THE BLOG
05/01/2010 05:12 am ET Updated May 25, 2011

Businesses Can Now Legally Pressure Workers on Political Issues?

Suppose your boss held a meeting at work and told you and your fellow employees, "We need you to vote for John McCain for President because Barack Obama isn't good for us."

1) Say, "What do you mean by 'us'?"
2) Snap to attention, salute smartly, and shout, "Yes Boss!"
3) Say "Isn't this against the law? I want to consult my attorney."
4) Say, "Does this mean that I have to quit canvassing for Obama?"
5) Pull a Norma Rae

While all of these answers are appropriate, depending on your perspective (we especially like #1 and #5), #3 is problematic. That is because it is one of the most overlooked, but highly possible results of the Citizens United decision that overturned the federal law restricting corporate expenditures on political campaigns.

The court ruled that corporations can use their unmatched wealth to overwhelm other participants in public debate and make elected officials even more indebted to big business than they already are.

But another problem has gone largely unnoticed. Employers can also use their financial power to pressure employees vote the way the company wants. This is already standard practice in union organizing campaigns. Employers hold a "captive audience" meeting which workers are required to attend. At this meeting, the company presents a stew of well-polished anti-union arguments and threatens (subtly or not) to close the company if the workers vote for the union. The union is not allowed to attend and has no comparable ability to tell workers the other side. Management closely monitors who speaks, who asks questions, and who exhibits pro-union sensibilities for later retribution.

This tactic is extremely effective. Even though workers in unionized companies make more money, have better benefits, and are protected from arbitrary termination, in about half of the elections the majority of workers vote against having a union. What makes this even more "impressive" is that before the election is held, in most instances a majority of employees have signed cards expressing a desire for a union. Sadly, the National Labor Relations Act permits this abuse.

This tactic is rarely used by employers on political issues. It's not because they don't want to. Employers are much better off when pro-business candidates (usually Republicans) win elections. Getting rank and file workers, a majority of who usually vote Democratic, to change their vote would change the outcome of a great many elections. They wouldn't have to convince [that] many workers since most elections are decided by a narrow margin of 10% or less. Winning by 51% to 49% is common. With elections so close, it doesn't take much to change the outcome.

The reason employers haven't been ramming their political views down workers' throats is that they weren't sure it was legal. There isn't any law against it. But corporate lawyers are extremely risk averse and want to avoid litigation. If they give the green light to action that ends up in court, the company will probably get another lawyer. Better to play it safe. Only rogue employers like Wal-Mart are famous for forcing their political views on workers, but the Citizens United case may change that. The court has announced with trumpets blaring that corporations have free speech rights just like real people and they will nullify any law that restricts corporate advocacy.

And if corporations are real people, they're salivating. Their attorneys may well tell employers that they can force workers to attend meetings and subject them to the same spiel of half-truths and threats that they use to fight unions. What's worse, it will be even more effective. Federal law protects a worker who speaks up in favor of a union once the meeting is over. It's a violation of the National Labor Relations Act to fire someone for advocating a union. This is existing law, even though the penalties are peanuts, and they come years later so they don't stop workers from getting fired every day.

However there is no law preventing employers from firing workers who oppose the bosses' political views. The First Amendment guarantees that the government cannot deprive a person of freedom of speech; it doesn't stop a private employer from violating workers' rights. Even refusing to hire someone because of their race wasn't illegal until Congress said so in 1964. That was after the watershed 1964 election, and was hard fought even then.

But this is 2010, and Congress has not passed a law preventing employers from firing workers because of their political views. Only five state legislatures have passed such legislation. This means that in 45 states employers can legally fire workers who don't give answer #2. This authority makes employers' ability to change workers' votes even greater than in a union election.

Congress is currently working on legislation to address problems caused by the Citizens United decision. It's critical that the legislation not only restores campaign finance reform but also prohibit employers from attempting to dictate the political views of their employees. The power that employers already have over their employees has been drastically expanded by Justices Alito, Kennedy and their allies on the Supreme Court. Congress must restore our rights as citizens not to have our political rights -- or our political choices -- determined by those who employ us. That's what we mean by "us."