FEC Deadlocks Over Employer Political Coercion
By Justin Miller | May 25, 2016
Last week, the Federal Election Commission deadlocked over whether to investigate allegations that coal baron Robert Murray coerced employees at his company, Murray Energy Corporation, into making campaign contributions. It’s a move that watchdogs warn will give the green light to workplace political coercion, which experts say is on the rise.
The case stems from a complaint filed by Citizens for Responsibility and Ethics in Washington (CREW) alleging that Murray Energy coerced its salaried employees to contribute to the company’s PAC. Sources within the company had alleged that their year-end bonuses depended on their levels of political giving.
FEC staff had advised the commission that there was a strong case for enforcement, based on evidence that included internal company documents reportedly showing that the company told managers, “We have been insulted by every salaried employee who does not support our efforts.” Staff members recommended that the commissioners find that Murray and his company’s PAC had violated federal election law by "coercing Murray Energy employees to make contributions to federal candidates and participate in fundraising activities supporting federal candidates."
When the commission finally voted on whether to take action last week, the FEC split along party lines, with the three Democratic commissioners voting in favor of investigation, and the three Republican commissioners voting against action. FEC rules bar the agency from taking action unless a majority of commissioners agree. It’s just the latest in a long list of FEC disputes that have ended in stalemates and inaction—involving everything from complaints over super PAC coordination with campaigns to nonprofits’ political activity, straw donations to LLCs, and end-runs around contribution limits.
“This case of political coercion in the workplace reverberates beyond the realm of U.S. elections," the three Democratic commissioners declared in a statement. “It goes to the very core of the relationship between employer and employee. Every citizen should feel free to give—or not to give—to the candidates and political causes of their choice, inspired by their own convictions, and free from outside pressure or coercion.”
The three Republican commissioners didn’t comment on the case. Election law observers called the stalemate a troubling sign that is eerily similar to the FEC’s past failure to issue clear guidance on the proper use of LLCs for political purposes.
“With the dismissal of the Complaint and nothing more heard from the agency,” wrote Democratic election lawyer Bob Bauer, former Obama White House counsel, “the regulated community has a fresh signal of either Commission paralysis on an issue of central importance, or of ominous possibilities now available to employers in soliciting political contributions from their eligible managerial ranks.”
It’s not the first time Murray has been accused of pushing the boundaries of election laws barring employers from coercing workers to follow their political agendas. Murray is an ardent opponent of President Obama, whom he accuses of waging a “war on coal,” and Murray and his company contributed hundreds of thousands of dollars to 2012 Republican presidential candidate Mitt Romney. In 2012, an Ohio grassroots group filed a complaint with the FEC alleging that Murray had forced his company’s miners and their families to attend a Romney rally. Last year the commission dropped its investigation into that complaint.
The FEC’s latest stalemate over Murray comes at a time when political coercion by employers appears to be on the rise. As political scientist Alex Hertel-Fernandez wrote in the Prospect last year, as many as one in four employees have been contacted by their managers about voting, political candidates, or public policies and political issues.
The Supreme Court’s 2011 Citizens United decision not only cleared the way for corporations to spend unlimited amounts on campaigns from their own treasuries; it also emboldened managers to require employees to attend meetings about politics, or even specific candidates, a study by Hertel-Fernandez concluded. On top of that, there are no federal labor protections for employees who are fired or punished for refusing to participate in an employer’s political agenda. As Hertel-Fernandez wrote, technology has also helped corporations amplify their political voice: “A company might now launch a mobilization effort with a series of emails to workers, then call virtual town-hall video forums, and finally ask workers to visit a website to send employer-written messages to their elected officials.”
Even if the FEC continues to punt on coercion enforcement and not clarify the rules with future guidance, there are other steps reform advocates can take. As Hertel-Fernandez has noted, Congress currently prohibits PACs from collecting anything of value using “physical force, job discrimination, financial reprisals, or the threat of force, job discrimination, or financial reprisal … or as a condition of employment.” By simply altering the statute’s language to include corporations, Congress could legally protect employees from political coercion.
States could also follow the leads of Oregon and New Jersey, which have recently passed laws that prohibit employers from “discharging, disciplining, or penalizing employees who decline to participate in employer-sponsored activities or communications about religious or political issues.”
Hertel-Fernandez links the rise of employers’ political coercion to workers’ collective loss of power and voice on the job, and predicts that this will make the issue a growing priority for progressive organizers. “Resistance to political coercion is a concern common to the civil-rights and labor traditions,” he writes. “Efforts to curb employer political intimidation could remind Americans that the quality of democracy in the workplace has direct bearing on the quality of democracy at the ballot box.”