Through pension funds to corporate donations, speech may be compelled and anonymous.
In 2010′s Citizens United ruling, the Supreme Court said unlimited spending on elections by corporations was a constitutional right to free speech. Perversely, through public pensions, this ruling may lead to “compelled speech,” which is expressly forbidden by the First Amendment.
Just how, exactly, did this happen? According to the New York Times, public sector employees are forced to give a certain portion of their paychecks into a public pension system. That pool of money is then used, without their say, as an investment in some $1.15 trillion in corporate securities. Citizens United now allows those funds to be used to finance political speech which those may disagree with, resulting in a form of compelled speech.
What is more, corporate donations are often anonymous, even to shareholders, who technically own the company. This means that those who fund these corporations don’t even know whether or not they support the political causes their money is going to:
Contrast this situation with how the court treats political spending by unions. In many states, public employees are required to pay dues to a labor union. If the public employees union were to spend any of the money raised through dues on politics, the court has ruled, the dues requirement would amount to forced political speech and association. To prevent this First Amendment violation, the court has held that no union may use an employee’s dues for political purposes if the employee objects.
This judicial discrepancy is a wide open hole in First Amendment rights enforcement which the courts must address, according to Harvard Law Professor Benjamin Sachs:
Whatever the route to reform, however, public pension plans need to ensure that employees are not compelled to finance corporate political speech. Until they do, these pension funds will be vulnerable to the challenge that they are violating the First Amendment.
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