Sunlight is the Best Disinfectant: Public Disclosure of Electoral Advocacy in Union Member Communications

Abstract

In United States v. CIO (1948), the Supreme Court held that the statutory ban on direct union spending in federal elections could not be applied to electoral advocacy by leaders of an organization to the members of that organization. As a result, federal and state laws now generally exempt such internal communications from the definition of expenditure under campaign finance laws. Then, in its landmark 2010 decision Citizens United v. FEC, the Supreme Court declared the ban on direct corporate campaign spending itself unconstitutional. The Federal Election Commission soon thereafter announced the ruling would also apply to unions. There is now no doubt that an organization such as a union or a corporation may directly spend money on electoral advocacy. Given this framework, this Note argues that internal communications between the leaders of an organization – in particular, a union – and its members that directly advocate for or against the election of a particular candidate can and should be subject to mandated public disclosure.