October 18, 2012
Secunda on Employer Pressure to Vote Republican
Citizen United's generous interpretation of corporate speech means that employers "may now be able to compel their employees to listen to their political views at [workplace] meetings on pain of termination," wrote Paul Secunda, an associate law professor at Marquette University, in the Yale Law Journal. "Although federal law does still prevent employers from issuing explicit or implicit threats against employees who vote for the 'wrong' candidate, short of that, nothing prohibits employers from requiring employees to participate in one-sided political propaganda events."
Employees have little real-life protection from aggressive attempts by employers to sway their votes, Secunda said in a phone interview Thursday.
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"Employers are pretty much able to do what they want as far as putting pressure on employees to vote against a certain candidate," he said.
Secunda said a new "Federal Worker Freedom Act" was needed, to prohibit employers from engaging in mandatory political indoctrination. A new law could comply with Citizen United's broad interpretation of corporate speech, he said.
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Professor Secunda, I believe that your post about employer pressure in elections does not take account of the prospect of a claim under the third clause of 42 U.S.C. 1985(3), which is enforceable in a civil action through 28 U.S.C. 1343. The requirement that "two or more persons" conspire to intimidate employee-voters would, presumably, be satisfied by counting the employer-corporation (which we now know is a person for speech purposes) and its CEO or other official who makes the intimidating statements. I appreciate that the intra-corporate conspiracy doctrine might be troublesome at first blush, but the "fit" here is so appealing that it might be worth a look by you and your students.
Posted by: Jonathan R. Harkavy | Oct 19, 2012 6:09:42 AM
Mr. Harkavy, That is interesting -- but are you implicitly assuming that the "prevent[ing] by force, intimidation, or threat" mentioned in the statute is a threat of discharge for failing to support the boss's preferred candidate or for supporting the boss's non-preferred candidate? If so, the problem would seem to me to be that the "threat" would relate to the boss threatening what he has a lawful right to do -- to discharge for a good reason, a bad reason, or no reason at all. Still, I suppose this is a faciially viable theory if applied in the context of an ER's physical force or threat of violence.
Posted by: Michael Duff | Oct 19, 2012 4:41:30 PM