Steelworkers v. Sadlowski, 457 U.S. 102 (1982)

JUSTICE WHITE, with whom THE CHIEF JUSTICE, JUSTICE BRENNAN, and JUSTICE BLACKMUN join, dissenting.

The question before us is what Congress intended when, in 1959, it passed § 101(a)(2), the Bill of Rights provision of the LMRDA. That question is best answered by identifying the problem that Congress intended to solve by adopting the provision. The answer, in turn, is not at all difficult to discover. After long and careful examination and hearings dealing with the labor union movement, Congress found that, too often, unions were run by entrenched, corrupt leaders who maintained themselves and discouraged challenge by any means available, including violence and threats.{1} As Senator McClellan explained:

[T]he records of our committee’s investigations show over and over again that a rank-and-file member dare not risk any opposition to a corrupt or autocratic leadership. If he does so, he may be beaten, his family threatened, his property destroyed or damaged, and he may be forced out of his job -- all of these things can happen and have happened.

105 Cong.Rec. 6472 (1959), 2 NLRB Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 1098 (1958) (Leg.Hist.). And again:

Members had better not offer any competition. They had better not seek election. They had better not aspire to the presidency or the secretaryship, or they will be expelled or disciplined.

105 Cong.Rec. 6478 (1959), 2 Leg.Hist. 1104.

This was the problem that Congress meant to solve. As Senator McClellan stated, its goal was to end

autocratic rule by placing the ultimate power in the hands of the members, where it rightfully belongs, so that they may be ruled by their free consent, may bring about a regeneration of union leadership. I believe the unions should be returned to those whom they were designed to serve; they should not be left to the hands of those who act as masters.

105 Cong.Rec. 6472 (1959), 2 Leg.Hist. 1099.

What Congress then did was to guarantee the union member’s right to run for election, § 401(e), and to guarantee him freedom of speech and assembly. § 101(a)(2). There is no question, and the Court concedes as much, that the Act created statutory protection for the union member’s right effectively to run for union office. Without doubt, § 101(a)(2) was not only aimed at protecting the member who speaks his mind on union affairs, even if critical of the leadership, but was also "specifically designed to protect the union member’s right to seek higher office within the union." Hall v. Cole, 412 U.S. 1, 14 (1973). The LMRDA was a major effort by Congress "to insure union democracy." S.Rep. No. 187, 86th Cong., 1st Sess., 2 (1959). The chosen instrument for curbing the abuses of entrenched union leadership was "free and democratic union elections." Steelworkers v. Usery, 429 U.S. 305, 309 (1977). The abuses of "entrenched union leadership" were to be curbed, among other means, by the "check of democratic elections." Wirtz v. Hotel Employees, 391 U.S. 492, 499 (1968). These elections were to be modeled on the "political elections in this country." Wirtz v. Hotel Employees, supra, at 504; Steelworkers v. Usery, supra, at 309.

The member’s right to run for office and to speak and assemble was to be subject to reasonable union rules, but the reasonableness of a particular rule must surely be judged with reference to the paradigmatic situation that Congress intended to address by guaranteeing free elections: a large union with entrenched, autocratic leadership bent on maintaining itself by fair means or foul. We do not by any means suggest that the USWA had or has the characteristics that led to the enactment of § 101(a)(2), but it is clear that the section should be construed with reference to those unions with the kind of leadership that caused the congressional response. Such a leadership is not only determined to discourage opposition; it also has at its disposal all of the advantages of incumbency for doing so, including the facilities of the union. Those leaders have normally appointed the union staff, the bureaucracy that makes the union run. The staff is dependent upon and totally loyal to the leadership. It amounts to a built-in campaign organization that can be relied upon to make substantial contributions and to solicit others for more. Such a management is in control of the union’s communication system, and has immediate access to membership lists and to the members themselves. Obviously, even if the incumbents eschew violence, threats, or intimidation, mounting an effective challenge would be a large and difficult endeavor. And if those in office are as unscrupulous as Congress often found them to be, the dimensions of the task facing the insurgent are exceedingly large. But Congress intended to help the members help solve these very difficulties by guaranteeing them the right to run for office and to have free and open elections in the American tradition.

