New Political Disclosure Law

A new report describes some of the changes that the Massachusetts Legislature made to our commonwealth’s campaign finance laws after the decisions in SpeechNow.org v. FEC and Citizens United v. FEC. Most of the changes will come into force next January, but some are already in effect.

The report highlights some of the “remedies,” as the Office of Campaign and Political Finance (OCPF) calls them,  including the new requirement that some people who help pay for certain political advertisements must reveal their names. By way of an Act Relative to Campaign Finance Disclosure and Transparency, the Legislature amended General Laws Chapter 55, Section 18G so that any entity that makes an independent expenditure* in a political campaign (including a ballot-question campaign) has to publicly list the people who contributed $5,000.00 or more. This is one of the changes that has immediate effect, so it applies to the current state election campaign.

Compulsory-disclosure advocates such as Common Cause say that the goal is to help voters make “informed decisions,” prevent wealthy individuals from “secretly influencing” elections, and “hold corporations accountable.” It is no secret that people like Tom Steyer, Michael Bloomberg, George Soros, and the Koch brothers, spend large amounts of money on political campaigns; nor is it a secret that these big-dollar interventions are themselves subject of political debate and non-profit advocacy.

Prior to the new law, Massachusetts voters could already learn which organizations were making independent expenditures. For example, OCPF’s winter 2013 newsletter (page 2) explained that in the 2012 state elections the biggest independent-spender was none of the afore-mentioned billionaires, but rather the Massachusetts Teachers Association, closely followed by another union, SEIU 1199. One result of revised compulsory-disclosure law is that Massachusetts voters will promptly know the identities of some of the individuals — the ones who spend ≥$5,000 — behind the independently-funded political ads that precede Election Day.

Voters may well find it helpful to know who is paying for a particular piece of political propaganda. After all, show me who a man’s friends are, and I will tell you who he is, as Ralph Waldo Emerson said (I think). But compulsory-disclosure laws have come in for criticism not only because they arguably favor incumbents but also because of the way some organizations use the information to target and intimidate individuals who disagree with them, individuals such as Scott Eckern and Marjorie Christoffersen. Indeed, as this article in The Nation makes clear, the very purpose of “outing” donors is to apply public pressure so as to “shame them and hurt business” until they “stay on the sidelines” at election time. Given this explicit objective of chilling speech, it seems likely that opponents will challenge the constitutionality of the latest version of the compulsory-disclosure law in court.

*An independent expenditure is where people promote or oppose a candidate or cause independently, i.e. not by making a campaign contribution to a candidate or ballot-question committee.

Justin Sargent 1
Peter Vickery, Esq.

Right’s attack on NLRB continues

Employees and small business owners alike in Western Massachusetts need to know whether the current controversy around the National Labor Relations Board (NLRB) will affect their legal rights. The source of the uncertainty is the recent decision in Noel Canning v. NLRB, which involved a dispute between a Pepsi-Cola bottling and distribution company and the union representing the plant employees, Teamsters Local 760. Filing amicus briefs in support of the company were House Speaker John Boehner, Senate Republican Leader Mitch McConnell, and the Landmark Legal Foundation.

john-boehner-mitch-mcconnell
Speaker Boehner and Leader McConnell

The NLRB ruled in favor of the union, but on appeal United States Court of Appeals reversed the decision. Why? The court said that the NLRB’s order was void because it had no quorum. And why did the court say there was no quorum? Because it held that President Obama’s three recess appointments to the NLRB were invalid. The court agreed with the Republicans leaders who had argued that when President Obama made the appointments the Senate was in session rather than in recess.

Somewhat more absorbing than the recondite issue of when a recess is not really a recess is the question of how this became a contested issue in the first place. Spoiler alert: The answer involves large amounts of money.

