks omitted)); Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 557 (1973) (“[F]ederal service should depend upon meritorious performance rather than political service”). The corporate independent expenditures at issue in this case, however, would not interfere with governmental functions, so these cases are inapposite.

Jones v. North Carolina Prisoners Labor Unions, Inc. involved unionizing activities by prisoners, so perhaps not quite on point here. The other cases cited by the Citizens United also offered fairly unique governmental interests (education and military.) The citation to the Civil Service Commission case is rather ironic as it cuts strongly against the Citizens United court's principal argument - that the government's interest in having its actions compromised by "political service" is not sufficient to restrict First Amendment rights. In Civil Service Commission v. Letter Carriers, the Court stated that:

We unhesitatingly reaffirm the Mitchell holding that Congress had, and has, the power to prevent Mr. Poole and others like him from holding a party office, working at the polls, and acting as party paymaster for other party workers. An Act of Congress going no farther would, in our view, unquestionably be valid. So would it be if, in plain and understandable language, the statute forbade activities such as organizing a political party or club; actively participating in fund-raising activities for a partisan candidate or political party; becoming a partisan candidate for, or campaigning for, an elective public office; actively managing the campaign of a partisan candidate for public office; initiating or circulating a partisan nominating petition or soliciting votes for a partisan candidate for public office; or serving as a delegate, alternate or proxy to a political party convention. Our judgment is that neither the First Amendment nor any other provision of the Constitution invalidates a law barring this kind of partisan political conduct by federal employees.

Frankly, this case is hard to reconcile with Citizens United. The only way to do so it to carve out an exception allowing restricting the speech of persons or entities with a direct relationship with government - employees and contractors and the like.

In this fashion, Taft-Hartley's prohibition against political solidarity strikes could be applied to public sector unions. But it seems that the logic of Citizens United would require that the ban against political solidarity strikes should not apply to private sector unions, unless such strikes affected entities with direct relations with governments.

In any event, Citizens United opens a bevy of question regarding a number of free speech issues. As I have stated earlier, my belief is that the Court simply did not think about the Pandora's Box it has opened.

Speaking for me only

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    Great posts and comments, but.... (5.00 / 1) (#5)
    by Key on Sat Feb 26, 2011 at 01:29:51 PM EST
    All of this is moot unless it gets tested.  And unfortunately, too many of us are too comfortable to actually put stuff on the line....

    Just curious (4.00 / 1) (#1)
    by Peter G on Sat Feb 26, 2011 at 11:15:21 AM EST
    I thought the current political attacks by governors on public sector unions was made possible by the Supreme Court's Tenth Amendment analysis that state government workers are not protected by federal labor laws.  (Am I right about that?)  If so, then how can Taft-Hartley (a federal labor law) apply to restrict their concerted activities?  (Warning:  I have attempted no research before posing this question, so I readily concede it could be a stupid one.)

    A great question (5.00 / 1) (#2)
    by Big Tent Democrat on Sat Feb 26, 2011 at 11:36:16 AM EST
    And indeed, in the American Communication Association v. Douds case, the Supreme Court buttressed its decision to permit a ban on political strikes by stating that Taft Hartley presented a tradeoff for unions:

       [T]he relative significance and complexity of the problem of political strikes and how to deal with their leaders becomes at once apparent. It must be remembered that § 9(h) is not an isolated statute dealing with a subject divorced from the problems of labor peace generally. It is a part of some very complex machinery set up by the Federal Government for the purpose of encouraging the peaceful settlement of labor disputes. Under the statutory scheme, unions which become collective bargaining representatives for groups of employees often represent not only members of the union, but nonunion workers or members of other unions as well. Because of the necessity to have strong unions to bargain on equal terms with strong employers, individual employees are required by law to sacrifice rights which, in some cases, are valuable to them. See J. I. Case Co. v. Labor Board, 321 U.S. 332  (1944). The loss of individual rights for the greater benefit of the group results in a tremendous increase in the power of the representative of the group -- the union. But power is never without responsibility. And when authority derives in part from Government's thumb on the scales, the exercise of that lower by private persons becomes closely akin, in some respects, to its exercise by Government itself. See Graham v. Brotherhood of Locomotive Firemen, 338 U.S. 232 (1949); Steele v. Louisville & N. R. Co., 323 U.S. 192 (1944); Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210 (1944); Wallace Corp. v. Labor Board, 323 U.S. 248, 255 (1944); Railway Mail Association v. Corsi, 326 U.S. 88, 94 (1945).

        We do not suggest that labor unions which utilize the facilities of the National Labor Relations Board become Government agencies or may be regulated as such. But it is plain that, when Congress clothes the bargaining representative "with powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents," [n15] the public interest in the good faith exercise of that power is very great.

    All well and good, BTD, but (2.00 / 1) (#3)
    by scribe on Sat Feb 26, 2011 at 12:59:58 PM EST
    this is the Roberts/Business Court we are talking about, and there is no way anything favorable to unions or union power will get a thumbs-up from the Citizens United majority.  Intellectual honesty and intellectual consistency are the first things would-be Republicans discard, when keeping them would impair the party's agenda.

    I know you know this, but engaging in the kind of intellectual discourse which would, in a world of intellectually honest and consistent judges be both appropriate and proper, is in the world we live in a waste of time and effort, quaint and outmoded.


