James David Nelson (University of Houston Law Center) has posted Corporations, Unions, and the Illusion of Symmetry (Virginia Law Review, Vol. 102, No. 8, 2016) on SSRN. Here is the abstract:
Prominent corporate and labor law scholars claim that corporations and unions should be treated symmetrically when it comes to spending money on ideological activities. Citizens United v. FEC recognized this symmetry in one respect, by holding that both corporations and unions can spend unlimited amounts of money on politics. But Citizens United ignored the fact that dissenting employees have a right to avoid paying for union spending with which they disagree, while dissenting shareholders have no such right. Sensing that the Supreme Court might expand union dissenters’ rights in Friedrichs v. California Teachers Ass’n, these scholars intensified their calls for legal reform to bring the disparate treatment of corporations and unions into line.
This Article argues against the idea of moving towards greater union-corporate symmetry. The strength of arguments for symmetry depends on accurately identifying the principle underlying dissenters’ rights. On this score, existing accounts propose several candidates—from the idea that it is illegitimate to use power in the economic sphere to achieve goals in the political sphere, to the view that dissenters should not suffer misattribution of ideological beliefs, to claims about the corruption that comes from using other people’s money for political speech. But none of these principles hold up to scrutiny.
In their place, this Article argues—on both doctrinal and normative grounds—that dissenters’ rights are best seen as grounded in concerns for individual freedom of conscience. It then shows how the freedom-of-conscience principle undermines the case for union-corporate symmetry. The structure of modern corporations—and in particular the nature of modern capital markets—severs the link between shareholders’ wallets and their consciences. And when compared to the direct connection between dissenting employees and unions, threats to shareholder conscience are remote. Recognizing this fundamental difference between corporations and unions provides reason to be skeptical of various arguments for legal reform based on appeals to symmetry and clears the way for more persuasive claims to take their place.