My January 24 column on the role of the AFL-CIO in the Citizens United v. FEC case highlighted the concerns of some unions regarding the federation’s decision to file an amicus brief in support of Citizens United in its case against the Federal Elections Commission. The piece stirred a tremendous response and a great discussion about the Supreme Court’s removal of limits on corporate campaign spending. In preparing the piece and since its publication, I’ve heard from heads of national unions that are affiliated with the AFL as well as leaders of state and regional labor federations and lots of individual union members. Today, I’ll highlight a very critical response from a top lawyer for the AFL-CIO.
In my initial column, "Unions Can’t Compete With Corporate Campaign Cash," I suggested that the AFL-CIO’s decision to file a brief asking the court to invalidate the McCain-Feingold law’s broadcast ban was unwise. I argued that unions would never be able to compete with corporate spending on the new political landscape opened up by the Supreme Court’s ruling. And I highlighted the concerns of National Nurses United union executive director Rose Ann DeMoro, a member of the AFL-CIO Executive Council who first contacted me about the issue and who declared that, "Equating what unions and working people could spend on campaigns would be like comparing a toy boat to an aircraft carrier."
Here’s a link to the original piece.
To the AFL-CIO’s credit, the piece was posted on its website — even though it was critical of the federation’s position.
But AFL-CIO associate general counsel Laurence E. Gold, an able lawyer for whom I have a great deal of respect, strongly disagreed with my characterization of the federation’s stance and called me out for suggesting that the AFL’s legal team had been keeping company with lawyers for the conservative Heritage Foundation. "In mischaracterizing the AFL-CIO’s brief in Citizens United, you assert that the (federation’s) brief ‘urged removal of reasonable restraints on campaign spending,’ but you fail to tell your readers what ‘restraints’ we opposed or to defend them on their merits, leaving the false impression that we supported invalidating all restrictions on corporate independent expenditures," he writes. "In fact, the AFL-CIO urged the Court, as we have consistently since the McCain-Feingold Law was enacted in 2002, to invalidate on First Amendment grounds that statute’s criminal prohibition against unions, other non-profit groups and (inevitably, the way the law was written) business corporations for broadcasting any messages that ‘refer’ to federal candidates, including incumbent officeholders, in the periods shortly before elections."
Gold and I obviously differ the wisdom of that particular position, and on a number of issues and interpretations regarding the case — although not on the basic premise that unions are and must remain stong players in the American economic and political discourse. I am delighted to report, as Gold notes, that he did not participate in a conference call he had been scheduled to join with a lawyer for the Heritage Foundation. (Veteran lawyers for the Democratic National Committee and the ACLU did go ahead and participate in the conference call.)
Above all, I think that Gold’s letter adds important insight and nuance to our understandings of and debates about the Citizens United ruling — debates that, to my view, are vital to our democracy.