    I don't disagree (4.00 / 1) (#4)
    by Big Tent Democrat on Sat Feb 26, 2011 at 01:08:34 PM EST
    But I think this exercise is helpful in explaining why that is so.

    A strike has a definition by law (none / 0) (#6)
    by Towanda on Sat Feb 26, 2011 at 04:42:22 PM EST
    and no one has called such a strike in Wisconsin.  No one.  There is talk of a general strike by the Madison area labor council, but following the process of a series of votes (the first vote so far has been unanimous) prior to a strike declaration.

    As for a secondary boycott, yes, there are lots of websites calling for boycots of Walker's many big corporate donors.  And you can bet that many of us in other states but near the border are participating, too.  We know now where to shop and which chain stores to avoid, which products to purchase and which manufacturers' products to avoid.

    Per Key's comment:  So, sue us!

    (But I can just see Walker's minions shutting down the boycott websites one way or another, so I'm going to go screen-capture the long list of stores and products to boycott.  Thanks for the heads-up!)

    Question (5.00 / 1) (#7)
    by gyrfalcon on Sat Feb 26, 2011 at 05:46:37 PM EST
    Do any of these companies do business outside Wisconsin?  I think a lot of us would be happy to stay away from them, and let them know why.

    Could you maybe post a link or two?


    Oh, yes -- major companies (none / 0) (#8)
    by Towanda on Sat Feb 26, 2011 at 07:59:43 PM EST
    if ya like yer cheese, brats, etc., from Wisconsin (Sargento cheese and Johnsonville bratwurst, dogs, etc., are among major contributors).  Plus major chain stores in Wisconsin have stores elsewhere, too (you will not be surprised to know that WalMart and Sam's Club were major contributors, while Costco treats its employees well -- and gives to Dems in a major way).

    Some of the sites are here and here.  Or if this post violates site rules and comes down, google key words such as boycott, walker, contributors, etc. Several sites also have phone numbers and/or url's to let the companies know why you no longer are patronizing their products, stores, etc.


    The site rules don't cover (5.00 / 1) (#10)
    by Harry Saxon on Sat Feb 26, 2011 at 09:03:26 PM EST
    mentioning brands, just promoting them :-)

    I am really missing the contributions (5.00 / 1) (#9)
    by Peter G on Sat Feb 26, 2011 at 08:03:51 PM EST
    of "Cream City" just now -- our resident historian of radical Wisconsin history, and always an acute and well-informed observer of current events in the Midwest.  After a long and very active run, she seems to have dropped out of the TL community of commenters.

    Me too, Peter... (5.00 / 2) (#11)
    by Anne on Sat Feb 26, 2011 at 10:06:37 PM EST
    while I've been quite interested in Towanda's comments, I've found myself looking for Cream City in all of this, and wishing she were here.

    On a side note, I think it's pretty telling that apparently none of the Sunday talking-head shows will feature the point of view of labor - not that I even watch them anymore, but lots of people do, and I think it's awful that all people are going to hear is one side of the story.


    Then watch this (none / 0) (#12)
    by Towanda on Sun Feb 27, 2011 at 12:10:58 AM EST
    from Wisconsin friends, and don't watch Walker.  

    They are Wisconsin.  Walker is not, as a Wisconsinite wrote in this wonderful piece:

    I'm a birther.

    That's right - I don't believe the absurd claims of the National Governor's Association that Scott Walker was born in my home state of Wisconsin. If he was, produce the birth certificate!

    But I guarantee you they never will. You see, the evidence conclusively shows that Walker was born far away from Wisconsin, in Colorado Springs, Colorado -- where his non-Wisconsinite father moved the family after finishing seminary. . . . Walker eventually moved to Wisconsin where he graduated from the public school system and attended Marquette University for a time. (Perhaps unable to meet the standards we Wisconsinites set for ourselves, Walker later dropped out.)  I mention all this because Scott doesn't seem to know anything about the state to which he immigrated. . . .

    Even we Illinoisans (none / 0) (#13)
    by Towanda on Sun Feb 27, 2011 at 12:13:57 AM EST
    are Wisconsinites now.  Even Bears fans.  We had thousands at a rally in Chicago today for Wisconsin, especially in support of the Wisconsin 14 Dem state senators still in political exile with us here.  Dick Durbin was with us to speak in support of Wisconsin.  But my Wisconsin friends tell me that their Dem Senator still has said nothing on all of this.  He is an odd one.

    I saw comments from Cream City at The Widdershins- (5.00 / 2) (#14)
    by jawbone on Sun Feb 27, 2011 at 12:23:37 PM EST
    Thanks (none / 0) (#15)
    by JayAckroyd on Mon Feb 28, 2011 at 12:14:57 PM EST
    Thanks for putting this analysis together. I'm obviously aware of the Citizens United case, and was also struck by this restriction in that context. (As was digby last night when I discussed this issue with her: http://bit.ly/eEoF1S (last fifteen minutes or so. The first part is David Dayen reporting in from WI)

    I too would like to see it tested wrt contributions.

    And I continue to be surprised that this is not being discussed all that much, either in left blogosphere or (less surprising) in Democratic political circles.