Unions, corporations, and political opt-out rights after citizens united

Columbia Law Review

Volumn 112, Issue 4, 2012, Pages 800-869

  Sachs, Benjamin I ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 84861035798     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (520)

1. See, e.g., United States v. UAW-CIO, 352 U.S. 567, 579 (1957) (noting new campaign finance law "seeks to put labor unions on exactly the same basis, insofar as their financial activities are concerned, as corporations have been on for many years")
2. United States v. CIO, 335 U.S. 106, 114-15 (1948) (discussing "congressional belief that labor unions should ... be put under the same restraints as had been imposed on corporations").
3. War Labor Disputes Act of 1943, Pub. L. No. 78-89, § 9, 57 Stat. 163, 167-68 (repealed 1948).
4. Federal Election Campaign Act of 1971, Pub. L. No. 92-225, § 205, 86 Stat. 3, 10 (codified as amended at 2 U.S.C. § 441b(a) (2006)).
5. See Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, §§ 201, 203, 116 Stat. 81, 88-91 (codified at 2 U.S.C. §§ 434(f)(3)(A), 441b(b)(2)).
6. 130 S. Ct. 876, 913 (2010)
7. see also Samuel Issacharoff, On Political Corruption, 124 Harv. L. Rev. 118, 125 & n.38 (2010) (noting "the Court has now struck down anything categorized as an expenditure limitation"). Although the case before the Court involved a corporation, the holding also renders restrictions on union political expenditures unconstitutional.
8. See, e.g., Citizens United, 130 S. Ct. at 904 (stating "the worth of speech 'does not depend upon the identity of its source, whether corporation, association, union, or individual'" (quoting First Nat'l Bank of Bos. v. Bellotti, 435 U.S. 765 (1978)))
9. id. at 919 (Roberts, C.J., concurring) ("Congress may not prohibit political speech, even if the speaker is a corporation or union."); see also In re Cao, 619 F.3d 410, 431 (5th Cir. 2010) (noting Citizens United "altered the legal landscape with respect to corporations and labor unions, because the Supreme Court held that these entities may make independent campaign expenditures free of Congressional limitations").
10. 494 U.S. 652 (1990).
11. Citizens United, 130 S. Ct. at 903.
12. See id. at 913-16. Citizens United left in place the ban on corporate and union campaign contributions to parties and candidates, and the expenditures it permits must be made independently of candidates and parties. Issacharoff, supra note 5, at 125. One federal district court has found the contribution ban unconstitutional under the reasoning of Citizens United. United States v. Danielczyk, 791 F. Supp. 2d 513, 514 (E.D. Va. 2011). As Justice Stevens put it in his separate opinion, "[g]oing forward, corporations and unions will be free to spend as much general treasury money as they wish on ads that support or attack specific candidates ...." Citizens United, 130 S. Ct. at 940 (Stevens, J., concurring in part and dissenting in part).
13. As Part I will discuss, it is the interaction of labor statutes-including the National Labor Relations Act, the Railway Labor Act, and state public employee bargaining laws-and the Constitution that imposes this limitation. 10. 424 U.S. 1 (1976).
14. Citizens United, 130 S. Ct. at 921 (Roberts, C.J., concurring) (citing Buckley, 424 U.S. at 48-49).
15. United States v. UAW-CIO, 352 U.S. 567, 579 (1957) (quoting Hearings on H.R. 804 and H.R. 1483 Before a Subcomm. of the H. Comm. on Labor, 78th Cong. 1 (1943) (statement of Rep. Landis)); see also Adam Winkler, "Other People's Money": Corporations, Agency Costs, and Campaign Finance Law, 92 Geo. L.J. 871, 931 (2004) ("This linkage, treating unions and corporations as equivalent entities ... continues to the present day.").
16. Victor Brudney, Business Corporations and Stockholders' Rights Under the First Amendment, 91 Yale L.J. 235, 268-70 (1981) [hereinafter Brudney, Business Corporations and Stockholders' Rights].
17. Lucian A. Bebchuk & Robert J. Jackson, Jr., Corporate Political Speech: Who Decides?, 124 Harv. L. Rev. 83, 114 (2010)
18. Victor Brudney, Association, Advocacy, and the First Amendment, 4 Wm. & Mary Bill Rts. J. 1, 47-57 (1995) [hereinafter Brudney, Association]
19. Jeremy G. Mallory, Still Other People's Money: Reconciling Citizens United with Abood and Beck, 47 Cal. W. L. Rev. 1, 32 (2010).
20. First Nat'l Bank of Bos. v. Bellotti, 435 U.S. 765, 794 n.34 (1978).
21. As suggested by notes 13-14, several authors, most notably Brudney, have offered some discussion of the question.
22. Because unions and corporations could engage in certain types of political spending with general treasury funds prior to Citizens United-including lobbying and electoral spending in certain states-the asymmetric opt-out rules imposed a disadvantage on unions even before the Court's decision. But Citizens United dramatically increases the potential extent of the problem and makes the asymmetry relevant to federal electoral spending for the first time.
23. See generally John C. Coates IV, Corporate Governance and Corporate Political Activity: What Effect Will Citizens United Have on Shareholder Wealth? 2 (Harvard John M. Olin Ctr. for Law, Econ., & Bus., Discussion Paper No. 684, 2010), available at http://ssrn.com/abstract=1680861 (on file with the Columbia Law Review) ("Citizens United can be expected to increase all kinds of political activity by corporations."). For a discussion of early evidence regarding the impact of Citizens United
24. see Michael M. Franz, The Citizens United Election? Or Same as It Ever Was?, 8 Forum, no. 4, 2010, art. 7, available at http://mediaproject.wesleyan.edu/files/2011/01/Forum_MMF.pdf (on file with the Columbia Law Review).
25. Robert Charles Clark, Corporate Law § 1.2.4, at 22 (1986)
26. Brudney, Business Corporations and Stockholders' Rights, supra note 13, at 268
27. see also Del. Code Ann. tit. 8, § 141 (2011) ("The business and affairs of every corporation organized under this chapter shall be managed by or under the direction of a board of directors, except as may be otherwise provided in this chapter or in its certificate of incorporation.").
28. Bebchuk & Jackson, supra note 14, at 87 (noting when it comes to corporation's political spending decisions there is "no role for shareholders")
29. Brudney, Association, supra note 14, at 56. 21.
30. Bebchuk & Jackson, supra note 14, at 87 & n.10 ("[S]hareholders are generally not able to enact binding resolutions with respect to ordinary business decisions, which currently include corporate decisions to engage in political speech.")
31. see also Brudney, Business Corporations and Stockholders' Rights, supra note 13, at 264 (noting investment "requires [shareholder] to permit the use of his assets to support social views and generate social attitudes that may impinge upon his individual preferences")
32. id. at 239-40 (stating "unless investor approval is obtained, the funds of some investors are being used to support views they do not favor").
33. The Article leaves for another day an exploration of whether the union opt-out rule is justified on its own terms, and focuses instead on whether the asymmetry between union and corporate opt-out rights is justified. As discussed below, the union opt-out rule is based on a judicial conclusion that union political spending is not germane to the broader project of collective bargaining and contract administration.
34. See, e.g., Commc'ns Workers of Am. v. Beck, 487 U.S. 735, 745 (1988) (holding unions may compel contributions for collective-bargaining activities but not political ones)
35. Abood v. Detroit Bd. of Educ., 431 U.S. 209, 235-36 (1977) (same). This conclusion is far from obvious, however, as judicial and scholarly commentators have observed.
36. See, e.g., Reuel E. Schiller, From Group Rights to Individual Liberties: Post-War Labor Law, Liberalism, and the Waning of Union Strength, 20 Berkeley J. Emp. & Lab. L. 1, 43, 67 (1999) (noting mandatory dues supporters' arguments that "'union political activity is wholly germane to a union's work in the realm of collective bargaining, and thus a reasonable means to attaining the union's proper object of advancing the economic interest of the worker'" (quoting J. Albert Woll, Unions in Politics: A Study in Law and the Workers' Needs, 34 S. Cal. L. Rev. 130, 144 (1961))).
37. See infra Part II.A (discussing Supreme Court's union security cases).
38. see also Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality 17-20 (1983) [hereinafter Walzer, Spheres] (developing separation of spheres principle).
39. Brudney, Business Corporations and Stockholders' Rights, supra note 13, at 268.
40. Citizens United v. FEC, 130 S. Ct. 876, 905 (2010).
41. But see FEC v. Mass. Citizens for Life, 479 U.S. 238, 257 (1986) (holding risk inherent in permitting corporate spending on politics was "the prospect that resources amassed in the economic marketplace may be used to provide an unfair advantage in the political marketplace").
42. Relying on the philosophical literature, and Alan Wertheimer's work in particular, the Article specifies and then applies a two-prong test for coercion.
43. See infra Part III.A
44. see also Alan Wertheimer, Coercion 30-48 (1987) [hereinafter Wertheimer, Coercion] (developing two-pronged theory of coercion).
45. See infra Part III.B.
46. Following the Supreme Court's decisions in this area, this section assumes that even if there is no state action and the Constitution does not formally apply to private sector union workers or shareholders, the "constitutional values" of speech and association nonetheless will be relevant. Commc'ns Workers of Am. v. Beck, 487 U.S. 735, 761-62 (1988)
47. see also George Feldman, Unions, Solidarity, and Class: The Limits of Liberal Labor Law, 15 Berkeley J. Emp. & Lab. L. 187, 233 (1994) (noting Beck decision "is not directly based on the First Amendment, but it makes sense only as an example of the Justices' infusing the values they find in the First Amendment into an area that they are nonetheless unwilling to decide is subject to the Constitution")
48. Roger C. Hartley, Constitutional Values and the Adjudication of Taft-Hartley Act Dues Objector Cases, 41 Hastings L.J. 1, 83 (1989) ("[L]abor law ... has statutorily protected constitutional interests of workers by balancing workers' right of free association against other competing legitimate interests [even absent state action]." (citing Clyde W. Summers, Privatization of Personal Freedoms and Enrichment of Democracy: Some Lessons from Labor Law, 1986 U. Ill. L. Rev. 689, 694-702)).
49. See infra Part III.C
50. see also Robert Post, Transparent and Efficient Markets: Compelled Commercial Speech and Coerced Commercial Association in United Foods, Zauderer, and Abood, 40 Val. U. L. Rev. 555, 565 (2006) [hereinafter Post, Transparent and Efficient Markets].
51. See, e.g., Robert Post, Compelled Subsidization of Speech: Johanns v. Livestock Marketing Association, 2005 Sup. Ct. Rev. 195, 221 [hereinafter Post, Compelled Subsidization].
52. Citizens United v. FEC, 130 S. Ct. 876, 897 (2010)
53. see also infra Part IV.A.
54. See Mallory; supra note 14 at 36-38. This Article also discusses the possibility of correcting the asymmetry in opt-out rights by withdrawing the right from employees. See infra note 320 and accompanying text.
55. See, e.g., 2 U.S.C. § 441b(a) (2006) (declaring illegal campaign contributions by unions and "any corporation whatever" in federal elections, primaries, or political conventions)
56. see also Richard L. Hasen, Citizens United and the Illusion of Coherence, 109 Mich. L. Rev. 581, 585-90 (2011) (discussing campaign contribution case law prior to Citizens United).
57. See 2 U.S.C. § 441b(b)(2)(C)
58. FEC v. Nat'l Right to Work Comm., 459 U.S. 197, 201 (1982) ("[Section 441b] permits some participation of unions and corporations in the federal electoral process by allowing them to establish and pay the administrative expenses of 'separate segregated funds,' which may be 'utilized for political purposes.'" (quoting 2 U.S.C. § 441b(b)(2)(C))); Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 401 (1972) ("[A] labor organization [is not prohibited] from making, through the medium of a political fund organized by it, contributions or expenditures in connection with federal elections, so long as the monies expended are in some sense volunteered by those asked to contribute.")
59. see also Winkler, supra note 12, at 930-33 (analyzing Supreme Court treatment of PACs).
60. Pipefitters, 407 U.S. at 414.
61. See, e.g., id. at 413 (articulating these "dual purposes" of Congress's campaign finance laws).
62. United States v. CIO, 335 U.S. 106, 113 (1948) (footnotes omitted).
63. see also Winkler, supra note 12, at 918-26 (discussing legislative history of Tillman Act). 38. 335 U.S. at 115 (footnote omitted).
64. Pipefitters, 407 U.S. at 404 (quoting S. Rep. No. 79-101, at 24 (1945) (statement of Sens. Ball and Ferguson)).
65. The carve-out for political spending by segregated funds emerged originally as a product of judicial construction of the legislative ban on union contributions and expenditures.
