Ominous Uncertainty at the FEC, The Sequel

June 8, 2016
posted by Bob Bauer

The Republican Commissioners have now explained why they would not agree to investigate claims that a company pressured employees to make political contributions. Their joint Statement is a skillful piece of work and, on certain of the specific evidentiary issues in this case, it scores a point or two.


These Commissioners understand that they are both disposing of the particular case and making a broader statement about the law, and what comes across in their analysis is the narrowest of readings of the protections against coercion. To them, this is a First Amendment issue—the right of a company to promote employee giving, so long as a) it faithfully includes anti-coercion language as required by law in all written solicitations, and b) applies heavy pressure without explicit threats. The Republican Commissioners have mapped out a path for employers to badger those who work for them into making contributions. Nowhere in their analysis do they display much interest in the First Amendment interests on the other side of this relationship, among the employees– except for this sentence, which makes a lonely appearance at the beginning and appears to have little effect on the balance of the analysis: “The coercion of a person’s political contributions to a [PAC]…is a grave interference of a person’s core constitutional rights.”

At every other turn, the Commissioners make clear that employers with a taste for high-pressure political salesmanship can be reassured —

–That supervisors may solicit those working directly below them;

–That management may keep tabs on and repeatedly solicit those who have not given;

–That anti-coercion rules or principles have no bearing at all on an executive’s “personal” appeals to employees to participate in other, non-PAC fundraising activities for candidates; and

–That management may promote a climate in which employees may “subjectively” experience “pressure,” provided they are not told expressly that they are expected to contribute.

The Commissioners have something here and there to work with: it is true, for example, that the law does not bar repetitive solicitations of the management or executive level of employment. And it does not bar follow-ups with those who have not given. They also know, surely, that employers might abuse these rights in ways threatening to the workforce. Would the Republican Commissioners say that all was well with solicitations repeated on each day of the week prior to the end of the PAC fundraising quarter, with the follow up calls made to the personal residence of the reluctant employee? Is their level of comfort the same if the person making the call is the employee’s day-to-day supervisor who states that the company is concerned about the “poor” response overall to the corporate call for contributions?

The Commissioners believe that a hard appeal like this is legally protected if it is packaged with the written “disclaimer,” emphasizing voluntariness, that the law requires. The employer re-soliciting an employee can say not only that the response to that point has been “poor” but, also, that failure to have a successful PAC could put the company in jeopardy along with “your job”– provided that included with this statement is an attachment with the statutorily mandated anti-coercion language. Any other reading of the law, the Commissioners argue, “would vitiate the right of companies and their (PACs) to solicit the restricted class, or otherwise discuss public policy issues affecting the company.”

This line of argument comes equipped with references to the statute of limitations which these Commissioners believe stands in the way of any action in the case that might have been otherwise taken. Hey, they are saying: nothing to be done about this anyway; and they hasten to say that even if there were no such barrier, they would not pursue further inquiry into the matter. They are content to communicate in in tone and substance little concern for the potential of major problems of coercion in the workplace—and may have increased the prospect that these problems will arise.

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