The fight over Proposition 32 here in California is attracting enormous financial contributions from both supporters and opponents. There is no question its passage could signal a sea change in California politics. However, California voters should be offended by the outright lies opponents of the measure have been proclaiming in their commercials and billboards around the state. There is little question that portions of the law should be enacted. However, other portions of the law may be unconstitutional and, taken all together, may insert far too much uncertainty to be effective. There are ample grounds to question the proposition without resorting to deception and misrepresentation.
According to the official summary, Proposition 32 establishes the following:
1. Prohibits unions from using payroll-deducted funds for political purposes. Applies same use prohibition to payroll deductions, if any, by corporations or government contractors.
2. Permits voluntary employee contributions to employer-sponsored committee or union if authorized yearly, in writing.
3. Prohibits unions and corporations from contributing directly or indirectly to candidates and candidate-controlled committees.
4. Other political expenditures remain unrestricted, including corporate expenditures from available resources not limited by payroll deduction prohibition.
5. Prohibits government contractor contributions to elected officers or officer-controlled committees.
The prohibition against using payroll deductions for political purposes should be enacted. The text of the law provides that unions may continue to use payroll deductions for political purposes if the employee approves the use in writing and renews that approval every year.
The current law is unacceptable and must be changed. Employee payroll deductions for union dues can be used for political purposes, even if an employee may disagree with the purpose. Republicans and conservatives who belong to unions are regularly forced to contribute to Democrat candidates and causes by way of paying their union dues. The worst iteration of this system is the public employee unions. After all, the money paying those employees is taxpayer money. So, you have taxpayer money paid to public employees being used to influence the politicians who make decisions about pay and benefits for those same public employees.
In addition, California is not a “right to work” state. This means that employees must join a union in order to work for a unionized employer. Employees do not have the ability to “opt out” of union membership in order to avoid contributing to candidates and causes with which they disagree. If a law was proposed to allow political parties to take deductions from voters’ bank accounts in order to fund their activities, there would be no end to the outcry. Yet, this is what unions do every day – taking the hard earned pay of employees to fund their political activities. This is nothing less than a gross violation of the First Amendment rights of all union employees.
Some criticisms have been directed at the fact the law applies only to unions, corporations and government contractors, claiming other business entity forms are not affected. This is a misleading criticisms because employers are not generally permitted to take payroll deductions except for particular purposes, such as withholding taxes and employee-paid benefits. Union dues are part of those exceptions. While the law might be clearer if it used the term “employer” rather than “corporation,” the distinction would make no difference in the operation of the law.
The more troubling part of the law is the prohibition of direct contributions by corporations and unions to candidates or candidate-controlled committees. This seems like a great idea; finally, unions and corporations will not be able to manipulate politicians. However, this provision is probably unconstitutional because the U.S. Supreme Court has already decided the right to free speech extends to associations of individuals, which does include corporations and would probably include unions. While contributions may be limited in order to prevent such contributions from giving improper power to the contributor, a total prohibition is likely unconstitutional.
In contrast, the prohibition against contributions by government contractors to elected officials who award them contacts is probably constitutional as it is intended to prohibit outright corruption in the awarding of contracts. However, quid pro quo contributions are already illegal. Moreover, this provision is easy to get around, by contributions to a party or a political colleague, for example. Also, since elected officials are rarely directly involved in awarding government contracts, the provision appears to be a solution in search of a problem or, at least, has only a very narrow application.
Contrary to the advertisements opposing the measure, there are no special exemptions. Corporations, and employers in general, are not allowed to raise money for political purposes from employee deductions an more than labor unions are. Similarly, corporations are not allowed to make contributions to candidates or candidate-controlled entities, the same as unions. The claim that the proposition carves out special exemptions for anyone is simply false.
There is little question the proposition may reduce union influence politically, it will also reduce corporate influence. That is the intent of the proposition. What opponents of the proposition, mostly unions, are really worried about is their main method of raising money for political purposes is payroll deductions. They take the money and they do what they want. It is easy and efficient.
However, the proposition does not eliminate the ability of unions to raise money or give it to candidates. The unions can still collect money from employees and bundle the contributions, a common practice in campaign financing today. The only difference is that contributions from the employees must be voluntary. In other words, it may require a little extra effort and organization (and money), but unions will continue to have an enormous influence in Sacramento.
On the corporate side, corporations, and other business entities, will still be able to exert influence through political advertising directly to voters, consistent with recent court precedents.
Ultimately, Proposition 32 seems like a good idea. Unless, of course, you support unions, and corporations continuing to manipulate politicians and the political system, effectively leaving California at the mercy of wealthy political interests while the rest of us just hope for the best. The question voters must answer is whether the benefits of an aggressive and well-intentioned, but possibly flawed, attempt at reform outweigh the problems of continuing with the burdens of the already well-known flaws of the “status quo.”