66. See generally Pipefitters, 407 U.S. 385. But, in 1971, Congress incorporated the segregated fund exception into the Federal Elections Campaign Act. See 2 U.S.C. § 441b(2)(C) (2006).
67. Citizens United v. FEC, 130 S. Ct. 876, 913 (2010)
68. Issacharoff, supra note 5, at 125 & n.38.
69. Citizens United, 130 S. Ct. at 911
70. see also Hasen, supra note 33, at 595-99 (discussing government's three arguments-antidistortion, anticorruption, and shareholder protection-in support of ban on corporate and union expenditures).
71. Citizens United, 130 S. Ct. at 897.
72. Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 424 (1972).
73. On the wage premium.
74. see David G. Blanchflower & Alex Bryson, What Effect Do Unions Have on Wages Now and Would Freeman and Medoff Be Surprised?, in What Do Unions Do? A Twenty-Year Perspective 79, 84 tbl.4.2 (James T. Bennett & Bruce E. Kaufman eds., 2007)
75. David Card, The Effect of Unions on the Structure of Wages: A Longitudinal Analysis, 64 Econometrica 957, 974 (1996). On the average amount of dues
76. see John W. Budd & In-Gang Na, The Union Membership Wage Premium for Employees Covered by Collective Bargaining Agreements, 18 J. Lab. Econ. 783, 803 (2000).
77. Unions have exclusive bargaining status under the National Labor Relations Act, 29 U.S.C. § 159(a) (2006), the Railway Labor Act, 45 U.S.C. § 152 (2006), and public sector labor laws.
78. See, e.g., Abood v. Detroit Bd. of Educ., 431 U.S. 209, 223-24 (1977) (applying Mich. Comp. Laws § 423.211 (1970))
79. Int'l Ass'n of Machinists v. Street, 367 U.S. 740, 757-58, 760-61 (1961) (applying Railway Labor Act).
80. Mancur Olson used the union context to describe what he called the "logic of collective action": Self-interested individuals have the incentive to free ride by receiving the benefits of group membership without contributing to the group in return. Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups 66-97 (1971). For some critiques of Olson's "logic,"
81. see, for example, Dan M. Kahan, The Logic of Reciprocity: Trust, Collective Action, and Law, 102 Mich. L. Rev. 71 (2003) (developing "logic of reciprocity").
82. Benjamin I. Sachs, Employment Law as Labor Law, 29 Cardozo L. Rev. 2685, 2738-44 (2008) (applying Kahan's theory in workplace setting).
83. See, e.g., Kenneth G. Dau-Schmidt, Union Security Agreements Under the National Labor Relations Act: The Statute, the Constitution, and the Court's Opinion in Beck, 27 Harv. J. on Legis. 51, 57 (1990) (defining and describing union security agreements).
84. Id. at 58.
85. NLRA § 8(a)(3), 29 U.S.C. § 158(a)(3).
86. see, e.g., Dau-Schmidt, supra note 50, at 57-58 (detailing "several forms" of union security agreements).
87. NLRA § 8(a)(3), 29 U.S.C. § 158(a)(3).
88. Id. As the Court put it, "'[m]embership' as a condition of employment is whittled down to its financial core." NLRB v. Gen. Motors Corp., 373 U.S. 734, 742 (1963).
89. Cal. Saw & Knife Works, 320 N.L.R.B. 224, 243 (1995).
90. Commc'ns Workers of Am. v. Beck, 487 U.S. 735, 738 (1987)
91. California Saw, 320 N.L.R.B. at 225.
92. See RLA §§ 1-13, 45 U.S.C. §§ 151-163 (2006)
93. Beck, 487 U.S. at 746 (noting Congress "expressly modeled" RLA § 2(Eleventh) after NLRA § 8(a)(3)).
94. 45 U.S.C. § 152(Eleventh).
95. The Court's jurisprudence in this area involves both public and private sector employers. Given the clear difference between public sector employment and corporate investment-namely, the unquestioned presence of a state actor in the public employment setting-the Article's focus throughout will be on the private sector cases and the private sector rule. Nonetheless, because the public sector cases are necessary to understanding the private sector developments, they are discussed here.
96. 351 U.S. 225 (1956).
97. Id. at 231-32
98. see also RLA § 2(Eleventh), 45 U.S.C. § 152(Eleventh). This Article takes up the question of state action in Part III.B below. As Gillian Metzger has observed, "Hanson's reasoning is hard to square with recent state action cases ...." Gillian E. Metzger, Privatization as Delegation, 103 Colum. L. Rev. 1367, 1468 n.349 (2003).
99. 351 U.S. at 233.
100. Id. at 238.
101. 367 U.S. 740, 749 (1960) ("The record in this case is adequate squarely to present the constitutional questions reserved in Hanson.").
102. See id. at 744 & n.2 (finding "substantial" amount of union dues collected were being used to contribute to political campaigns).
103. Id. at 749.
104. Id. at 760.
105. Id. at 761.
106. The Court's holding on this score has rightly been subject to sustained criticism. In dissent, for example, Justice Frankfurter wrote that "[t]he notion that economic and political concerns are separable is pre-Victorian." Id. at 814 (Frankfurter, J., dissenting);
107. see also David B. Gaebler, Union Political Activity or Collective Bargaining? First Amendment Limitations on the Uses of Union Shop Funds, 14 U.C. Davis L. Rev. 591, 601-02 (1981) ("In many instances, union political activity is integrally related to the pursuit of union representational goals.")
108. Alan Hyde, Economic Labor Law v. Political Labor Relations: Dilemmas for Liberal Legalism, 60 Tex. L. Rev. 1, 33 (1981) ("The myth that politics is distinct from economics is characteristic of Western liberal thought, and contemporary American labor law partakes of this myth." (footnote omitted)). The practical interconnection between union political and economic activity provides grounds to challenge the opt-out rule on its own terms. This Article, however, is not concerned with the validity of the union rule on its own terms, but with the asymmetry in the treatment of the union and corporate contexts. To this extent, the Article takes the union rule as given and asks whether an analogous rule ought to apply to shareholders and corporate political spending.
109. Street, 367 U.S. at 768.
110. See id. at 764 ("One looks in vain for any suggestion that congress also meant in §2, Eleventh to provide the unions with a means for forcing employees, over their objection, to support political causes which they oppose.").
111. Id. at 770.
112. Id. at 765.
113. see also id. at 767-68 (citing legislative history).
114. 431 U.S. 209 (1977).
115. Id. at 222. The Court equated a condition placed on public employment with compulsion to comply with that condition, but this is not an obvious equation.
116. See, e.g., Louis Michael Seidman, The Dale Problem: Property and Speech Under the Regulatory State, 75 U. Chi. L. Rev. 1541, 1589 (2008) ("Just as no one is compelled to buy stock in a corporation, so too, no one is compelled to accept a job from an employer who has agreed to an agency-shop arrangement. Once one accepts the job, certain obligations come with it."). Part III.A explores the idea of compulsion in detail.
117. Abood, 431 U.S. at 222-23. Abood held that even when agency fees are used to defray the costs of collective bargaining and contract administration, employees' First Amendment rights are implicated.
118. Id. at 222. But, in line with Hanson and Street, Abood rejected the employees' First Amendment challenge to the economic use of agency fees.
119. Id. at 223.
120. See Robert Post, Transparent and Efficient Markets, supra note 29, at 565 ("The mandated union dues at issue in Abood thus threatened two distinct First Amendment rights: freedom of speech and freedom of association.").
121. 466 U.S. 435, 447-48, 455-57 (1984). As the Court would later hold, Ellis "made it clear that the principles of Abood apply equally to employees in the private sector." Keller v. State Bar of Cal., 496 U.S. 1, 10 (1989).
122. Ellis, 466 U.S. at 444-45.
123. 487 U.S. 735 (1987).
124. Id. at 739.
125. Id. at 739-40.
126. Id. at 745.
127. Id. at 762.
128. Id. at 746.
129. Id. at 751 (quoting Int'l Ass'n of Machinists v. Street, 367 U.S. 740, 764 (1960)).
130. 367 U.S. at 749.
131. Id. at 745.
132. Hartley, supra note 28, at 83
133. see also James J. Brudney, A Famous Victory: Collective Bargaining Protections and the Statutory Aging Process, 74 N.C. L. Rev. 939, 1028 & n.298 (1996) (describing Beck Court as "relying ... implicitly on the canon of construing statutes to avoid constitutional problems").
134. Roberto L. Corrada, Religious Accommodation and the National Labor Relations Act, 17 Berkeley J. Emp. & Lab. L. 185, 231 (1996) ("[A]lthough [Beck] is expressly based on an interpretation of the NLRA, it is clear that fundamental notions of free speech and associational rights were at play ....")
135. Dau-Schmidt, supra note 50, at 54-55 ("The Court's interpretation of section 8(a)(3) deviates from Congress's intent because it relies on the Court's prior interpretation of section 2 Eleventh of the RLA and on that interpretation's constitutionally colored view of the purpose and extent of union security agreements allowed under the RLA.")
136. Feldman, supra note 28, at 233 ("Beck is not directly based on the First Amendment, but it makes sense only as an example of the Justices' infusing the values they find in the First Amendment into an area that they are nonetheless unwilling to decide its subject to the Constitution.").
137. Sean T. McLaughlin, A Devil in Disguise: How Paycheck Protection Legislation Violates the First Amendment, 27 Seton Hall Legis. J. 113, 120 (2002) ("Although the Beck Court largely avoided First Amendment issues, the decision rested on the notion that compelling dissenting workers to support all union activity violates their freedom of association.").
138. See, e.g., 2 The Developing Labor Law: The Board, the Courts, and the National Labor Relations Act ch. 26, at 2106-42, 2176-84, 2198-203 (John E. Higgins, Jr. et al. eds., 5th ed. 2006). In the NLRA context, the NLRB has held that the RLA and public sector cases do not determine the appropriate procedures for political objectors. As such, the Board has developed its own standards for union shop provisions under the NLRA, but the standards are much the same. Cal. Saw & Knife Works, 320 N.L.R.B. 224 (1995).
139. Cf. Abood v. Detroit Bd. of Educ., 431 U.S. 209, 240-42 (1977) ("[I]n holding that as a pre-requisite to any relief each appellant must indicate to the Union the specific expenditures to which he objects, the Court of Appeals ignored the clear holding of Allen.").
140. Lehnert v. Ferris Faculty Ass'n, the Court concluded that public sector unions may charge dissenters only for lobbying related to the "legislative ratification of, or fiscal appropriations for, their collective-bargaining agreement." 500 U.S. 507, 519 (1990).
141. see also Seidemann v. Bowen, 584 F.3d 104, 114-15 (2d Cir. 2009) (stating only lobbying expenses "related to collective bargaining" are chargeable). This holding implies not only that public sector unions must allow employees to opt out of most lobbying expenses, but that private sector unions-who need not seek legislative enactment or appropriations of their collective bargaining agreements-may not fund most types of lobbying with their general treasuries. The specific types of lobbying expenditures covered by the opt-out right, however, remain the subject of some dispute.
142. See, e.g., United Nurses & Allied Prof'ls (Kent Hosp.), N.L.R.B. Case No. 1-CB-11135, at 5, 2011 WL 1187740, at *4 (ALJ Mar. 30, 2011) (noting "difficulty in establishing a dividing line between chargeable and nonchargeable" expenses and finding some lobbying expenses chargeable and others nonchargeable)
143. United Food & Commercial Workers Locals 951 (Meijer, Inc.), 329 N.L.R.B. 730, 755 (ALJ Jan. 31, 1997) (finding certain lobbying expenses nonchargeable).
144. Ellis v. Bhd. of Ry., Airline & S.S. Clerks, 466 U.S. 435, 443-44 (1984)
145. see also Chi. Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 304-06 (1986) ("[A] remedy which merely offers dissenters the possibility of a rebate does not avoid the risk that dissenters' funds may be used temporarily for an improper purpose.")
146. Wash.-Balt. Newspaper Guild, Case Nos. 5-CB-9252, 5-CB-9254, 5-CB-9257, N.L.R.B. Gen. Couns. Mem. 4-5 (Jan. 16, 2002), available at http://mynlrb.nlrb.gov/link/document.aspx/09031d45801b196d (on file with the Columbia Law Review) (noting "the union's charge and rebate system was unlawful" (citing United Food & Commercial Workers, 329 N.L.R.B. at 754)).
147. Hudson, 475 U.S. at 310; California Saw, 320 N.L.R.B. at 233. In a 2007 decision, the Court held-at least with respect to public sector employees-that a state may require a union to obtain a nonmember's affirmative consent before using her dues for political purposes. Davenport v. Wash. Educ. Ass'n, 551 U.S. 177, 184-86 (2007). That is, both an opt-out and an opt-in regime are permissible.
