First Amendment

Government Workers' Pension Contributions May Violate Their Free Speech Rights, Law Prof Says

The Citizens United decision finding that corporations have a First Amendment right to support political candidates has had a “perverse” effect, according to a law professor.

That’s because corporations are financing political spending partly with funds acquired from stock purchases by public employee pension funds, violating the government workers’ free speech rights, according to Harvard law professor Benjamin Sachs.

Writing in the New York Times, Sachs says most government workers are required to make contributions to defined benefit plans in which they have no say over investment of their funds. The money is heavily invested in corporate securities, funding the corporations and their political speech.

“Requiring public employees to finance corporate electoral spending amounts to compelled political speech and association,” Sachs writes, “something the First Amendment flatly forbids.” He sees the situation as analogous to union cases in which public employees can’t be compelled to support union political speech with their union dues.

He suggests one possible fix: “Pension plans would determine the number of employees that object to financing corporate political spending. They would then negotiate ‘opt out’ rights with the corporations in which they invest. These corporations would calculate the percentage of their annual expenditures that go to politics and promise to return to the pension plan an amount equal to the objecting employee’s pro rata share of the corporation’s political budget.”

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