It is incredible to me that the union rule at issue in this case can be found to be a reasonable restriction on the right of Edward Sadlowski, Jr., to speak, assemble, and run for union office in a free and democratic election. The scope and stringency of the rule cannot be doubted. It forbids any candidate for union office and his supporters to solicit or accept financial support from any nonmember. The candidate cannot accept contributions from members of his family, relatives, friends, or well-wishers unless they are members of the union. Retired members such as Edward Sadlowski, Sr., may not contribute; neither may members not in good standing. Even a fully secured loan from a nonmember with a standard rate of interest is forbidden under the rule. The rule goes even further. It forbids the acceptance of "any other direct or indirect support of any kind from any nonmember," except an individual’s volunteered personal time.{2} The regulations issued under the rule clearly show that the union intends to prohibit, as far as it is within its power to do so, all nonmember contributions on behalf of a member running for union office. These regulations specify:

[W]hen prohibited support is contributed, there will be a presumption that it was accepted by the candidate or his or her supporters, unless they have taken affirmative steps in good faith to dissuade the non-member from providing such support and have taken action to correct the effects of the prohibited support.

App. 494.{3} A candidate unable to rebut this presumption may be disqualified, fined, suspended, or expelled. This is a Draconian rule. How could any candidate "correct the effects of the prohibited support"? The rule thus goes far beyond the limitations on contributions approved in Buckley v. Valeo, 424 U.S. 1 (1976), and severely limits expenditures as well. The candidate may actually be denied his statutory right to run for office because nonmembers have exercised their own First Amendment rights.

The impact of the rule with respect to Edward Sadlowski, Sr., illustrates the rigor of the rule. It prohibits him from contributing to the campaign of Edward Sadlowski, Jr., even though the elder Sadlowski is the father of the candidate, was a charter member of the USWA, remained a member for 32 years prior to his retirement, and receives a USWA pension, the terms of which are negotiated by USWA’s officers.

Restrictions such as this are a far cry from the free and open elections that Congress anticipated, and are wholly inconsistent with the way elections have been run in this country. The Court has long recognized the close relationship between the ability to solicit funds and the ability to express views. "[W]ithout solicitation, the flow of . . . information and advocacy would likely cease." Village of Schaumburg v. Citizens for Better Environment, 444 U.S. 620, 632 (1980).See also Schneider v. State, 308 U.S. 147 (1939); Cantwell v. Connecticut, 310 U.S. 296 (1940); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 761 (1976); Bates v. State Bar of Arizona, 433 U.S. 350, 363 (1977).

In Thomas v. Collins, 323 U.S. 516 (1945), the Court held that the First Amendment barred enforcement of a state statute requiring a permit before soliciting membership in any labor organization. Solicitation and speech were deemed to be so intertwined that a prior permit could not be required. The Court conceded that the "collection of funds" might be subject to reasonable regulation, but concluded that such regulation "must be done and the restriction applied, in such a manner as not to intrude upon the rights of free speech and free assembly." Id. at 540-541.

Specifically with regard to elections and campaign financing, the Court observed in Buckley v. Valeo, supra, at 19:

A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event.

(Footnote omitted.) Thus, as the Court of Appeals recognized in this case,

"contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy."

207 U.S.App.D.C. 189, 197, 645 F.2d 1114, 1122 (1981), quoting 424 U.S. at 21.

It goes without saying that running for office in a union with 1.3 million members spread throughout the United States and Canada requires a substantial war chest if the campaign is to be effective and to have any reasonable chance of succeeding. Attempting to unseat the incumbents of union office is a substantial undertaking. As we noted in Steelworkers v. Usery, 429 U.S. at 311, there is no permanent opposition party within the union. There is only a one party system consisting of the union’s incumbent officers and hired staff, all controlled from the top down.