148. Brudney, Business Corporations and Stockholders' Rights, supra note 13, at 267-74.
149. Bebchuk & Jackson, supra note 14, at 113. 102.
150. Id. at 114
151. Mallory, supra note 14, at 32 (discussing parallels between corporate and union contexts).
152. Though not entirely unexplored
153. Brudney provides some important discussion in two articles.
154. Brudney, Association, supra note 14, at 47-49, 56-57 & n.140;
155. Brudney, Business Corporations and Stockholders' Rights, supra note 13, at 270. Bebchuk and Jackson note the question of state action and voluntariness in the two contexts, though they reject a distinction on these grounds. See Bebchuk & Jackson, supra note 14, at 114 ("[T]he union case and the public company case [are] distinguishable because participation may be required by law in the former but not the latter ... [but] the volitional nature of being a shareholder ... does not protect shareholders from the consequences of political speech they disfavor."). Mallory also briefly discusses and dismisses distinctions on voluntariness and state action grounds, and argues that the union's duty of fair representation is analogous to the corporation's fiduciary duties to its shareholders.
156. Mallory, supra note 14, at 32-36
157. see also Charlotte Garden, Citizens, United and Citizens United: The Future of Labor Speech Rights?, 53 Wm. & Mary L. Rev. 1, 43-45 (2011) (noting differences between two contexts but arguing "selling stock could sometimes be as difficult-or even more difficult-than leaving a job").
158. Int'l Ass'n of Machinists v. Street, 367 U.S. 740, 770 (1961).
159. Id. at 768-69.
160. As discussed earlier, the first premise of the Court's rule is that the union's political and economic powers are distinct from one another. See supra text accompanying note 71. This premise has rightfully been subject to severe criticism.
161. See supra note 71 (describing Justice Frankfurter's, David Gaebler's, and Alan Hyde's criticism of Court's distinction between union's political and economic power). Because the question here is whether the normative criteria under which union security clauses are considered impermissible applies to shareholders and the funding of corporate political speech, an analysis of the Court's premise is beyond the scope of this discussion.
162. Walzer, Spheres, supra note 23, at 17-20. For a critique of Walzer's view and the theory set out in Spheres of Justice
163. see, for example, Ronald Dworkin, To Each His Own, N.Y. Rev. Books, Apr. 14, 1983, at 4, 6. For a response to Dworkin's critique.
164. see Michael Walzer, "Spheres of Justice": An Exchange, N.Y. Rev. Books, July 21, 1983, at 42, 42-46.
165. Walzer, Spheres, supra note 23, at 13-17. Concentrations of goods or power within spheres may, in fact, be entirely consistent with the distributive criteria applicable there-for example, "within the distributive frame of the market, concentrated economic power is not necessarily unjust; nor is concentrated political power considered inappropriate in the political arena." Linda Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership 44 (2006).
166. Walzer, Spheres, supra note 23, at 17-20.
167. Id. at 19.
168. NLRA § 7, 29 U.S.C. § 157 (2006).
169. See generally Julius G. Getman, The Protection of Economic Pressure by Section 7 of the National Labor Relations Act, 115 U. Pa. L. Rev. 1195 (1967) (analyzing extent of protection afforded economic pressure by NLRA § 7).
170. Eastex, Inc. v. NLRB, 437 U.S. 556, 568 n.18 (1978) ("The argument that the employer's lack of interest or control affords a legitimate basis for holding that a subject does not come within 'mutual aid or protection' is unconvincing. The argument that economic pressure should be unprotected in such cases is more convincing." (quoting Getman, supra note 111, at 1221) (internal quotation marks omitted))
171. NLRB v. Ins. Agents' Int'l Union, 361 U.S. 477, 513-14 (1960). In a classic case, the Court held that workers who walked off the job because the factory floor was too cold were protected against discharge by the employer. NLRB v. Wash. Aluminum Co., 370 U.S. 9, 18 (1962).
172. See generally Seth Kupferberg, Political Strikes, Labor Law, and Democratic Rights, 71 Va. L. Rev. 685, 687 (1985) (defining political strikes as "those in which workers seek to make a political point rather than to win a better labor contract").
173. Int'l Longshoremen's Ass'n v. Allied Int'l, Inc., 456 U.S. 212, 226 (1982). In the most recent application of this economic/political "dichotomy," the NLRB's general counsel determined that workers who imposed economic pressure on their employer in order to protest federal immigration policy were subject to discharge.
174. See Reliable Maintenance, Case No. 18-CA-18119, N.L.R.B. Gen. Couns. Mem. 3 (Oct. 31, 2006), available at http://mynlrb.nlrb.gov/link/document.aspx/09031d458000d21d (on file with the Columbia Law Review) ("[E]mployee pressure against even their own employer is unlawful, if there is nothing that employer can do to resolve that dispute.").
175. Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 115 (2000).
176. Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 U. Chi. L. Rev. 361, 417-18 (2004).
177. See, e.g., Bruce Ackerman & James S. Fishkin, Deliberation Day 38 (2004) ("[A]s the franchise widened, public voting ... began to look like a trick by which the rich manmight retain effective electoral power while formally conceding the right to vote to the unwashed.").
178. see also Keyssar, supra note 115, at 115 (noting open ballots rendered votes observable to "election officials, party bosses, employers, or anyone else watching the polls"); Nadia Urbinati, Mill on Democracy: From the Athenian Polis to Representative Government 106 (2002) ("Just as anonymity and secrecy went hand in hand, so did responsibility and openness. [Secret ballots] reduced bribery and the subordination of economically dependent citizens to the will of the powerful ....").
179. See, e.g., Ackerman & Fishkin, supra note 117, at 38 (noting result of open voting scheme was poor "could not afford to deviate from the political opinions of their economic masters")
180. see also Keyssar, supra note 115, at 115 (discussing development of secret ballot); Urbinati, supra note 117, at 106 (noting John Stuart Mill's argument that secret ballot could "guard electors against 'coercion by landlords, employers, and customers'" (quoting John Stuart Mill, Considerations on Representative Government, in On Liberty and Other Essays 203, 357 (John Gray ed., 1998))). Brudney raises a related point with respect to vote buying. Brudney, Association, supra note 14, at 28. 119. Vermeule, supra note 116, at 418.
181. Ackerman & Fishkin, supra note 117, at 38.
182. see also Bruce Ackerman & Ian Ayres, Voting with Dollars: A New Paradigm for Campaign Finance 18 (2002) ("By disrupting the black market for votes, the secret ballot became the foundation for the construction of a parallel sphere of life-in which equal citizens, rather than unequal property owners, express their political judgments.").
183. Saul Levmore, Precommitment Politics, 82 Va. L. Rev. 567, 609 (1996).
184. Pamela S. Karlan, Not by Money but by Virtue Won? Vote Trafficking and the Voting Rights System, 80 Va. L. Rev. 1455, 1457-58 & n.7 (1994) (citing 42 U.S.C. § 1971(b) (1988)) (discussing United States v. Beaty, 288 F.2d 653 (6th Cir. 1961), as example of how anti-intimidation laws have been read to outlaw "the use of superior physical or economic force" to compel or prevent votes).
185. 288 F.2d 653
186. see also Karlan, supra note 122, at 1458 n.7 (citing Beaty).
187. 288 F.2d at 654-56.
188. 2 U.S.C. § 441b (2006).
189. Id. § 441b(b)(3)(A) ("It shall be unlawful for [a labor union] to make a contribution or expenditure by utilizing money or anything of value secured by ... dues, fees, or other moneys required as a condition of membership in a labor organization or as a condition of employment ....")
190. Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 427 (1972).
191. 2 U.S.C. § 441b(b)(3)(A).
192. Id. § 441b(b)(4)(B) (permitting corporations and labor organizations to make two written solicitations for contributions to employees, stockholders, or union members during each calendar year subject to set of conditions). The Hatch Act, which prohibits certain public employees from soliciting political contributions from subordinate employees, reflects analogous concerns.
193. See 5 U.S.C. §§ 7323, 7324 (2006).
194. See generally Cass R. Sunstein, Political Equality and Unintended Consequences, 94 Colum. L. Rev. 1390, 1395-97 (1994) (discussing Supreme Court jurisprudence on campaign finance regulations).
195. FEC v. Mass. Citizens for Life, 479 U.S. 238, 257 (1986)
196. see also Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 660 (1990) (holding that allowing resources derived from economic marketplace to influence political debate would "distort" political marketplace).
197. Citizens United v. FEC, 130 S. Ct. 876, 905 (2010). It is, the Court writes, "irrelevant for purposes of the First Amendment that corporate funds may have 'little or no correlation to the public's support for the corporation's political ideas.'" Id. (quoting Austin, 494 U.S. at 660).
198. Bebchuk & Jackson, supra note 14, at 87.
199. Id. Federal rules require firms to include in their proxy statements shareholder proposals regarding disclosure of political spending. Id. at 88. In a recent no-action letter, the SEC also ruled that a corporation must include a shareholder proposal regarding the permissibility of such spending itself.
200. See The Home Depot, Inc., SEC No-Action Letter, 2011 WL 291324, at *1 (Mar. 25, 2011).
201. See generally Andy Kroll, Citizens United: The Shareholders Strike Back, Mother Jones (June 1, 2011, 2:00 AM), http://motherjones.com/politics/2011/05/citizens-united-home-depot-elect ions (on file with the Columbia Law Review) (discussing shareholder effort to compel Home Depot to disclose political campaign spending). Such proposals are not binding on the corporation.
202. Bebchuk & Jackson, supra note 14, at 88. Recently, however, the SEC Commissioner has expressed his view that the Commission should require disclosure of corporate political expenditures, Luis A. Aguilar, Comm'r, SEC, Address at Practicing Law Institute's SEC Speaks in 2012 Program (Feb. 24, 2012), available at http://www.sec.gov/news/speech/2012/spch022412laa.htm (on file with the Columbia Law Review), a move urged by a number of leading corporate law scholars. See Committee on Disclosure of Corporate Political Spending, Petition for Rulemaking (Aug. 3, 2011) (on file with the Columbia Law Review) (arguing SEC should initiate rulemaking project to require disclosure of corporate political spending to public company shareholders).
203. Clark, supra note 19, § 3.4, at 123.
204. Brudney, Business Corporations and Stockholders' Rights, supra note 13, at 258.
205. Henry Hansmann, The Ownership of Enterprise 11 (1996).
206. Brudney, Association, supra note 14, at 56.
207. see also Brudney, Business Corporations and Stockholders' Rights, supra note 13, at 264 (stating investment "requires [shareholder] to permit the use of his assets to support social views and generate social attitudes that may impinge upon his individual preferences").
208. For a discussion, see infra Part III (noting importance of both employment and investment opportunities).
209. Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 406-08 (1972).
210. Id. at 408 (quoting 93 Cong. Rec. 6440 (1947) (statement of Sen. Robert Taft)).
211. Id. at 423 (quoting 117 Cong. Rec. 43,381 (1971) (statement of Rep. Orval Hansen)).
212. 2 U.S.C. § 441b(b)(3)(A) (2006).
213. Again, Citizens United rejects the claim that a congressional concern for protecting dissenting shareholders constitutes a governmental interest sufficiently compelling to justify a ban on corporate political spending. Citizens United v. FEC, 130 S. Ct. 876, 911 (2010). But, as the section above discussed, the funding of political speech presents a different set of issues than does the conditioning of economic opportunity on political support. Citizens United, moreover, says nothing about this latter concern. Nothing in the Citizens United opinion, that is, questions whether Congress in fact intended to "protect[ ] dissenting shareholders from being compelled to fund corporate political speech," and nothing in the opinion rejects this motivation as a legitimate congressional interest. Id. To the contrary, the Citizens United Court accepts the possibility that the congressional concern for objecting shareholders could be addressed through other means. As the Court writes, "the remedy is not to restrict speech but to consider and explore other regulatory mechanisms." Id.
214. Bebchuk & Jackson, supra note 14, at 114.
215. These are the three arguments that bear most directly on the affirmative case for symmetry identified in the previous Part, and these are the arguments that are most prominent in the literature and case law. It is possible, of course, that another distinction could be identified that would warrant asymmetric treatment-some other feature that could justify allowing corporations, but not unions, to condition economic opportunity on political compliance and support. The point here is to show that the most prominent distinctions-including those relied on by the Court and commentators to date-do not justify asymmetric opt-out rules. By doing so, the argument intends to shift the burden to those defending the asymmetric rule to offer a distinction that has yet to be identified.
216. Compare, e.g., Abood v. Detroit Bd. of Educ., 431 U.S. 209, 236 (1977) ("coerced"), with, e.g., id. at 222 ("compel[led]").
