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.)
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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.
Here, then, is the letter:
January 28, 2009
Dear Mr. Nichols:
Your January 24 blog post, “Unions Can’t Compete With Corporate Campaign Cash,” severely mischaracterizes the AFL-CIO’s views about the Citizens United Supreme Court decision and the brief the AFL-CIO filed in this case, and falsely states that I participated in a conference call about the decision. In fact, the AFL-CIO has spoken out against the Court’s decision and we never asked for such a ruling. We are especially disappointed that such a venerable and pro-labor publication as The Nation would publish such an error-laden attack on the AFL-CIO without any apparent effort to contact the AFL-CIO and ascertain the facts. We request that The Nation post this letter on its website and retract the misstatements in your post.
Attached is the statement that the AFL-CIO released about the Supreme Court’s decision. As it states, we believe that the Court further tilted the playing field in favor of business corporations in public elections, and that by allowing unlimited corporate treasury expenditures that explicitly support or oppose particular candidates, the Court has increased the already excessive influence that corporations exert in the electoral system. The AFL-CIO believes that the Court wrongly treated corporate expenditures the same as union expenditures, and our brief urged that unions be treated more favorably. Unions, unlike businesses, are democratically-controlled, nonprofit membership organizations representing working men and women across the country, and their independent speech should accordingly be given greater protection.
Nonetheless, your piece falsely asserts that the AFL-CIO supported this outcome, and that “the leaders of the labor federation…imagine that, with spending limits removed, organized labor will be able to buy enough television time to reward their political friends and punish their political enemies,” which you ridicule as a “sweet fantasy. ” Your piece identifies no AFL-CIO “leader” or anyone else connected with the AFL-CIO who has actually espoused that position or anything like it. In fact, those are not the AFL-CIO’s views. We are very disappointed that, as far as anyone at the AFL-CIO can determine, you made no attempt to contact the AFL-CIO in order to determine what its reaction to the case actually was before you ascribed and condemned one.
In mischaracterizing the AFL-CIO’s brief in Citizens United, you assert that the 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. 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.
We have taken that position because that prohibition directly interfered with unions’ ability to speak out effectively on legislative matters of urgent concern to the labor movement, and because that prohibition, if upheld, could only lead to expanded such curbs, as in fact subsequently occurred in several states. There is nothing “reasonable” about this prohibition, whose scope is also unacceptably vague following judicial review since its enactment.
It is true that our position in favor of invalidating the broadcast ban would mean that Citizens United’s 90-minute, video-on-demand documentary Hillary: The Movie could not be prohibited merely because it contained caustic content about then- presidential candidate Hillary Clinton, and it was for that reason alone that we said non-profit corporation Citizens United should prevail in this case. We would have taken precisely the same position, of course, had the targeted documentary been, say, Michael Moore’s production company’s Fahrenheit 911, which also “referred” (also quite caustically) to another presidential candidate, George W. Bush. Again, our main point in opposing the prohibition on broadcast ads was to restore the labor movement’s ability to speak out on key legislative and policy issues of importance to working families.
Like many other groups in Citizens United, we also urged the Court not to go further in deciding the case and, specifically, not to reach the Austin issue of whether the First Amendment protects independent “express-advocacy” communications about candidates by businesses and non-profit corporations – because, as we pointed out, the issue was not presented in this case since there was no dispute that Hillary did not contain express advocacy. (Justice Stevens’ dissent explicitly commended our brief on this point.) We also pointed out that no such prohibition could be applied to unions because, unlike business and most non-profit corporations, unions are democratically controlled by members who pay voluntary dues, and Austin had distinguished unions on that basis. (This was not a new position for us: the expenditure ban originates in the union-busting 1947 Taft-Hartley Act, and was used to criminally prosecute labor organizations in the ensuing years.)