[T]he full-time officers collectively, under the direction of the top officer, constitute the sole political machine for the preservation of their offices and power.

J. Edelstein & M. Warner, Comparative Union Democracy 39 (1979). The union involved in this case has some 30 elected positions, its president appoints more than 1,500 office and field staff, and salaries and expenses for union personnel in 1978 totalled over $37 million. App. 141.

Thus, in the best of circumstances, the role of the challenger is very difficult. And if one keeps in mind that Congress intended to give the challenger a fair chance even in a union controlled by unscrupulous leaders with an iron grip on the staff and a willingness to employ means both within and without the law, it is wholly unrealistic to confine the challenger to financial support garnered within the union. Surely, Congress never intended that a union should be permitted to impose such a limitation. As Clyde Summers, a recognized authority in this field, stated in this case on behalf of Sadlowski:

Opposition candidates customarily finance their campaigns in the first instance out of their own pockets and out of loans or gifts from friends. They get contributions from sympathetic union members, but at the beginning they may have few open supporters, and they do not have a large organization to solicit contributions. They have to do enough publicizing and campaigning to make themselves appear as a viable candidate before they begin to get support from any substantial number of members. Even then, the individual contributions of members is inevitably small. Seldom is it enough to mount a really substantial campaign, and it is almost never enough to match the resources of the incumbents.

Id. at 156.

In my opinion, the practical effect of prohibiting all contributions to union election campaigns except those made by union members would be to gravely damage, if not destroy, the possibility of democratic elections in unions, particularly in large local unions and in international unions. . . .

If opposition groups are barred from getting any help from the outside, they can, in most situations, have no hopes of mounting an effective campaign.

Id. at 160.{4}

In addressing itself to union elections, Congress forbade union and employer contributions, but went no further in restricting contributions or expenditures to or on behalf of union candidates for office. The majority emphasizes that Congress was concerned about the control of unions by outsiders, and asserts that the challenged rule serves the congressional purpose. It is true, as Senator McClellan explained, that

impositions and abuses . . . have been perpetrated upon the working people of many of our States by the thugs who have muscled into positions of power in labor unions and who masquerade as labor leaders and as friends of working people. . . .

105 Cong.Rec. 6470 (1959), 2 Leg.Hist. 1097. But the remedy which he proposed and which was adopted was to end "autocratic rule by placing the ultimate power in the hands of the members," 105 Cong.Rec. 6472 (1959), 2 Leg.Hist. 1099, and by giving them sufficient statutory protection to participate in a fair election to unseat an entrenched leadership.

Yet the majority somehow finds the absolute, unbending, no-contribution rule to be a reasonable regulation of a member’s right to seek office and of the free and open elections that Congress anticipated. This in spite of the availability of other means to satisfy the union’s legitimate concerns about outsiders controlling their affairs through those whose campaigns they have financed. A requirement of disclosure of all contributions, together with a ceiling on contributions, would avoid outside corruption without trampling on the rights of members to raise reasonable sums for election campaigns. Such rules would honor both purposes of the legislation: protecting against outside influence and empowering members to express their views and to challenge established leadership. As I see it, the rule at issue contradicts the values the statute was designed to protect, and thwarts its purpose.

I respectfully dissent.

1. The Court of Appeals in this case summarized these findings:

Prior to the enactment of the LMRDA in 1959, the Select Senate Committee ferreted out widespread corruption, dictatorship and racketeering in a number of large international unions. The Committee found that the President of the Bakery and Confectionary [sic] Workers’ International Union of America had "railroaded through changes in the union constitution which destroyed any vestigial pretenses of union democracy." Select Committee Report [S.Rep. No. 1417, 85th Cong., 2d Sess.] 129 [1958]. It reported that Dave Beck, General President of the International Brotherhood of Teamsters,

shamefully enriched himself at [the] expense [of the union members], and that, in the final instance, he capitulated to the forces within the union who promoted the interests of racketeers and hoodlums.