217. 435 U.S. 765 (1978).
218. Id. at 767.
219. Id. at 792-93.
220. Id. at 815-16 (White, J., dissenting).
221. Id. at 794 n.34 (majority opinion).
222. (quoting Abood v. Detroit Bd. of Educ., 431 U.S. 209, 235 n.31 (1977)).
223. A distinction addressed in section B below.
224. 435 U.S. at 794 n.34. Brudney's thought on the question is more nuanced than the Court's. In a 1995 article, Brudney wrote that while an employee's "obligation to contribute to the union is ... compelled by social and economic pressures," Brudney, Association, supra note 14, at 49, investors purchase shares "if not wholly knowingly and willingly, at least more 'voluntarily' than those who join unions with union shop arrangements." Id. at 56 n.140. Similarly, in his 1981 article, Brudney concluded that "in substance, the freedom to refrain from working is not equally as exercisable as the freedom isto refrain from investing, because the worker's alternatives are not as fungible as the investor's alternatives, and because the cost of seeking alternatives is greater for the worker than for the investor." Brudney, Business Corporations and Stockholders' Rights, supra note 13, at 270. Nonetheless, he also believed that the shareholder's "consenting in advance to the use of funds for expression on an infinity of subjects cannot realistically be characterized as voluntary." Id.
225. Cf. Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413,
226. 1428 (1989) (arguing Court has "never developed a coherent rationale" to explain when it does and does not find coercion).
227. See, e.g., Seidman, supra note 78, at 1589 ("[N]o one is compelled to accept a job from an employer who has agreed to an agency-shop arrangement.")
228. see also Right to Work States, Nat'l Right to Work Legal Def. Found., Inc., http://www.nrtw.org/rtws.htm (on file with the Columbia Law Review) (last visited Jan. 26, 2012) (listing states where union security agreements are prohibited by law).
229. Justice Kennedy, for example, suggests that a union security clause requires that employees pay dues in order to "earn a living." Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 710 (1990) (Kennedy, J., dissenting).
230. For a discussion of the coerciveness of wage offers
231. see generally Barbara H. Fried, The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement 46-47 (1998) [hereinafter Fried, Progressive Assault]
232. David Zimmerman, Coercive Wage Offers, 10 Phil. & Pub. Affairs 121 (1981). For present purposes, this Article assumes-as the law does-that employment contracts are not all invalid on coercion grounds in order to illuminate why the law treats union shop agreements in particular as coercive.
233. In most settings, if A coerces B to do X, B is released from the normal legal consequences of having done X. Wertheimer, Coercion, supra note 26, at 267. When the Court finds coercion in the union security context, rather than providing employees with an ex post remedy, the Court provides an ex ante remedy: It grants employees a legally enforceable right to opt out of the union security provision of the contract, while nonetheless remaining entitled to the remainder of the employment bargain. Whether the remedy is ex ante or ex post, however, the analysis is the same.
234. Id. at 30, 172. As Wertheimer's own exhaustive survey reveals, the two-pronged theory developed in the philosophical literature is deployed across multiple areas of law.
235. See infra note 170.
236. Wertheimer, Coercion, supra note 26, at 172.
237. The "no reasonable alternative" construction comes from the definition of duress in the Restatement (Second) of Contracts. Restatement (Second) of Contracts § 175(1) (1981). Wertheimer uses "no acceptable alternative."
238. Wertheimer, Coercion, supra note 26, at 267. This discussion employs "acceptable" in order to better track Wertheimer's discussion of the issue. Moreover, as noted below, "acceptable" makes the normative nature of this prong of the coercion inquiry more transparent.
239. Wertheimer, Coercion, supra note 26, at 267, 272-74. Indeed, even in paradigmatic cases of coercion, B will have some alternative to complying with A's proposal: Faced with the gunman's proposal "your money or your life," the victim has the alternative of surrendering his life.
240. Richard Posner, Economic Analysis of Law 143 (8th ed. 2011)
241. Sullivan, supra note 154, at 1446. The victim is coerced, nonetheless, because surrendering one's life is not an acceptable alternative to turning over one's money.
242. See, e.g., Wertheimer, Coercion, supra note 26, at 35 (noting finding of contractual duress does not turn on finding of "no choice" but on finding of "no acceptable alternative").
243. Sullivan, supra note 154, at 1446.
244. Wertheimer, Coercion, supra note 26, at 267.
245. Charles Fried, for example, writes that "[t]he 'no real choice' locution is obviously unsatisfactory on its own to explain [a finding of coercion], since any consumer facing a perfectly competitive market for some necessity or set of necessities has no real choice but to pay the market price ...."
246. Charles Fried, Contract as Promise: A Theory of Contractual Obligation 104 (1981) [hereinafter Fried, Contract as Promise]. Fried's claim would seem to hold even in the absence of "perfectly competitive markets."
247. Robert Hale, agreeing with Fried, similarly rejected the idea that "what made an offer coercive was that the offeree was not in a position to refuse it." Fried, Progressive Assault, supra note 157, at 62.
248. See Alan Wertheimer, Exploitation in Clinical Research, in Exploitation in Developing Countries: The Ethics of Clinical Research 63, 76 (Jennifer S. Hawkins & Ezekiel J. Emanuel eds., 2008) [hereinafter Wertheimer, Exploitation].
249. Wertheimer, Coercion, supra note 26, at 30 ("To show that B acts under duress, it is also necessary, but not sufficient, to show that A's proposal is wrongful."). Wertheimer explains that while courts generally address the choice prong before the proposal prong, his preference is to ask the proposal question first.
250. Id. at 267-68. At least for purposes of this discussion, the order of the inquiry is less important than the general conclusion that both prongs are necessary for a finding of coercion and that neither prong is sufficient.
251. See id. (arguing both prongs are necessary regardless of order).
252. Fried, Contract as Promise, supra note 165, at 104
253. Fried, Progressive Assault, supra note 157, at 59
254. Wertheimer, Coercion, supra note 26, at 172. 169.
255. See Alan Wertheimer, Coercion, in Encyclopedia of Ethics 172, 174 (Lawrence C. Becker & Charlotte B. Becker eds., 1992) (noting "employer A has a right to propose to give B a salary only if B agrees to work for A").
256. See, e.g., Fried, Contract as Promise, supra note 165, at 97 ("A proposal is not coercive if it offers what the proponent has a right to offer .... It is coercive if it proposes a wrong ...."). Like Fried, Hale believed that the coercion inquiry turned on a determination of the "baseline entitlements and duties ... we wish, as a moral or legal matter, to establish."
257. Fried, Progressive Assault, supra note 157, at 59. As Wertheimer's own exhaustive survey reveals, the two-pronged theory developed in the philosophical literature is deployed across multiple areas of law. In perhaps the most well known example, the Restatement (Second) of Contracts states that a contract is voidable on duress grounds when contractual assent is "induced by an improper threat ... that leaves the victim no reasonable alternative." Restatement (Second) of Contracts § 175(1) (1981) (emphasis added). Here, then, the "no reasonable alternative" requirement captures the choice prong and the impropriety requirement captures the proposal prong. Wertheimer also finds that the two-pronged theory of coercion explains much of tort law, along with the law of marriage, adoption and wills, confessions, searches, and plea bargaining.
258. Wertheimer, Coercion, supra note 26, at 54-89, 121-43. Kathleen Sullivan similarly argues that such a two-pronged theory of coercion explains not only contractual duress but also the law of blackmail, certain labor law decisions regarding coercive employer speech, and rules regarding partial and two-tier tender offers in corporate law.
259. Sullivan, supra note 154, at 1443-46.
260. See supra note 47 and accompanying text (identifying wage premium and scholarly treatment of the premium). One recent article disputes whether unionization brings a wage premium at all.
261. See John DiNardo & David S. Lee, Economic Impacts of New Unionization on Private Sector Employers: 1984-2001, 119 Q.J. Econ. 1383, 1383, 1431 (2004) (concluding effects of unionization on wages are close to zero, and unions have been less effective at creating wage premium in recent years). However, the vast bulk of the research suggests the premium's existence.
262. See, e.g., Blanchflower & Bryson, supra note 47, at 103 (finding wage premium is lower today than in 1970s but still exists).
263. John W. Budd, The Effect of Unions on Employee Benefits and Non-Wage Compensation: Monopoly Power, Collective Voice, and Facilitation, in What Do Unions Do? A Twenty-Year Perspective 160, 177-81 (James T. Bennett & Bruce E. Kaufman eds., 2008).
264. Though, it should be said, not impossible to achieve in nonunion settings. See generally Cynthia Estlund, Rebuilding the Law of the Workplace in an Era of Self- Regulation, 105 Colum. L. Rev. 319 (2005) (discussing rise of corporate self-regulation and role of employees in self-regulation).
265. See Bureau of Labor Statistics, U.S. Dep't of Labor, Union Members-2011, supra note 175, at 7 tbl.3. After education and protective services, the next most highly unionized occupations have density rates much closer to the overall rate. For xample, the third most unionized occupation is construction and extraction, with an 18.8% unionization rate, and the fourth is transportation and material moving, at 17.2%.
266. In certain states, occupational union density is even higher. Indeed, 100% of the public school districts in Hawaii and Nevada have a collective bargaining agreement with a teacher's union.
267. U.S. Dep't of Educ., Schools and Staffing Survey 2007-2008: Table 7. Percentage Distribution of Public School Districts, by Specific Agreements with Teachers' Associations or Unions and State, http://nces.ed.gov/surveys/sass/tables/sass0708_2009320_d1s_07.asp (on file with the Columbia Law Review) (last visited Apr. 19, 2012).
268. John Rawls, Political Liberalism 180-81 (1993)
269. Frank I. Michelman, The Priority of Liberty: Rawls and a Warren Court Model 11 (Harvard Pub. Law Working Paper No. 11-22, 2011), available at http://ssrn.com/abstract=1927292 (on file with the Columbia Law Review).
270. Constituci ́on Pol ́i{dotless}tica de Colombia [C.P.] 1991, art. 26 ("Every person is free to choose a profession or occupation."); Suomen perustuslaki [Constitution] June 11, 1999, ch. 2, § 18 (Fin.) ("Everyone has the right, as provided by an Act, to earn his or her livelihood by the employment, occupation or commercial activity of his or her choice.")
271. Grundgesetz f̈ur die Bundesrepublik Deutschland [Grundgesetz][GG][Basic Law], May 23, 1949, BGBI. I, art. 12 (Ger.), translated in Inter Nationes, http://www.iuscomp.org/gla/statutes/GG.htm (on file with the Columbia Law Review) ("All Germans shall have the right freely to choose their occupation.")
272. Stjórnarskrá lýdveldisins Íslands [Constitution] June 17, 1944, art. 75 (Ice.) ("Everyone shall be free to pursue the employment of his choice.")
273. Grondwet voor het Koninkrijk der Nederlanden (Constitution of the Kingdom of the Netherlands) [Gw] Feb. 17, 1983, art. XIX ("The right of every Dutch national to a free choice of work shall be recognized."). The United States Supreme Court also has stressed the importance of access to occupation, most recently in cases involving state attempts to exclude immigrants from certain occupations
274. Examining Bd. of Eng'rs, Architects, & Surveyors v. Flores de Otero, 426 U.S. 572 (1976)
275. In re Griffiths, 413 U.S. 717 (1973)
276. Yick Wo v. Hopkins, 118 U.S. 356 (1886). In an earlier era, the Court held that the right "to engage in any of the common occupations of life" was a right protected by the Due Process Clause of the Fourteenth Amendment.
277. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
278. Meyer relies on Lochner v. New York, 198 U.S. 45 (1905), so it lacks much contemporary precedential force.
279. Sarah A. Burgard, Jennie E. Brand & James S. House, Toward a Better Estimation of the Effect of Job Loss on Health, 48 J. Health & Soc. Behav. 369, 370 (2007)
280. Daniel Sullivan & Till von Wachter, Job Displacement and Mortality: An Analysis Using Administrative Data, 124 Q.J. Econ. 1265, 1265 (2009).
281. Involuntary job losses are defined as any "discharge from paid employment for any reason when an individual would prefer to keep working." Burgard et al., supra note 186, at 370.
282. For data on earnings losses, see Kenneth A. Couch & Dana W. Placzek, Earnings Losses of Displaced Workers Revisited, 100 Am. Econ. Rev. 572, 572 (2010) (reporting losses of 32-33% in period immediately following job loss).
283. Over time, these losses diminish, but they remain substantial. For example, in a study of earnings losses of displaced workers in Connecticut, Kenneth Couch and Dana Placzek report initial earnings losses of 32-33% and losses of 7-9% six years after the separation from employment.