Many of the people who are going after the NLRB are also attacking climate science. It’s no secret that ultra-conservatives fund climate-change denialists. To its credit, the Landmark Legal Foundation is quite candid about its opposition to the “extreme environmental groups” that spread “global warming hype” and receive Environmental Protection Agency (EPA) grants. Under the moniker Greenwatch, the foundation provides a handy database for concerned conservatives that “identifies the location, leadership and membership of each profiled group.”

But if you happen to be an anti-green sleuth trying to follow the money from the EPA to the Vast Climate Change Conspiracy, don’t pin your hopes on the Greenwatch database. Its keyword search couldn’t even locate any EPA grantees with the words “green” or “climate” in their names. You’d be better offer using the EPA’s own grant site or (almost needless to say) Google.

Greenwatch’s funders include the Charles G. Koch Charitable Foundation and the Scaife Family Foundations. I learned this from Right Wing Watch, a project of People for the American Way. Presumably I could turn to Left Wing Watch or Secular Humanist Watch if I wanted to uncover the names and faces behind People for the American Way. Alternatively I could just read the organization’s Form 990, which it posts online.

But why are the Charles G. Koch Charitable Foundation and the Scaife Family Foundation helping pay for the courtroom assault on the NLRB?

Irking the people who write the checks for the Landmark Legal Foundation are decisions like Hispanics United of Buffalo. In that case, the employer fired workers who had engaged in an online discussion about their job performances. One worker had been critical, and others responded. The NLRB sided with the employees. It ruled that the workers were “taking group action to defend themselves against the  accusations they could reasonably believe [the critical employee] was going to make to management.” So in preparing to engage in mutual aid and protection, their Facebook comments constituted “concerted activity” within the meaning of the National Labor Relations Act, Section 7.

The NLRB’s Hispanics United decision set “a low threshold” for concerted activity, to the chagrin of attorneys who work on the employer side of the aisle. So the company, with help from the Republican congressional leadership plus the Koch and Scaife foundations, challenged the legitimacy of the NLRB itself. Now they and their allies contend that the Court of Appeals decision in Noel Canning casts doubt on all the NLRB’s recent decisions, which they characterize as “pro-Bog Labor rulings,” e.g. Hispanics United.

So what does all this mean for workers and small business owners in Western Massachusetts? First, it’s important to bear in mind that the National Labor Relations Act (NLRA) does not cover all workers. Non-federal public employees in Massachusetts are covered by the state equivalent of the NLRA (M.G.L. c. 150E), as are some unionized employees in the private sector (M.G.L. c. 150A). So the Hispanics United and Noel Canning decisions, which interpret federal law, do not have a direct effect on these workers.

Second, most private-sector employees in this part of the world are at-will. Union members are in the minority. Employers can fire at-will employees for no reason, so long as the underlying purpose is not discriminatory or retaliatory. For my short video on this subject, just click here.

Third, focusing on situations like Hispanics United where employees are communicating online about their rights at work, several different state laws may offer varying degrees of protection. For example, the Right-to-Know Law (M.G.L. c. 111F) protects workers who work with toxic or hazardous substances. Employers that punish employees for exercising their rights under this statute could face suit in Superior Court. If workers use Facebook to discuss whether they should refuse to work unless the employer complies with the applicable regulations (450 CMR 21.00) would the employer be free to terminate them? That would be a very risky decision on the employer’s part.

Similarly, the state’s whistleblower law (M.G.L. c. 149, S. 185) is supposed to safeguard any employee who “discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or of another employer with whom the employee’s employer has a business relationship, that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law, or which the employee reasonably believes poses a risk to public health, safety or the environment.” The statute also protects employees who object to policies and practices of that kind. If at-will employees organized their whistleblowing via Facebook, could their employer fire them? Again, that would be a very risky decision.

While keeping in mind that we should never post online anything we would not be happy reading on the front page of the newspaper, we should not let the Noel Canning case chill legitimate online discussions about workplace health and safety and the environment. After all, that is precisely what the people behind the Landmark Legal Foundation and Greenwatch would like.