A freshly aired audio recording in which Mitt Romney asks business owners to talk with employees about the upcoming election sounds at first like a throwback to the bad old days of voter clientelism. That's the term academics use for the time-honored American practice of trading something nice for political support.
Voters used to be able to get a shot of whiskey or a pair of boots. Now, in the era of expanding corporate rights, you might just get a half-promise not to be fired – as long as you vote the right way.
Romney was speaking on a conference call that was sponsored by the National Federation of Independent Businesses, as part of a series that had previously featured Newt Gingrich, Rick Perry and Michele Bachmann. He had been talking about why Barack Obama is bad for business. Then he encouraged employers to "make it very clear to your employees" how they feel about the presidential race:
I hope you make it very clear to your employees what you believe is in the best interest of your enterprise and therefore their job and their future in the upcoming elections. And whether you agree with me or you agree with President Obama, or whatever your political view, I hope — I hope you pass those along to your employees. Nothing illegal about you talking to your employees about what you believe is best for the business, because I think that will figure into their election decision, their voting decision and of course doing that with your family and your kids as well.
The recording, which was first spied by In These Times, has generated consternation on the left. It came to light in the same week that Mike Elk of In These Times reported that the Koch brothers, David and Charles, had sent 45,000 employees packets containing actual lists of candidates supported by Koch Industries. At the top of the list of approved candidates was Mitt Romney.
Is it legal to do this? On the conference call, Romney went out of his way to say that it is, when he said: "Nothing illegal about you talking to your employees..."
Romney has drawn a similar distinction in describing his strategy for paying taxes, saying: "I pay all the taxes that are legally required and not a dollar more." In Romneyland, legal compliance is a lofty moral paradigm.
Romney also happens to be right: bosses can talk to employees about whom to vote for. Corporations can send political mailings to employees. And since the 2010 Citizens United Supreme Court decision, corporations appear to have new freedom to force employees to attend political events like the Romney rally in Beallsville, Ohio, in which coal miners were forced to appear as campaign props.
Citizen United's generous interpretation of corporate speech means that employers "may now be able to compel their employees to listen to their political views at [workplace] meetings on pain of termination," wrote Paul Secunda, an associate law professor at Marquette University, in the Yale Law Journal. "Although federal law does still prevent employers from issuing explicit or implicit threats against employees who vote for the 'wrong' candidate, short of that, nothing prohibits employers from requiring employees to participate in one-sided political propaganda events."
Employees have little real-life protection from aggressive attempts by employers to sway their votes, Secunda said in a phone interview Thursday.
"Workers are facing a constant stream of political pressure, 16 hours a day, a stream of literature," he said. "This stuff has always taken place, especially in the blue-collar workplace. It's generally legal."
The federal voter intimidation statute, which makes it illegal to "intimidate, threaten, or coerce" voters, is rarely called on to protect workers, he said.
"The devil's in the details," Secunda said. "What does it mean to 'intimidate' as far as preventing the right to vote? An express type of threat? Some of these more implicit types of power dynamics don't explicitly meet this high standard."
Some states have their own voter intimidation laws, Secunda said, but a paucity of relevant case law indicates a low level of enforcement.
"Employers are pretty much able to do what they want as far as putting pressure on employees to vote against a certain candidate," he said.
Secunda said a new "Federal Worker Freedom Act" was needed, to prohibit employers from engaging in mandatory political indoctrination. A new law could comply with Citizen United's broad interpretation of corporate speech, he said.
"The focus is not on employers' speech," Secunda said. "You can't interfere with that. The focus would be on regulating employer conduct."
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