284. Id. at 577. In a national study, Till von Wachter finds that among workers andisplaced by a mass layoff, initial earnings decline by 30%, and remain at 21% ten and twenty years after the job loss.
285. Till von Wachter, Jae Song & Joyce Manchester, Long-Term Earnings Losses Due to Mass Layoffs During the 1982 Recession: An Analysis Using U.S. Administrative Data from 1974-2004, at 3 (2009), available at http://www.columbia.edu/~vw2112/papers/mass_layoffs_1982.pdf (on file with the Columbia Law Review).
286. This study finds no long-term earnings losses for workers separating from their jobs, except during mass layoffs, though it expresses reservations about this particular finding. Id. at 9-10.
287. Von Wachter et al., supra note 187, at 16.
288. Challenges for the U.S. Economic Recovery: Hearing Before the S. Budget Comm., 112th Cong. 2 (2011) [hereinafter Hearing] (statement of Till von Wachter, Assoc. Professor of Econ., Columbia Univ.), available at http://www.columbia.edu/~vw2112/Von_Wachter_Testimony_Before_Senate_Budg et_Committee_2011.pdf (on file with the Columbia Law Review) (citing Ann Huff Stevens, Persistent Effects of Job Displacement: The Importance of Multiple Job Losses, 15 J. Lab. Econ. 165 (1997)).
289. Stevens, supra note 189, at 171-72. These additional job losses might also be explained in part because of "persistent worker characteristics" that led to the first job loss.
290. Burgard et al., supra note 186, at 371 (describing data sources). These health effects may be compounded by a loss of health insurance benefits.
291. Sullivan & von Wachter, supra note 186, at 1267 n.4. Consistent with these negative health effects, moreover, Daniel Sullivan and Till von Wachter find that certain forms of displacement can increase mortality rates.
292. id. at 1266, 1302-03 (estimating involuntary job loss reduces life expectancy by one to one and a half years); accord Hearing, supra note 189, at 2 (statement of Till von Wachter) ("[T]hese health declines [caused by employment and earnings instability] can lead to significant reductions in life expectancy of 1 to 1.5 years.").
293. Burgard et al., supra note 186, at 371 ("An involuntary job loss could entail the loss of psychosocial assets including goal and meaning in life, social support, sense of control, and time structure."). Such effects can also include "anxiety, insecurity, and shame.".
294. Public employee pension plans stand as a relevant exception to this rule; this exception is discussed in Part IV.C.
295. Aswath Damodaran, Annual Returns on Stock, T. Bonds and T. Bills: 1928-Current, http://pages.stern.nyu.edu/~adamodar/New_Home_Page/datafile/histret.html #_msoanchor_1 (on file with the Columbia Law Review) (last updated Jan. 5, 2012).
296. These figures are calculated using a "Future Value of an Annuity" model. See Terry Lloyd & Vincent J. Love, Practicing Law Inst., Introduction to Accounting for Lawyers 228-30 (1993).
297. Sallie Mae, How America Saves for College: Sallie Mae's National Study of Parents with Children Under 18 Conducted by Gallup 33 (2010), available at https://www.salliemae.com/NR/rdonlyres/460220B6-BB1D-4AE7-803D-C87BBF3BC FFE/13161/how_america_saves_100410_final.pdf (on file with the Columbia Law Review) (listing top savings priorities for 2010)
298. id. at 10, 13 fig. 3 (detailing savings vehicles used to fund college education)
299. Emily Brandon, The 4 Biggest Sources of Retirement Income, Planning to Retire, U.S. News & World Rep. (Jan. 12, 2010), http://money.usnews.com/money/blogs/planning-to-retire/2010/01/12/the-4- biggest-sources-of-retirement-income (on file with the Columbia Law Review) (detailing savings vehicles used to fund retirement).
300. supra note 198 (citing authorities detailing sources of college and retirement savings).
301. Sallie Mae, supra note 198, at 14 (noting proportion of college funds derived from investments increases with family income).
302. Robert H. Sitkoff, Corporate Political Speech, Political Extortion, and the Competition for Corporate Charters, 69 U. Chi. L. Rev. 1103, 1119-20 (2002).
303. Sitkoff points to the existence of "social responsibility" funds that "assure investors that their money will not be invested in corporations engaged in certain specific forms of behavior, such as the sale of alcohol or tobacco, military contracting, abortionrelated services, and so on."
304. Id. at 1119. Indeed, such funds are now relatively common.
305. These funds generally screen corporations for what are termed "ESG factors"-the firm's policies regarding environmental, social, and (corporate) governance issues-as well as for the corporation's specific products. See Socially Responsible Mutual Fund Charts: Screening & Advocacy, The Forum for Sustainable and Responsible Investment, http://ussif.org/resources/mfpc/screening.cfm (on file with the Columbia Law Review) (last visited Jan. 26, 2012) (charting social, environmental, corporate governance, and product investment criteria considered by numerous mutual funds)
306. S. Prakesh Sethi, Investing in Socially Responsible Companies Is a Must for Public Pension Funds-Because There Is No Better Alternative, 56 J. Bus. Ethics 99, 101 (2005) (detailing relevant criteria for socially responsible investing). But these funds do not, at least of yet, screen for political spending.
307. Target Corporation, for example, faced heavy criticism for its decision to donate $150,000 to a Minnesota gubernatorial candidate who was an opponent of gay rights.
308. Jennifer Martinez & Tom Hamburger, Target Faces Investor Backlash, L.A. Times, Aug. 20, 2010, at A1 (reporting backlash against Target). Although Target representatives promised to review their "decision-making process for financial contributions in the public policy arena," id., that policy still explicitly allows Target to "provide financial support to political candidates, political parties or ballot initiatives" through its general treasury.
309. Target Corp., Civic Activity: Political Contributions, http://hereforgood.target.com/learnmore/civic-activity (on file with the Columbia Law Review) (last visited Jan. 26, 2012).
310. A handful of major corporations have policies precluding direct political contributions and expenditures-to both federal and state candidates and parties-from general treasury funds.
311. Bill de Blasio, Pub. Advocate for N.Y.C., Where Do The Largest Corporations in America Stand on Corporate Spending in our Elections?, http://advocate.nyc.gov/corporate-spending (on file with the Columbia Law Review) (last visited Jan. 26, 2012) (explaining Citizens United and outlining key corporations' stances on spending corporate treasury money in elections). Most of these corporations, however, maintain and 200. See Sallie Mae, supra note 198, at 14 (noting proportion of college funds derived from investments increases with family income).
312. Robert H. Sitkoff, Corporate Political Speech, Political Extortion, and the Competition for Corporate Charters, 69 U. Chi. L. Rev. 1103, 1119-20 (2002).
313. Sitkoff points to the existence of "social responsibility" funds that "assure investors that their money will not be invested in corporations engaged in certain specific forms of behavior, such as the sale of alcohol or tobacco, military contracting, abortionrelated services, and so on."
314. Id. at 1119. Indeed, such funds are now relatively common.
315. These funds generally screen corporations for what are termed "ESG factors"-the firm's policies regarding environmental, social, and (corporate) governance issues-as well as for the corporation's specific products.
316. Socially Responsible Mutual Fund Charts: Screening & Advocacy, The Forum for Sustainable and Responsible Investment, http://ussif.org/resources/mfpc/screening.cfm (on file with the Columbia Law Review) (last visited Jan. 26, 2012) (charting social, environmental, corporate governance, and product investment criteria considered by numerous mutual funds)
317. S. Prakesh Sethi, Investing in Socially Responsible Companies Is a Must for Public Pension Funds-Because There Is No Better Alternative, 56 J. Bus. Ethics 99, 101 (2005) (detailing relevant criteria for socially responsible investing). But these funds do not, at least of yet, screen for political spending.
318. Target Corporation, for example, faced heavy criticism for its decision to donate $150,000 to a Minnesota gubernatorial candidate who was an opponent of gay rights.
319. Jennifer Martinez & Tom Hamburger, Target Faces Investor Backlash, L.A. Times, Aug. 20, 2010, at A1 (reporting backlash against Target). Although Target representatives promised to review their "decision-making process for financial contributions in the public policy arena," id., that policy still explicitly allows Target to "provide financial support to political candidates, political parties or ballot initiatives" through its general treasury.
320. Target Corp., Civic Activity: Political Contributions, http://hereforgood.target.com/learnmore/civic-activity (on file with the Columbia Law Review) (last visited Jan. 26, 2012).
321. A handful of major corporations have policies precluding direct political contributions and expenditures-to both federal and state candidates and parties-from general treasury funds.
322. Bill de Blasio, Pub. Advocate for N.Y.C., Where Do The Largest Corporations in America Stand on Corporate Spending in our Elections?, http://advocate.nyc.gov/corporate-spending (on file with the Columbia Law Review) (last visited Jan. 26, 2012) (explaining Citizens United and outlining key corporations' stances on spending corporate treasury money in elections). Most of these corporations, however, maintain and 200.
323. Sallie Mae, supra note 198, at 14 (noting proportion of college funds derived from investments increases with family income).
324. Robert H. Sitkoff, Corporate Political Speech, Political Extortion, and the Competition for Corporate Charters, 69 U. Chi. L. Rev. 1103, 1119-20 (2002).
325. Sitkoff points to the existence of "social responsibility" funds that "assure investors that their money will not be invested in corporations engaged in certain specific forms of behavior, such as the sale of alcohol or tobacco, military contracting, abortionrelated services, and so on."
326. Id. at 1119. Indeed, such funds are now relatively common.
327. These funds generally screen corporations for what are termed "ESG factors"-the firm's policies regarding environmental, social, and (corporate) governance issues-as well as for the corporation's specific products.
328. Socially Responsible Mutual Fund Charts: Screening & Advocacy, The Forum for Sustainable and Responsible Investment, http://ussif.org/resources/mfpc/screening.cfm (on file with the Columbia Law Review) (last visited Jan. 26, 2012) (charting social, environmental, corporate governance, and product investment criteria considered by numerous mutual funds)
329. S. Prakesh Sethi, Investing in Socially Responsible Companies Is a Must for Public Pension Funds-Because There Is No Better Alternative, 56 J. Bus. Ethics 99, 101 (2005) (detailing relevant criteria for socially responsible investing). But these funds do not, at least of yet, screen for political spending.
330. Target Corporation, for example, faced heavy criticism for its decision to donate $150,000 to a Minnesota gubernatorial candidate who was an opponent of gay rights.
331. Jennifer Martinez & Tom Hamburger, Target Faces Investor Backlash, L.A. Times, Aug. 20, 2010, at A1 (reporting backlash against Target). Although Target representatives promised to review their "decision-making process for financial contributions in the public policy arena," id., that policy still explicitly allows Target to "provide financial support to political candidates, political parties or ballot initiatives" through its general treasury.
332. Target Corp., Civic Activity: Political Contributions, http://hereforgood.target.com/learnmore/civic-activity (on file with the Columbia Law Review) (last visited Jan. 26, 2012).
333. A handful of major corporations have policies precluding direct political contributions and expenditures-to both federal and state candidates and parties-from general treasury funds.
334. Bill de Blasio, Pub. Advocate for N.Y.C., Where Do The Largest Corporations in America Stand on Corporate Spending in our Elections?, http://advocate. nyc.gov/corporate-spending (on file with the Columbia Law Review) (last visited Jan. 26, 2012) (explaining Citizens United and outlining key corporations' stances on spending corporate treasury money in elections). Most of these corporations, however, maintain and
335. Ronald A. Cass, Money, Power, and Politics: Governance Models and Campaign Finance Regulation, 6 Sup. Ct. Econ. Rev. 1, 37 (1998) ("[Non-ideological campaign contributors] are indifferent between candidates so long as neither is openly hostile to their position. Indeed, they may well give money to opposing candidates.")
336. Tamara R. Piety, Against Freedom of Commercial Expression, 29 Cardozo L. Rev. 2583, 2616 n. 151 (2008) ("[A] desire for influence, not principles, surely explains why so many corporate donors regularly contribute to both parties.")
337. Vicki Kemper & Deborah Lutterbeck, The Country Club, Common Cause Mag., Spring/Summer 1996, at 17-18 (noting many businesses and corporations make "large contributions to both political parties to guarantee access, influence and agenda-setting power no matter who's in the White House or which party controls Congress").
338. The narrower the shareholder's objection, the more likely it is that she would find firms or funds suitable for investment. For example, if an investor objects only to the use of corporate assets to oppose abortion rights, there might be firms or funds willing to commit never to support a candidate that opposes those rights. As noted, though, this does not constitute an adequate alternative to shareholders with broader objections-the type of objections that the union security cases protect.
