06/27/2012 10:55 am ET Updated Aug 27, 2012

What If the Supreme Court Treated Corporations Like Unions?

In 2010, the right-wing majority of the Supreme Court infamously decided that corporations could spend unlimited amounts of money from their treasuries to influence elections. The Citizens United decision also expanded the spending power of another type of organization: labor unions, which had up until that point been governed by the same Congress-set election rules. But make no mistake: the Corporate Court has a very different agenda for unions than it has for corporate big spenders. In a decision last week, the Court started to chip away at the rights of unions to influence elections while continuing to leave corporations free to spend as they choose.

What happened was this: In 2005, the Service Employees International Union (SEIU) Local 1000 representing public sector workers in California, imposed a temporary dues increase in order to fight anti-worker measures on the state ballot. Because California law makes payment of union dues by both union members and non-members a condition of government employment, the Court applied a First Amendment analysis. Having already issued Supreme Court-mandated notices to members and non-members informing them of their dues and allowing non-members to opt out of those that support strictly political activities that non-members may not agree with, the union failed to issue a second notice regarding the dues increase. Seven of nine justices on the Supreme Court agreed last week that the union should have sent out a second alert about the dues increase.

What's unusual is what the five conservative justices tacked on to the narrow ruling about the dues notice. Rather than deciding whether the situation at hand followed the existing law, they decided to make a brand new law in order to cripple union spending on elections. Without being asked to do so, and in violation of the Court's own rules against deciding "significant constitutional issues not contained in the questions presented, briefed, or argued," the Justices declared that the public sector unions were constitutionally prohibited from enacting such a dues increase on non-members unless those workers affirmatively opt in.

The law as it stands already allows these unions to collect limited dues from non-members who benefit from union-related collective bargaining and other benefits. But it also lets those employees opt out of expenses - like political spending - that don't directly go toward their own paycheck and benefits. This opt-out option only applies to labor unions; shareholders are not afforded a similar right if they disagree with corporate political spending decisions. Even so the Justices, of their own initiative, turned this process on its head to weaken labor even further.

The five right-wing justices justified this over-reach by declaring that the existing opt-out provision for emergency dues increases "substantially impinge[s] upon the First Amendment right of nonmembers."

Interestingly, a very similar situation involving corporate shareholders has been in the news recently, but so far has attracted little interest from the conservative Court. After the Citizens United decision let loose a flood of corporate spending - much of it funneled through shadowy organizations and undisclosed - some corporate shareholders began to be concerned that their money would go to fund political spending that they disagree with. This is no small issue: about half of Americans have investments in publicly traded corporations, often through 401(k)s and other retirement accounts established by federal and state laws. And those corporations - with officers given the authority to spend other people's money - exist only because they are artificial government creations.

The Republican-led Congress has not been receptive, to say the least, to efforts to require that corporations disclose political spending to their shareholders and the public, much less require a shareholder vote on such spending. And the Supreme Court - surprise, surprise - hasn't shown any interest in writing any of those rules into law. Indeed, in Citizens United, the pro-corporate majority dismissed concerns about protecting dissenting shareholders from corporate decisions to spend on controversial political candidates, arguing that shareholders could protect themselves against such spending through the normal processes of corporate democracy. The conservatives had no thought, apparently, of allowing shareholders to opt out of such political activity, much less requiring that their investments not be used unless they opt in.

So what accounts for the difference between a policy requiring employees represented by unions to actively opt in to political spending and a policy allowing corporate shareholders and the public to remain in the dark about the political causes and candidates that their stocks and retirement funds are being spent on, without having the benefit to opt out?

As far as I can tell, there are two main factors that could account for this radically disparate treatment. The first is that the Court majority seeks to create strong corporations with centralized command leadership that goes unquestioned, while it seeks to undermine unions as a countervailing political force. The second is simply that the majority of post-Citizens United corporate money spent on elections goes to benefit Republicans, while the majority of union political funds go to help Democrats.

If the narrow majority of the Corporate Court wants to treat corporate shareholders like public sector union non-members - thereby applying its new "free speech" rights evenly - it will carve out a shareholder opt-in provision in one of its series of decisions opening up corporate pocketbooks in elections.

But I'm not holding my breath.