After yesterday’s decision in McCutcheon v. FEC, where the Supreme Court found that aggregate contribution limits violate the First Amendment, campaign finance is back in the spotlight. In October, when the Court heard oral arguments for McCutcheon, I wrote about why I thought Shaun McCutcheon should prevail and why “rumors of democracy’s death are greatly exaggerated.” Others apparently still believe the rumors.
Something else this week delivered grist for the mill, as the country considers how political causes ought to be funded. Mozilla, the nonprofit foundation responsible for the Firefox browser and other open-source ventures, promoted Brendan Eich to CEO last week. California law required the public report of Eich’s 2008 contribution to the campaign to pass Proposition 8, the ballot measure amending the state constitution to prohibit same-sex marriage. Prop 8, of course, eventually gave rise to the Supreme Court’s decision last term in Hollingsworth v. Perry. Eich’s financial support of Prop 8 has now given rise to a slew of woes for Eich and Mozilla.
Half of Mozilla’s board members quit, protesting a CEO with a history of activism against same-sex marriage. Some Firefox app developers decided to boycott Firefox projects until Eich is removed from his position. Twitter has been, well, atwitter with criticism.
Then, earlier this week, the dating site OkCupid rerouted all of its users accessing its site from a Firefox browser to a message that began, “Hello there, Mozilla Firefox user. Pardon this interruption of your OkCupid experience. Mozilla’s new CEO, Brendan Eich, is an opponent of equal rights for gay couples. We would therefore prefer that our users not use Mozilla software to access OkCupid.” The message goes on to read, “Equality for gay relationships is personally important to many of us here at OkCupid. But it’s professionally important to the entire company. OkCupid is for creating love. Those who seek to deny love and instead enforce misery, shame, and frustration are our enemies, and we wish them nothing but failure.”
OkCupid’s arrow struck deep. What Eich now faces raises questions about political expression and association, laws requiring disclosure of political contributions, and the consequences of both….
First, OkCupid illustrated this week how businesses and organizations can and do speak politically. OKC’s message wasn’t about the Firefox product, nor was it about Mozilla’s commercial activity. The guys at OKC felt strongly enough about their own values about same-sex marriage and gay rights that they wanted to express their condemnation of anyone who they perceived to oppose their values. They did what political actors in a democracy are supposed to do: they responded to speech they didn’t like with their own speech.
This demonstration is important in a time when fundamental concerns about if and how organizations express their values is subject to heated debate. Many Americans, including the president, scoff at the holding in Citizen’s United v. FEC that corporations, associations, and labor unions enjoy certain First Amendment protections. The Obamacare contraception mandate cases before the Supreme Court now, Hobby Lobby and Conestoga, press the issue of whether RFRA entitles for-profit corporations to rights of religious freedom. Even the simple notion that corporations are capable of holding and expressing political or religious values strikes many people as counter-intuitive, even farcical. OkCupid’s passionate move this week reminds us how this looks in practice.
Second, Brendan Eich’s situation shows how donor disclosure laws can lead to reprisals that may change the legal analysis. Eich didn’t purposefully publicize his views on Prop 8. California law required the disclosure of his identity as a contributor — donating the princely sum of $1,000.
In Buckley v. Valeo, the Supreme Court held that laws mandating the public disclosure of political contributions were constitutional because of the government’s overwhelming interests in preventing corruption, informing voters, and assisting in the enforcement of other permissible campaign finance laws. But the Court has also held that disclosure laws might be unacceptable where someone could demonstrate “only a reasonable probability” that publicly reporting donors’ names “will subject them to threats, harassment, or reprisals from either Government officials or private parties.” The Court noted in Brown v. Socialist Workers Committee that, “In some instances fears of reprisal may deter contributions to the point where the movement cannot survive. The public interest also suffers if that result comes to pass, for there is a consequent reduction in the free circulation of ideas both within and without the political arena.”
If you were a business leader, would you watch Eich’s travails and then go and donate even a modest sum to a controversial political cause? How chilled would your speech feel?
There are ways to get round disclosure rules for savvy political actors, such as the shield of 501(c) groups. However, the average citizen contributing will have her political association publicly exposed. So, the rules probably won’t do much to deter corruption, but they will do much to chill legitimate political expression and civic engagement.
Third, Eich’s woes may prefigure some scary possibilities for how employees and employers relate to one another. Eich did not contribute to the Prop 8 cause in his capacity as a Mozilla executive. Only the legal requirement that donors disclose the names of their employers uncovered the connection. No one claims that Eich’s leadership or policy decisions at Mozilla evince hostility toward gays and lesbians, nor that he has used his professional position as a platform for his personal political views. Yet, the fallout covers, not only Eich as an individual, but also thousands of Mozilla employees. And Brendan Eich’s job security is not a real safe bet as a result.
If we hold companies and organizations responsible for the social views of their employees, employers will have greater grounds for intruding on the private lives and political activities of their employees. This would be so even when employees themselves don’t seek to publicize their connection to the employer, as was the case with Eich. If the employer suffers because of an employee’s private political participation, though, can you blame the company for either squelching its workers’ activism or vetting its workers’ stances on controversial issues?
Again, the bitter cold you might feel right about now is the chilling effect on speech.
I would vote for same-sex marriage, given the chance, though I see the complexity of the legal questions surrounding the issue. Nonetheless, rightly or wrongly, a majority of California voters originally supported Prop 8. So, Brendan Eich was in pretty good (or at least pretty numerous) company when he supported the measure. He was not then a radical outlier. He’s issued statements about inclusiveness at Mozilla since then. The outcry over Eich reveals more about how far we have to go before our intuitions about political speech match up with campaign finance laws than it does about Eich’s fitness as a CEO.
UPDATE (5:00 p.m.): Eich stepped down as CEO of Mozilla earlier today.
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at firstname.lastname@example.org