Id. at 84. The Committee likewise found Teamster officials joining with others to take over illegal gambling operations with an "underworld combine," id. at 38-39, and the top officers of the United Textile Workers of America avariciously misappropriating union funds, id. at 159. "Democracy [was] virtually nonexistent" in the International Union of Operating Engineers, because the union was ruthlessly dominated through "violence, intimidation and other dictatorial practices." Id. at 437. Practices in the Teamsters "advanced the cause of union dictatorship." Id. at 444. The Committee cited other similar instances of widespread abuses in its 462-page Report.

207 U.S.App.D.C. 189, 199, 645 F.2d 1114, 1124 (1981) (footnote omitted).

2. The regulations specify:

"Financial Support" means a direct or indirect contribution where the purpose, object or foreseeable effect of the support is to influence the election of a candidate. Financial support includes, but is not limited to:

1. Contributions of money, securities, or any material thing of value;

2. Payments to or subscription for fund raising events of any kind (e.g., raffles, dinners, beer or cocktail parties and so forth);

3. Discounts in the price or cost of goods or services, except to the extent that commercially established discounts are generally available to the customers of the supplier;

4. Extensions of credit, loans, and other similar forms of finance, except when obtained in the regular course of business of a commercial lending institution and on such terms and conditions as are regularly required by such institutions; and

5. The payment for the personal services of another person, or for the use of building or office space, equipment or supplies, or advertisements through the media.

App. 492. The regulations also explain that

[e]xamples of indirect support from nonmembers would include the contribution of cash to a member who in turn makes a contribution to a candidate; the donation of travel expenses, printing services, office supplies, office space, or of clerical, secretarial, or professional services used by a non-member in conjunction with his or her own volunteered service to a candidate; the distribution of election materials with the aid of a volunteer’s paid staff; and the procuring of discounts.

Id. at 494.

3. The regulation continues:

In such cases where prohibited support has been contributed, it is the candidate’s obligation to contact immediately the non-member contributor, reject the prohibited support, return the contribution, insist that such support be discontinued, and take whatever action on his own or her own, or as directed by the Committee, may be necessary to eliminate any impact on the election. Full reports must be made to the Committee promptly.

Id. at 495.

4. The following is a summary of other relevant views presented by Mr. Summers, id. at 152-160:

Incumbents in unions elections have four crucial advantages:

First, and most important, they have control of the paid staff of representatives or business agents who provide the backbone of the incumbents’ political organization. The paid staff owe their jobs to the officers, take orders from the officers, and can be dismissed by the officers. . . . Second, the incumbent officers have control of the union newspaper. There is no such thing as a free and independent press within the union. . . . Third, the incumbents have ready access to members.

They have immediate access to names, addresses and telephone numbers of union members.

The law requires equal access to membership lists, but there is no practical equality when the incumbent administration includes the secretary treasurer of the union. Fourth, the officers have access to legal services, at the union’s expense.

These advantages are critical when one considers the financing of union election campaigns. . . . [T]he incumbent officers have a paid built-in campaign organization in the paid staff representatives. . . . In short, the incumbents can run a campaign with little or no money,

while the opposition must have substantial funds even to get started. For incumbents, the largest single source is the paid staff, and it is quite unrealistic to expect opposition candidates to obtain substantial support from staff representatives who are contributing to those to whom they owe their jobs. Incumbents also raise funds from union members, and in doing so, they have a marked advantage over insurgent candidates. Incumbents also raise funds through testimonial dinners given in their honor. Opposition candidates cannot successfully match this effort.

Union candidates’ acceptance of money and other help from sources outside the union is a common and accepted practice. . . . Up until the last two years, no one, and I would emphasize no one, seriously suggested that there was anything inappropriate about union candidates soliciting financial support from non-members. . . . Union constitutions placed no such restrictions on such contributions. . . . Only within the last two years has the Steelworkers placed such a restriction in its constitution, and this seems to be part of an effort of the administration to void any effective challenge by an opposition candidate in the future.