339. Sabrina Tavernise, Ohio Town Sees Public Job as Only Route to Middle Class, N.Y. Times, Mar. 16, 2011, at A19 (explaining substantial negative economic impact of public-sector union decline on middle class union employees).
340. Ronald A. Cass, Money, Power, and Politics: Governance Models and Campaign Finance Regulation, 6 Sup. Ct. Econ. Rev. 1, 37 (1998) ("[Non-ideological campaign contributors] are indifferent between candidates so long as neither is openly hostile to their position. Indeed, they may well give money to opposing candidates.")
341. Tamara R. Piety, Against Freedom of Commercial Expression, 29 Cardozo L. Rev. 2583, 2616 n. 151 (2008) ("[A] desire for influence, not principles, surely explains why so many corporate donors regularly contribute to both parties.")
342. Vicki Kemper & Deborah Lutterbeck, The Country Club, Common Cause Mag., Spring/Summer 1996, at 17-18 (noting many businesses and corporations make "large contributions to both political parties to guarantee access, influence and agenda-setting power no matter who's in the White House or which party controls Congress").
343. The narrower the shareholder's objection, the more likely it is that she would find firms or funds suitable for investment. For example, if an investor objects only to the use of corporate assets to oppose abortion rights, there might be firms or funds willing to commit never to support a candidate that opposes those rights. As noted, though, this does not constitute an adequate alternative to shareholders with broader objections-the type of objections that the union security cases protect.
344. Sabrina Tavernise, Ohio Town Sees Public Job as Only Route to Middle Class, N.Y. Times, Mar. 16, 2011, at A19 (explaining substantial negative economic impact of public-sector union decline on middle class union employees).
345. Ronald A. Cass, Money, Power, and Politics: Governance Models and Campaign Finance Regulation, 6 Sup. Ct. Econ. Rev. 1, 37 (1998) ("[Non-ideological campaign contributors] are indifferent between candidates so long as neither is openly hostile to their position. Indeed, they may well give money to opposing candidates.")
346. Tamara R. Piety, Against Freedom of Commercial Expression, 29 Cardozo L. Rev. 2583, 2616 n. 151 (2008) ("[A] desire for influence, not principles, surely explains why so many corporate donors regularly contribute to both parties.")
347. Vicki Kemper & Deborah Lutterbeck, The Country Club, Common Cause Mag., Spring/Summer 1996, at 17-18 (noting many businesses and corporations make "large contributions to both political parties to guarantee access, influence and agenda-setting power no matter who's in the White House or which party controls Congress").
348. The narrower the shareholder's objection, the more likely it is that she would find firms or funds suitable for investment. For example, if an investor objects only to the use of corporate assets to oppose abortion rights, there might be firms or funds willing to commit never to support a candidate that opposes those rights. As noted, though, this does not constitute an adequate alternative to shareholders with broader objections-the type of objections that the union security cases protect.
349. Sabrina Tavernise, Ohio Town Sees Public Job as Only Route to Middle Class, N.Y. Times, Mar. 16, 2011, at A19 (explaining substantial negative economic impact of public-sector union decline on middle class union employees).
350. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 805 (1945).
351. See generally Mark Barenberg, Democracy and Domination in the Law of Workplace Cooperation: From Bureaucratic to Flexible Production, 94 Colum. L. Rev. 753, 934 (1994) ("The employer may ban all other speech about workplace governance except during work breaks." (footnote omitted)).
352. See NLRA § 8(a)(5), 29 U.S.C. § 158(a)(5) ("It shall be an unfair labor practice for an employer ... to refuse to bargain collectively with the representatives of his employees ....").
353. See generally Catherine L. Fisk & Adam R. Pulver, First Contract Arbitration and the Employee Free Choice Act, 70 La. L. Rev. 47 (2009). The RLA imposes an analogous duty on carriers and unions "to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions." RLA § 2, 45 U.S.C. § 152.
354. See, e.g., NLRB v. Gen. Motors Corp., 373 U.S. 734, 737-38 (1963) (noting "congressional declaration of policy in favor of union-security contracts" and stating that said contracts are "mandatory subject as to which the Act obliged respondent to bargain in good faith"); NLRB v. Andrew Jergens Co., 175 F.2d 130, 133 (9th Cir. 1949) ("Union security is properly a 'condition of employment' within the meaning of § 9(a) of the National Labor Relations Act and hence, is within the statutory area of collective bargaining.").
355. See NRLA § 8(d), 29 U.S.C. § 158(d) (providing that obligation to bargain in good faith "does not compel either party to agree to a proposal or require the making of a concession"). The RLA rule is analogous. ABA Section of Labor and Employ. Law, The Railway Labor Act 350-51 (Michael E. Abram et al., eds., 2d ed. 2005).
356. See, e.g., H.K. Porter Co. v. NLRB, 397 U.S. 99, 108 (1970) ("[A]llowing the Board to compel agreement when the parties themselves are unable to agree would violate the fundamental premise on which the Act is based-private bargaining under governmental supervision of the procedure alone, without any official compulsion over the actual terms of the contract."); see also Ex-Cell-O Corp., 185 N.L.R.B. 107, 115 (1970) (criticizing present remedies as inadequately protecting employees' right to bargain).
357. While employees may attempt to enforce their own bargaining demands through economic pressure of various kinds, most prominently through strike action, employers maintain the right to permanently replace those workers who strike.
358. See NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 345 (1938) ("Nor was it an unfair labor practice to replace the striking employe[e]s with others in an effort to carry on the business.").
359. Clark, supra note 19, § 1.2, at 7-10
360. see also Frank H. Easterbrook & Daniel R. Fischel, Limited Liability and the Corporation, 52 U. Chi. L. Rev. 89, 89 (1985) ("Limited liability is a fundamental principle of corporate law.").
361. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 805 (1945).
362. See generally Mark Barenberg, Democracy and Domination in the Law of Workplace Cooperation: From Bureaucratic to Flexible Production, 94 Colum. L. Rev. 753, 934 (1994) ("The employer may ban all other speech about workplace governance except during work breaks." (footnote omitted)).
363. See NLRA § 8(a)(5), 29 U.S.C. § 158(a)(5) ("It shall be an unfair labor practice for an employer ... to refuse to bargain collectively with the representatives of his employees ....").
364. See generally Catherine L. Fisk & Adam R. Pulver, First Contract Arbitration and the Employee Free Choice Act, 70 La. L. Rev. 47 (2009). The RLA imposes an analogous duty on carriers and unions "to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions." RLA § 2, 45 U.S.C. § 152.
365. See, e.g., NLRB v. Gen. Motors Corp., 373 U.S. 734, 737-38 (1963) (noting "congressional declaration of policy in favor of union-security contracts" and stating that said contracts are "mandatory subject as to which the Act obliged respondent to bargain in good faith")
366. NLRB v. Andrew Jergens Co., 175 F.2d 130, 133 (9th Cir. 1949) ("Union security is properly a 'condition of employment' within the meaning of § 9(a) of the National Labor Relations Act and hence, is within the statutory area of collective bargaining.").
367. See NRLA § 8(d), 29 U.S.C. § 158(d) (providing that obligation to bargain in good faith "does not compel either party to agree to a proposal or require the making of a concession"). The RLA rule is analogous. ABA Section of Labor and Employ. Law, The Railway Labor Act 350-51 (Michael E. Abram et al., eds., 2d ed. 2005).
368. See, e.g., H.K. Porter Co. v. NLRB, 397 U.S. 99, 108 (1970) ("[A]llowing the Board to compel agreement when the parties themselves are unable to agree would violate the fundamental premise on which the Act is based-private bargaining under governmental supervision of the procedure alone, without any official compulsion over the actual terms of the contract.")
369. see also Ex-Cell-O Corp., 185 N.L.R.B. 107, 115 (1970) (criticizing present remedies as inadequately protecting employees' right to bargain). While employees may attempt to enforce their own bargaining demands through economic pressure of various kinds, most prominently through strike action, employers maintain the right to permanently replace those workers who strike.
370. See NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 345 (1938) ("Nor was it an unfair labor practice to replace the striking employe[e]s with others in an effort to carry on the business.").
371. Clark, supra note 19, § 1.2, at 7-10
372. see also Frank H. Easterbrook & Daniel R. Fischel, Limited Liability and the Corporation, 52 U. Chi. L. Rev. 89, 89 (1985) ("Limited liability is a fundamental principle of corporate law.").
373. Cass R. Sunstein, State Action Is Always Present, 3 Chi. J. Int'l L. 465, 465 (2002) [hereinafter Sunstein, State Action]. For Sunstein, the appropriate constitutional question is whether the state's allocation of rights to the employer-which allows the employer to discharge employees on the basis of race-passes muster.
374. Id. at 467-68
375. see also Gary Peller & Mark Tushnet, State Action and a New Birth of Freedom, 92 Geo. L.J. 779, 789 (2004) ("The state action doctrine is analytically incoherent because ... state regulation of so-called private conduct is always present, as a matter of analytic necessity, within a legal order.").
376. Lillian BeVier and John Harrison summarize the critics' views.
377. BeVier & Harrison, supra note 221, at 1774-85.
378. Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)
379. accord Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296 (2001).
380. It is unlikely that the government's facilitation of either union security clauses or corporations is sufficient to convert the actions of unions or corporations into state action under current Court doctrine
381. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 53 (1999) (explaining "subtle encouragement" does not rise to level of state action)
382. Blum, 457 U.S. at 1009-10 (finding regulated entity's response to government incentives "too slim a basis" to find state action)
383. cf. Brudney, Association, supra note 14, at 49 & n.126 (suggesting government's compulsion of payments of union dues does not rise to level of impermissibly controlled speech). We need not resolve that question here, however. The important point is simply that there is no basis to conclude that state action is present in the union context but not the corporate one.
384. This analysis applies most forcefully with respect to existing corporations. New firms could be incorporated with charters that imposed different rules regarding political spending.
385. See, e.g., Del. Code Ann. tit. 8, § 141 (2011)
386. CA, Inc., 953 A.2d at 232 (discussing scope of section 141).
387. Cass R. Sunstein, State Action Is Always Present, 3 Chi. J. Int'l L. 465, 465 (2002) [hereinafter Sunstein, State Action]. For Sunstein, the appropriate constitutional question is whether the state's allocation of rights to the employer-which allows the employer to discharge employees on the basis of race-passes muster.
388. Id. at 467-68;
389. see also Gary Peller & Mark Tushnet, State Action and a New Birth of Freedom, 92 Geo. L.J. 779, 789 (2004) ("The state action doctrine is analytically incoherent because ... state regulation of so-called private conduct is always present, as a matter of analytic necessity, within a legal order.").
390. Lillian BeVier and John Harrison summarize the critics' views. BeVier & Harrison, supra note 221, at 1774-85.
391. Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)
392. accord Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296 (2001).
393. It is unlikely that the government's facilitation of either union security clauses or corporations is sufficient to convert the actions of unions or corporations into state action under current Court doctrine.
394. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 53 (1999) (explaining "subtle encouragement" does not rise to level of state action)
395. Blum, 457 U.S. at 1009-10 (finding regulated entity's response to government incentives "too slim a basis" to find state action)
396. Brudney, Association, supra note 14, at 49 & n.126 (suggesting government's compulsion of payments of union dues does not rise to level of impermissibly controlled speech). We need not resolve that question here, however. The important point is simply that there is no basis to conclude that state action is present in the union context but not the corporate one.
397. This analysis applies most forcefully with respect to existing corporations. New firms could be incorporated with charters that imposed different rules regarding political spending.
398. See, e.g., Del. Code Ann. tit. 8, § 141 (2011)
399. CA, Inc., 953 A.2d at 232 (discussing scope of section 141).
400. Ry. Emps. Dep't v. Hanson, 351 U.S. 225, 232 (1956).
401. Hanson was decided in 1956, eight years after Shelley v. Kraemer-"[t]he most famous state action case of all." BeVier & Harrison, supra note 221, at 1798. In Shelley v. Kraemer, 334 U.S. 1 (1948), the Court held that judicial enforcement of a racially discriminatory real estate covenant constituted state action; Hanson cites Shelley as support for its state action holding. 351 U.S. at 232 n.4.
402. See Adolf A. Berle, Jr., Constitutional Limitations on Corporate Activity- Protection of Personal Rights from Invasion Through Economic Power, 100 U. Pa. L. Rev. 933, 942 (1952) ("The emerging principle appears to be that the corporation, itself a creation of the state, is as subject to constitutional limitations which limit action as is the state itself.")
