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The split underscored the unsettled state of the law in the wake of Citizens United. In theory, the ruling dramatically frees employers of all stripes to try to influence their workers’ political action. If Citizens United permits corporations to invest their resources in politics, former FEC press officer Bob Biersack said, then employees might be considered resources that firms can mobilize.
“In theory, now every corporate account is available for really aggressive campaigning,” said Biersack, a senior fellow at the Center for Responsive Politics.
But compliance lawyers warn that FEC regulations have yet to be updated to reflect the Citizens United ruling.
“Technically, the law may provide new freedoms,” said James Kahl, who leads the political law practice at Womble Carlyle Sandridge & Rice. “But regulations have not been rewritten, and people don’t want to violate existing regulations.”
The absence of new FEC rules leaves employers in “kind of a no-man’s-land right now,” added Kahl, the FEC’s former deputy general counsel.
In fact, employers enjoy considerable leeway to predict outcomes to their employees, including an election’s negative effect on a company, Volokh said. The key distinction is between messages that constitute “overtly, a threat of retaliation,” versus a “prediction of dire economic consequences,” he said.
At the same time, federal criminal statutes make it unlawful to “intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose” for candidates up and down the ballot.
And employers who step over the line lose credibility with workers, said Greg Casey, CEO of the Business Industry Political Action Committee. BIPAC is using mobile applications and social networking to help up to 7,000 employers educate their workers on public policy issues this year through its Prosperity Project. Virtually all BIPAC-endorsed candidates are Republicans.
It’s all perfectly legal and, according to Casey, doesn’t amount to a campaign expenditure. He said the employers are not telling people how to vote.
“Intimidation and coercion is not acceptable in the workplace, whether it’s practiced by management or by labor,” Casey said.