Like many Supreme Court cases, Citizens United entailed legal principles, arguments and potential consequences that called for serious engagement, and warranted our support for a particular legal outcome – here, the invalidation of the McCain-Feingold broadcast ban — that in the particular case would produce a perhaps strange-bedfellow victor. Your piece, however, reduced the AFL-CIO’s role in Citizens United to a simplistic and misleading caricature that disserved both The Nation’s readers and the truth. You may disagree with the positions we actually took in this case; certainly, some others do in the progressive and even in the labor community. But we and your readers deserved an article and analysis based on what we actually said and did in the case, and we deserved performance of the reportorial task of contacting the AFL-CIO before the piece appeared.
Finally, you falsely state that I participated in a conference call about the decision, and even assert that on this call I “talk[ed] up the merits of the corporate position” in Citizens United “along with representatives of the conservative Heritage Foundation and Senate Minority Leader Mitch McConnell.” This call was a media briefing hosted by the Center for Competitive Politics (CCP), a nonprofit libertarian think tank that had invited both Democratic and Republican election lawyers to discuss the decision. I initially agreed to participate because the speakers would be politically diverse but later decided not to, and the call proceeded without me.
Your January 24 post links to and relies upon a January 19 CCP announcement of the call for the false assertion about my participation. But on January 21, three days before your piece appeared, CCP posted a summary of the actual call on its website, which, of course, did not mention me (or, by the way, the McConnell lawyer, Floyd Abrams, who did not end up participating either). Obviously, you neither listened to the call nor checked whether or not it had occurred, let alone about what was said on it, before reporting and assailing my – and, so, the AFL-CIO’s – supposed “participati[on]” and comments during the call.
It is also worth pointing out that, had I participated in the call, I would have had a valuable opportunity to explain to media representatives the AFL-CIO’s position on the issues in Citizens United and the Court’s decision as I describe above. That this briefing also would have included commentary from other lawyers, including one from the Heritage Foundation who supported overruling Austin, does not warrant criticism. AFL-CIO and many other progressive lawyers routinely participate in public briefings and programs on panels with conservative lawyers, sometimes sponsored by conservative organizations. For example, the Heritage Foundation and the no less conservative Federalist Society have announced a program at Heritage itself to discuss Citizens United that will feature, among others, the chair of the political law practice at the law firm that represents President Obama and the three national Democratic Party committees, along with, among others, Heritage and Chamber of Commerce lawyers. It seems obvious that he should participate in this likely media-covered event and ensure that his perspective is reflected and reported. Indeed, such events are the legal-commentary versions of the liberal and conservative guest pairings that occur daily in radio and television news and opinion programming.
The AFL-CIO stands up for workers and opposes excessive corporate power every day on many fronts. Perhaps the most notably disturbing feature of the Citizens United decision is its unrestrained enthusiasm for the role that business corporations play in American life. That attitude informs an increasing number of Supreme Court decisions in disparate fields and is a matter of ongoing and acute concern at the AFL-CIO. On campaign finance matters, the AFL-CIO supports a system of regulation that promotes democratic participation in elections by individuals and their associations; protects legitimate independent speech rights; offers public financing to candidates while firmly regulating contributions to them; and guarantees effective disclosure of who is paying for what. The AFL-CIO has consistently espoused and worked for legislation that embodies those principles for a very long time. Our efforts at achieving a more just society do not deserve the erroneous and poorly researched attacks in your piece. We request that this response in full be featured as prominently on The Nation’s website as your article was.
Yours truly,
Laurence E. Gold
Associate General Counsel
AFL-CIO
Here, too, is the AFL-CIO’s statement on the Citizens United ruling:
Today, the Supreme Court further tilted the playing field in favor of business corporations in public elections. By allowing unlimited corporate treasury expenditures that explicitly support or oppose particular candidates, the Court has increased the already excessive influence that corporations exert in our electoral system.
And we believe the Court wrongly treated corporate expenditures the same as union expenditures, contrary to the arguments we made in our brief in this case.
Unions, unlike businesses, are democratically-controlled, nonprofit membership organizations representing working men and women across the country, and their independent speech should accordingly be given greater protection.
The AFL-CIO supports a system of campaign finance regulation that promotes democratic participation in elections by individuals and their associations; protects legitimate independent speech rights; offers public financing to candidates while firmly regulating contributions to them; and guarantees effective disclosure of who is paying for what.