403. Joseph L. Rauh, Jr., Civil Rights and Liberties and Labor Unions, 8 Lab. L.J. 874, 881 (1957) ("Whether Congress and the courts will ultimately treat labor organizations entirely as public bodies subject to all the requirements of due process placed upon the federal and the state governments remains to be seen. But there can be little doubt that the trend is in that direction ...."). However, Harry H. Wellington argues that although "commentators have suggested that all or most 'powerful' private groups should be subject to all or most provisions of the Constitution" and "[t]he business corporation and the labor union have been the principal targets of these suggestions," the "analytical shortcomings" of that view "are fatal," as the Constitution is not the appropriate tool for regulating powerful nonstate entities.
404. Harry H. Wellington, The Constitution, the Labor Union, and "Governmental Action," 70 Yale L.J. 345, 346, 348 (1961).
405. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 53 (1999)
406. Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). Thus, as Gillian Metzger has observed, "Hanson's reasoning is hard to square with recent state action cases."
407. Metzger, supra note 61, at 1468 n.349.
408. In any event, Hanson's reasoning is limited to the RLA; The NLRA does not preempt state laws prohibiting union security agreements, and so on its own terms Hanson does not reach beyond the airline and railroad industries.
409. NLRA § 10(b), 29 U.S.C. § 160(b) (2006).
410. Feldman, supra note 28, at 233-34 ("Beck is not a constitutional case, although it is certainly what might be called a 'constitutional values' decision."); Hartley, supra note 28, at 83 (discussing central role of constitutional values).
411. 468 U.S. 609, 633-37 (1984) (O'Connor, J., concurring). The case resolved whether the government can require private organizations to admit certain types of individuals to its membership.
412. Id. at 634.
413. 521 U.S. 457 (1997).
414. In any event, Hanson's reasoning is limited to the RLA; The NLRA does not preempt state laws prohibiting union security agreements, and so on its own terms Hanson does not reach beyond the airline and railroad industries. See NLRA § 10(b), 29 U.S.C. § 160(b) (2006).
415. See Feldman, supra note 28, at 233-34 ("Beck is not a constitutional case, although it is certainly what might be called a 'constitutional values' decision.")
416. Hartley, supra note 28, at 83 (discussing central role of constitutional values).
417. 468 U.S. 609, 633-37 (1984) (O'Connor, J., concurring). The case resolved whether the government can require private organizations to admit certain types of individuals to its membership
418. Id. at 634.
419. 521 U.S. 457 (1997).
420. In any event, Hanson's reasoning is limited to the RLA; The NLRA does not preempt state laws prohibiting union security agreements, and so on its own terms Hanson does not reach beyond the airline and railroad industries.
421. See NLRA § 10(b), 29 U.S.C. § 160(b) (2006).
422. See Feldman, supra note 28, at 233-34 ("Beck is not a constitutional case, although it is certainly what might be called a 'constitutional values' decision.")
423. Hartley, supra note 28, at 83 (discussing central role of constitutional values).
424. 468 U.S. 609, 633-37 (1984) (O'Connor, J., concurring). The case resolved whether the government can require private organizations to admit certain types of individuals to its membership.
425. Id. at 634.
426. 521 U.S. 457 (1997).
427. Election, 25 Lab. Stud. J. 3, 25 (2000) (noting union plays role as political educator). During the 2000 presidential campaign, for example, the AFL-CIO trained more than 1000 political "coordinators" to conduct election-related educational efforts among the federation's national membership. AFL-CIO, Executive Council Report 25 (2001), available at http://www.aflcio.org/content/download/7339/79027/version/1/file/2001ecr eport01.pdf (on file with the Columbia Law Review). The Federation also distributed more than 26,000,000 pieces of election-related literature at worksites and through the mail, and made approximately 8,000,000 phone calls to union households.
428. Chang, supra, at 56. The purpose of these educational efforts is to "stimulate discussion in the union of the candidates and issues and influence members' opinions and, ultimately, their vote choice."
429. There is some evidence that corporations are beginning to play a type of political-developmental role among their employees. In one of the more widely publicized examples, Wal-Mart managers held meetings with employees across the country during the 2008 presidential election to discuss then-candidate Obama's support for the Employee Free Choice Act-a bill that would have eased the rules for union organizing-and to encourage employees to help defeat that bill by, allegedly, voting against Obama's election.
430. Kris Maher & Ann Zimmerman, Unions Seek Probe of Wal-Mart over Election Law-At Issue Is Talk with Employees on Vote Impact, Wall St. J., Aug. 14, 2008, at A3
431. Ann Zimmerman & Kris Maher, Wal-Mart Warns of Democratic Win-Unions Stand to Gain from November Victory, Managers Around U.S. Are Told, Wall St. J., Aug. 1, 2008, at A1
432. see also Paul M. Secunda, Addressing Political Captive Audience Workplace Meetings in the Post-Citizens United Environment, 120 Yale L.J. Online 17, 19 & n.9 (2010), http://yalelawjournal.org/images/pdfs/887.pdf (on file with the Columbia Law Review) (collecting and analyzing other examples).
433. Clark, supra note 19, § 9.5.1, at 391-92
434. Stephen M. Bainbridge, Unocal at 20: Director Primacy in Corporate Takeovers, 31 Del. J. Corp. L. 769, 782-83 (2006) (noting "shareholders' widely divergent interests and distinctly different levels of information"). To the extent that shareholders engage in political advocacy vis-à-vis their corporations, moreover, such advocacy is far more likely to be in opposition to the corporation's policies than it is to be a product of corporate educational or political development efforts.
435. Jeffrey N. Gordon, The Mandatory Structure of Corporate Law, 89 Colum. L. Rev. 1549, 1575-76 (1989) (noting for all shareholders, even large public shareholders, "the individually rational course is to be uninformed" with respect to proposed amendments because of high costs of acquiring and disseminating information and low returns of informed vote).
436. Although it has not addressed the question in full, the Supreme Court has suggested that this is in fact the rule with respect to union dues.
437. See, e.g., Ellis v. Bhd. of Ry., Airline &S.S. Clerks, 466 U.S. 435, 451 (1983) ("If the union cannot spend dissenters' funds for a particular activity, it has no justification for spending their funds writing about that activity.").
438. Jack Fiorito, Gregor Gall & Arthur Martinez, Activism and Willingness to Help in Union Organizing: Who Are the Activists?, 31 J. Lab. Res. 263, 277-82 (2010)
439. Ed Snape & Tom Redman, Exchange or Covenant? The Nature of the Member-Union Relationship, 43 Indus. Rel. 855, 855-61 (2004) (surveying different approaches to defining "memberunion" relationship). For a detailed discussion of the history of the member-union relationship
440. see generally Rick Fantasia, Cultures of Solidarity (1988)
441. Steven Henry Lopez, Reorganizing the Rust Belt: An Inside Story of the American Labor Movement (2004).
442. NLRB v. Gen. Motors Corp., 373 U.S. 734, 742 (1963).
443. Shiffrin, supra note 264, at 853. In Rumsfeld v. FAIR, the Court rejected an attribution argument in a manner directly applicable here.
444. See 547 U.S. 47 (2006). In rejecting a First Amendment challenge to the Solomon Amendment-a law that requires universities to admit military recruiters to campus even if the military's hiring policies conflict with the university's nondiscrimination policies-the Court held that there was no risk that the military's policy on gays and lesbians would be attributed to a university who admitted military recruiters to campus. This was so because the university was legally required to admit the military to campus.
445. See, e.g., Erwin Chemerinsky, Why the Supreme Court Was Wrong About the Solomon Amendment, 1 Duke J. Const. L. & Pub. Pol'y 259, 267 (2006) ("[S]tudents surely could understand that schools were not endorsing the military or its exclusion of gays and lesbians."). As the Court explained, "We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy. Surely students have not lost that ability by the time they get to law school." Rumsfeld, 547 U.S. at 65. If students should be able to distinguish a university's own message from one imposed upon it, the relevant community should be able to distinguish a worker's own views and speech from the views of an organization that the worker is compelled to finance.
446. Bebchuk & Jackson, supra note 14, at 96, 113.
447. Id. at 96 (quoting Amendments to Rules of Shareholder Proposals, 63 Fed. Reg. 29,106, 29,108 (May 28, 1998)).
448. See, e.g., Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 581 (1995) (finding First Amendment violation where speech at issue was likely to be attributed to compelled speaker)
449. Pac. Gas & Elec. Co. v. Pub. Utils. Comm'n of Cal., 475 U.S. 1, 20-21 (1986) (same)
450. Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 87 (1980) (finding no constitutional violation where "[t]he views expressed by members of the public in passing out pamphlets or seeking signatures for a petition ... will not likely be identified with those of the owner").
451. See generally Abner S. Greene, (Mis)Attribution, 87 Denv. U. L. Rev. 833 (2010) (discussing attribution in First Amendment doctrine)
452. Gregory Klass, The Very Idea of a First Amendment Right Against Compelled Subsidization, 38 U.C. Davis L. Rev. 1087, 1120 (2005) ("[T]he sina qua non of a First Amendment compelled speech problem is a strong likelihood that the compelled message will be associated with the person required to carry it.").
453. Abood, for example, never mentions attribution. Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977)
454. see also Greene, supra note 281, at 839 ("Because the assessed persons don't have to say anything or carry anyone's message, and because the private group's ideological speech doesn't identify the assessed persons by name, there is no obvious route to misattribution.")
455. Post, Compelled Subsidization, supra note 30, at 223-24 (discussing Abood).
456. See, e.g., Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 557 (2005) (distinguishing between "true 'compelled-speech' cases, in which an individual is obliged personally to express a message he disagrees ... and 'compelled subsidy' cases, in which individual is required by the government to subsidize a message he disagrees with, expressed by a private entity").
457. See Post, Compelled Subsidization, supra note 30, at 218 ("[W]henever subsidizing objectionable speech puts an individual in the position of appearing to endorse that speech[,] ... claims of compelled subsidization of speech merge into claims of compelled speech.").
458. Claims of compelled subsidization of speech-which lack an attribution element-are assessed according to what Post calls the "Symmetry Principle": If the state may not restrict the right of individuals to pay for the speech of another, then the state may not require that individuals pay for that speech either.
459. Id. at 220-21. Abood, as we have seen, is adjudicated on these grounds. Abood relies on Buckley's holding that contributions "to an organization for the purpose of spreading a political message" are protected by the First Amendment and then concludes that "the fact that the [employees] are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement on their constitutional rights." 431 U.S. at 234-35 (citing Buckley v. Valeo, 424 U.S. 1 (1976)). Where the symmetry principle is in play-where constitutional protection for funding the speech in question implies that compelled subsidization of the speech is impermissible-there is harm to the funder's speech interests whether or not the speech might also be attributed to the compelled funder.
460. Post, Compelled Subsidization, supra note 30, at 223.
461. See Citizens United v. FEC, 130 S. Ct. 876, 905 (2010).
462. See Post, Compelled Subsidization, supra note 30, at 218 ("[W]henever subsidizing objectionable speech puts an individual in the position of appearing to endorse that speech[,] ... claims of compelled subsidization of speech merge into claims of compelled speech.").
463. Claims of compelled subsidization of speech-which lack an attribution element-are assessed according to what Post calls the "Symmetry Principle": If the state may not restrict the right of individuals to pay for the speech of another, then the state may not require that individuals pay for that speech either.
464. Id. at 220-21. Abood, as we have seen, is adjudicated on these grounds. Abood relies on Buckley's holding that contributions "to an organization for the purpose of spreading a political message" are protected by the First Amendment and then concludes that "the fact that the [employees] are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement on their constitutional rights." 431 U.S. at 234-35 (citing Buckley v. Valeo, 424 U.S. 1 (1976)). Where the symmetry principle is in play-where constitutional protection for funding the speech in question implies that compelled subsidization of the speech is impermissible-there is harm to the funder's speech interests whether or not the speech might also be attributed to the compelled funder.
465. Post, Compelled Subsidization, supra note 30, at 223.
466. See Citizens United v. FEC, 130 S. Ct. 876, 905 (2010). affirmatively opt into such use. Even with respect to unions that afford opt-out rights, the premise of the union security cases is that the opt-out rights granted to employees ensure that all dues available for political use are paid voluntarily for this purpose. On this assumption, the limitation still in place on unions resembles fairly closely the limitation that the Court has invalidated with respect to corporations.
467. Citizens United v. FEC, 130 S. Ct. 876, 897 (2010). According to Citizens United, the ability to fund election expenditures through a PAC is not sufficient to satisfy the First Amendment for two reasons. One is that a PAC is a distinct entity from the corporation-a "separate association"-and so allowing the PAC to speak does not permit the corporation or union to speak. Id. This concern is not applicable here: When the union spends treasury money on politics, even though that money must come only from voluntary contributions, the union is itself still speaking. But the Court's concern with administrative and regulatory burdens is quite apposite.
468. Nielsen v. Int'l Ass'n of Machinists, Local Lodge 2569, 94 F.3d 1107, 1116 (7th Cir. 1996)
469. see also Garden, supra note 103, at 43 (noting opt-out rule and PAC reporting requirements are "similarly burdensome")
470. Daniel G. Helton, Beck and the National Labor Relations Board: An Analysis of Agency Fee Objection Law and a Suggested Approach for the Board, 1990 Detroit C. L. Rev. 633, 634-35 (describing opt-out rule as imposing "unpredictable and labyrinthine administrative procedures")
471. Robert Pear, Bush Attacks Way Unions Are Using Nonmembers' Fees, N.Y. Times, Apr. 12, 1992, at A1 (quoting general counsel of International Association of Machinists as stating opt-out plan would impose "a tremendous burden" on unions)
472. Frank Swoboda, Union Security Clauses at Risk in Challenge to Dues, Wash. Post, May 19, 1991, at H2 (reporting unions' estimate of Beck's compliance costs in "millions of dollars").
473. Commc'ns Workers of Am. v. Beck, 487 U.S. 735, 745 (1988)
474. Cal. Saw & Knife Works, 320 N.L.R.B. 224, 233 (1995).
475. California Saw, 320 N.L.R.B. at 237-39.
476. See, e.g., Chi. Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 310 (1986) ("[T]he constitutional requirements for the Union's collection of agency fees include an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker, and an escrow for the amounts reasonably in dispute while such challenges are pending.")
477. California Saw, 320 N.L.R.B. at 233 (requiring that nonmembers have rights "(1) to object to paying for union activities not germane to the union's duties as bargaining agent ... (2) to be given sufficient information to enable the employee to intelligently decide whether to object; and (3) to be apprised of any internal union procedures for filing objections").
478. Ellis v. Bhd. of Ry., Airline & S.S. Clerks, 466 U.S. 435, 443-44 (1984)
479. United Food & Commercial Workers Locals 951 (Meijer, Inc.), 329 N.L.R.B. 730, 754 (1999).
480. See Emp't Standards Admin., U.S. Dep't of Labor, Form LM-2 Labor Organization Annual Report (2003) (requiring detailed account of union's finances).
481. Citizens United v. FEC, 130 S. Ct. 876, 899 (2010).
482. This is not to assume or imply that there is a monolithic "corporate viewpoint"- there is not. But there are occasions when a significant percentage of corporate speakers coalesce around a certain policy position, and that policy position often conflicts with the union view. Indeed, this explains the successful fundraising efforts-and subsequent political spending-of organizations like the Chamber of Commerce.
483. See, e.g., Winkler, supra note 12, at 931 (noting Court has "unhesitatingly equated unions and corporations"); see also supra note 1 (collecting cases)
484. Because the union opt-out rule is established by federal law, individual state interventions could not achieve complete symmetry. But states-Delaware, in particular- could make significant progress in this direction.
485. 130 S. Ct. at 911
486. see also Bebchuk& Jackson, supra note 14, at 114 (citing Citizens United).
487. See Brudney, Business Corporations and Stockholders' Rights, supra note 13, at 259-60, 271-74.
488. Brudney discusses the possibility of a "rebate" for shareholders, but does not endorse it. Id. at 272-73.
489. Bebchuk & Jackson, supra note 14, at 115
490. Abood v. Detroit Bd. of Educ., 431 U.S. 209, 235-36 (1977)
491. see also Int'l Ass'n of Machinists v. Street, 367 U.S. 740, 770 (1961) ("Our construction therefore involves no curtailment of the traditional political activities of the railroad unions. It means only that those unions must not support those activities, against the expressed wishes of a dissenting employee, with his exacted money.").
492. See Bebchuk & Jackson, supra note 14, at 115-17
493. Mallory makes a similar suggestion. Mallory, supra note 14, at 37-38. In the union context, the opt-out right extends to lobbying expenses that are not "related to collective bargaining." Seidemann v. Bowen, 584 F.3d 104, 114-15 (2d Cir. 2009);
494. see also Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507, 519 (1990) (holding objectors may be charged only for lobbying directed toward "legislative ratification of, or fiscal appropriations for, [a] collective bargaining agreement").
495. A symmetrical opt-out rule for shareholders would therefore extend to some types of corporate lobbying expenses, with the exception of lobbying that could be deemed analogous to union efforts "related to collective bargaining." Seidemann, 584 F.3d at 114. Again, the specific types of lobbying expenses covered by the union opt-out rule is still the subject of dispute, see supra note 97, and thus the question of which corporate lobbying expenditures would be covered by a symmetrical rule also remains to be determined.
496. Among the institutional design issues to be resolved is whether or how opt-out rights could be exercised by short-term owners of a corporation's stock. One possibility would be to grant opt-out rights only to shareholders who own the stock for some period of time-one year, for example. Given that many investors hold their shares through mutual funds, an opt-out mechanism also would have to be designed for mutual funds. One relatively straightforward possibility would involve investors informing the fund that they wish to exercise their opt-out right in each corporation where the fund invests the investors' money. The fund would then aggregate the opt-outs of its investors and exercise them each time it invested in a corporation. The corporations would return the pro rata share of planned political expenditures to the fund as a dividend, and the fund would either return that money to the investor or reinvest the money.
497. Chi. Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 306-07 (1986).
498. One possible objection to the opt-out mechanism is that many shareholders would exercise the opt-out right on the view that the dividend would be worth more to them than their share of the projected value of the corporation's political expenditures. As such, without the ability to condition investment on support for the corporation's political spending, the corporation's ability to fund its political program would be compromised by a free rider problem. Whether or not
499. Under current law, corporations do not have an obligation to pay dividends to shareholders at any set time or based on any particular set of financial circumstances. See generally United States v. Byrum, 408 U.S. 125, 140-41 (1972) (discussing board of directors' "broad discretion" in awarding dividends). As such, a political opt-out right that took the form of a mandatory dividend would be novel in U.S. law. Nonetheless, mandatory dividend payments are a feature of corporate law in multiple foreign jurisdictions, and are understood as justified where shareholder control rights are otherwise weak.
500. Ilya Beylin, Tax Authority as Regulator and Equity Holder: How Shareholders' Control Rights Could Be Adapted to Serve the Tax Authority, 84 St. John's L. Rev. 851, 887-88 & n.137 (2010). Accordingly, providing the control mechanism of a mandatory dividend could be justified given that, under current corporate law rules in the United States, there is "no role for shareholders" in corporate political spending decisions.
501. Bebchuk & Jackson, supra note 14, at 87.
502. This is not to suggest that any particular approach to achieving symmetry would necessarily survive a First Amendment challenge. Although the Citizens United Court explicitly leaves the door open to regulatory alternatives to spending restrictions, Citizens United v. FEC, 130 S. Ct. 876, 911 (2010), the Court could reject those alternatives if and when presented with the question.
503. See Democracy Is Strengthened by Casting Light on Spending in Elections Act, H.R. 5175, 111th Cong. (2010) (regulating federal elections spending by, inter alia, "establish[ing] additional disclosure requirements with respect to spending in such elections")
504. accord Democracy Is Strengthened by Casting Light on Spending in Elections Act, S. 3628, 111th Cong. (2010) (identical language). The bill passed in the House, but was filibustered on both attempts to bring it to a vote in the Senate
505. Richard Briffault, Two Challenges for Campaign Finance Disclosure After Citizens United and Doe v. Reed, 19 Wm. Mary Bill Rts. J. 983, 986 & n.27 (2011).
506. Employees who object to political expenditures are often classified as "nonmembers" by the unions to which they pay dues. See, e.g., Commc'ns Workers of Am. v. Beck, 487 U.S. 735, 738 (1988) (describing objectors as "dues-paying nonmember employees")
507. Cal. Saw & Knife Works, 320 N.L.R.B. 224, 231 (1995) ("nonmember employees"). Such nonmembers maintain the right to demand, and then vote in, elections to certify or decertify the union to which they must pay those dues-they can participate in the decision, that is, to vote a union in or out. But unions, while certified, often deny nonmembers the right to vote in elections of union officers. Where this is the case, shareholders will possess a formal right that nonmember employees give up when they exercise their opt-out; namely, the right to elect the governing body that makes decisions regarding political spending. As corporate law commentators have noted, however, the ability of shareholders to exercise control over the firm through such franchise rights is markedly limited
508. See generally Bebchuk, Myth, supra note 205 (describing obstacles to shareholder control). In addition to these particular problems, voting rights cannot protect objectors from the obligation to fund political speech when those objectors constitute a minority-even a very large minority-of the electorate. Indeed, if voting rights were sufficient to alleviate the problem of compelled political funding, the entire regime of union opt-out rights would be unnecessary: The right to vote in union elections would have sufficed. Finally, objecting employees can always choose to claim their voting rights and participate in union governance in the manner that shareholders participate in corporate governance, a choice employees can exercise by forgoing the political opt-out. Nevertheless, while symmetry is not achieved by granting voting rights to shareholders and opt-out rights to employees, if opt-out rights are extended to shareholders, symmetry might also call for internal voting rights to be extended to nonmember employees who pay dues to a union.
509. Harry H. Hutchison, Reclaiming the Labor Movement Through Union Dues? A Postmodern Perspective in the Mirror of Public Choice Theory, 33 U. Mich. J.L. Reform, 447, 465-66 (2000).
510. In Arkansas, for example, with some exceptions, "all state employees ... shall become members of the Arkansas Public Employees' Retirement System as a condition of employment," Ark. Code. Ann. § 24-4-301 (2011), while participation in the Florida Retirement System is "compulsory for all ... employees," with specified exemptions, Fla. Stat. § 121.051 (2011), and in Pennsylvania "[m]embership in the system shall be mandatory ... for all State employees" outside certain categories, 71 Pa. Cons. Stat. § 5301 (Supp. 2005). An appendix containing the legislation from each of the forty-four states is on file with the author.
511. See U.S. Bureau of Labor Statistics, U.S. Dep't of Labor, National Compensation Survey: Employee Benefits in the United States, March 2010, at 354-55 tbl.3 (2010), available at http://www.bls.gov/ncs/ebs/benefits/2010/ebbl0046.pdf (on file with the Columbia Law Review) (surveying pension plan contribution requirements for state and local government workers)
512. Keith Brainard, Nat'l Ass'n of State Ret. Adm'rs, Public Fund Survey Summary of Findings for FY 2008, at 12 (2009), available at http://www.publicfundsurvey.org/publicfundsurvey/pdfs/Summary_of_Finding s_FY08.pdf (on file with the Columbia Law Review) ("Nearly all employees of state and local government are required to make contributions to defray the costs of their retirement benefit."). All states in which membership is a condition of employment also make contributions a mandatory condition of employment.
513. See generally Edward A. Zelinsky, The Defined Contribution Paradigm, 114 Yale L.J. 451, 455-58 (2004) (contrasting defined contribution plans and defined benefit plans).
514. Susan J. Stabile, Paternalism Isn't Always a Dirty Word: Can the Law Better Protect Defined Contribution Plan Participants?, 5 Emp. Rts. & Emp. Pol'y J. 491, 494 (2001) (describing defined benefit pension plans as those in which "a trustee or other fiduciary appointed by the employer makes the decision how to invest ... contributions to grow the trust").
515. U.S. Census Bureau, Table 4a(1). Cash and Investment Holdings of State and Local Public Employee Retirement Systems by State and Level of Government: Fiscal Year 2008, http://www.census.gov/govs/retire/2008ret04a-1.html (on file with the Columbia Law Review) (last revised Mar. 11, 2010); U.S. Census Bureau, Table 4a(3). Cash and Investment Holdings of State and Local Public-Employee Retirement Systems by State and Level of Government: Fiscal Year 2008, http://www.census.gov/govs/retire/2008ret04a-3.html (on file with the Columbia Law Review) (last revised Mar. 23, 2010).
516. Eric John Finseth makes a related argument about the voting of shares by public pension funds.
517. See generally Eric John Finseth, Shareholder Activism by Public Pension Funds and the Rights of Dissenting Employees Under the First Amendment, 34 Harv. J.L. & Pub. Pol'y 289 (2011). His claim, entirely consistent with the argument here, is that Abood and its progeny give public employees a First Amendment right to "opt out of having their pro rata portion of shares of publicly traded corporations held by public pension funds voted with respect to political or ideological matters in a manner with which the dissenting employees disagree."
518. Id. at 293. Thus, while Finseth's argument pertains to the votes of the shares held by the pension fund, the argument here is with respect to the political spending of the corporations in which the funds invest.
519. See, e.g., Stabile, supra note 324, at 493-94 (describing operation of defined benefit pension plans).
520. Finseth, supra note 326, at 317. Editorial, A Free Speech Landmark, Wall St. J., Jan. 22, 2010, at A18.