Some more insight into whether Wal-Mart has violated federal election law

If you’ve read our FEC complaint by now, you’ll be familiar with our contention that at its training sessions, Wal-Mart was explicitly advocating against the election of Democratic candidates this coming November because of its fear of possible unionization in the future. You’ll also be familiar with our contention that Wal-Mart is limited, under both the United States Code and the U.S. Code of Federal Regulations, from directing its political meetings or “trainings” at anything beyond its stockholders and executive or administrative personnel. Certainly, the issue is serious enough to warrant a looksee from the Federal Election Commission - now that multiple labor groups have sent a complaint of their own, similar to the one submitted by Wal-Mart Watch last week, we’ll see if the FEC decides to initiate an investigation.

If that does happen, attorney Bob Bauer has been helpful enought to give a brief guide on the federal regulations involved - you might want to read it in shifts, as staring too long at federal regulatory language has been known to cause eyes to bleed, etc. Bauer is the Chair of the Political Law Group of Perkins Coie LLP, and the author of numerous books including: United States Federal Election Law (1982, 1984), Soft Money Hard Law: A Guide to the New Campaign Finance Law (2002) and More Soft Money Hard Law: The Second Edition of the Guide to the New Campaign Finance Law (2004).

The Wal-Mart Matter [posted August 14, 2008]

The Wal-Mart controversy, now headed toward the Federal Election Commission, presents interesting questions about how the campaign finance laws treat coercive political conduct by a corporate employer.  As the allegations have been framed in press reports, Wal-Mart is claimed to have breached two requirements for lawful corporate political action:  (1) it spent corporate funds outside the limited allowances for election-related speech, and (2) it did so through coercive means, subjecting employees to job-related pressures to support one candidate or party rather than another.

FEC rules specify in fair detail when and how corporations may spend resources in relation to federal elections without breaking the core campaign spending prohibition.  11 C.F.R. Part 114.  The most liberal of the allowances is for “partisan” communications to the “restricted class,” of executives and shareholders, and a corporation may also repeatedly solicit them for contributions to the company’s political action committee.  It can arrange for the candidates favored by the company to address this defined group.

But the rules also specify that, where an activity is permitted, it cannot, in material part, be conducted “coercively.” For example, a company must inform solicitees that contributions to its PAC are voluntary, with no adverse impact on employment to follow from the decision not to give.  11 C.F.R. § 114.5(a), (a)(4).  If a candidate makes an appearance, at the company’s invitation, to its shareholders and senior executives, the company through its management can “suggest” to those present that they consider making a contribution, but the company can play no role in collecting it.  11 C.F.R. § 114.3(c) (2)(iii).

There are similar restrictions on companies urging employees to contribute to a candidate fundraising event that it is supporting under the agency “facilitation” rules.  11 C.F.R. § 114.2(f).  A company can collaborate in the planning and conduct of the event, so long as the expenses are borne by the candidate and any corporate costs, such as for a an auditorium or catering services, are paid by the candidate in advance.  But the company cannot direct, by express or implied “detrimental job action,” its employees to become contributors to such an event.  11 C.F.R. § 114.2(f)(2)((iv).

Protections against coercive fundraising also apply to the limited fundraising permitted within the non-executive class.  Companies cannot generally solicit these employees for contributions to their PACs, except under a special provision for “twice-yearly” solicitation that must be managed under special custodial arrangements designed to protect the identity of donors who either decline to give, or who give $50 or less, or in the aggregate $200 or less, in a calendar year.  11 C.F.R. § 114.6 Candidates can appear at events before all company employees, provided that all competing candidates are afforded this same opportunity, but at those events, where the non-executive class of employees are present, the corporation cannot solicit or even “suggest” that contributions be made.  11 C.F.R. § 114.4(b)(iv).

So the primary thrust of the federal law in controlling coercion is in the sphere of fundraising.  The issues of coercion and of simply illegal campaign spending merge somewhat more indistinctly when a corporation funds federal election-related communications, without a fundraising theme or purpose, to employees who are not within the executives ranks.  A corporation is given room, but limited room, to supply at its expense election-related information to its employees as a whole or to the general public.  Specific allowances, to which conditions are attached, permit companies to arrange for parties and candidates to speak to its employees, and to fund for unrestricted distribution the publication of voting and registration information, and of regulated forms of “voter guides.” 11 C.F.R. § 114.4.

But the conditions are essentially ones requiring neutrality:  the corporate sponsor of these communications is supposed to provide the information without passing onto advocacy of either candidates or parties.  This is reflected, for example, in the provisions prohibiting corporate support for candidate fundraising at all-employee candidate appearances, or in the content restrictions on the preparation of corporate-sponsored “voter guides,” which may not include express advocacy of parties or candidates and must extend space, if offered to candidates for their own commentary, on an unedited and impartial basis.  11 C.F.R. § 114.4(c)(5)

This is the legal framework within which the claims against Wal-Mart will be evaluated.  At bottom, the charge is one of the expenditure of corporate resources for a prohibited political purpose:  communications with employees that do not fall within any of exemptions detailed in the federal rules.  Adding to the hazards of this case for Wal-Mart, however, is the undercurrent of regulatory concern with coercive political practice, which will color this case even though it does not apparently involve the fundraising to which the anti-coercion rules most directly apply.

Bob Bauer

Posted by Corey Himrod on Thursday, August 14, 2008

Click Here for a Printer-Friendly Version

COMMENTS

I think it’s going to be a case that the FEC is going to have to take seriously,” said Joseph M. Birkenstock, a Washington attorney specializing in election law. The key to the case will be “exactly what was said” at meetings, he said.

Meanwhile, new details are emerging that show Wal-Mart managers leading the meetings are spreading inaccurate information about the Employee Free Choice Act, according to a digital recording of a Wal-Mart meeting made by a Wal-Mart employee and reviewed by the Journal.

In the hour-and-a-half meeting, held for managers in a Southern state, the leader tells employees that their wages may be reduced to minimum wage for up to three months before a contract is negotiated, that union authorization cards violate workers’ right to privacy by including their Social Security numbers on them and that if a small unit within a store votes to unionize, the entire store will be unionized.

“If you have 10 associates in a photo lab and six sign union authorization cars, now the store is unionized,” the meeting leader told employees. “Six people can make a decision for 350 people,” which is about the average number of workers in a Walmart supercenter.

Labor lawyers say these are inaccurate interpretations of labor law in general and the Employee Free Choice Act specifically, and that could be a violation of labor law. “The statements are not correct representations of what the law would require even under the current law,” said Jeffrey Hirsch, a labor lawyer in Boston. “It would be a violation of the national labor relations act to say those things.”

Wal-Mart said that the three comments regarding minimum wage, Social Security numbers and unionizing small units don’t reflect Wal-Mart’s understanding of the law and weren’t included in its training.

According to the recording, the meeting leader, a human-resources manager, began by saying she was going to talk about the company and unions and “a little bit of politics,” specifically the Employee Free Choice Act. The leader said that the bill almost passed last year. “If Democrats get the votes they need and elect a Democratic president, they said it will be the first bill presented and that’s scary,” she said.

Wal-Mart’s Mr. Tovar said the meeting leader’s use of the word scary was “unauthorized."~~~~~~~~~WSJ,August 14,2008,Anne Zinneman............Note: The KEY word here is TAPED meeting.

ddrb in
Friday, August 15 at 09:00 AM

Care to give us the performance record of GW Bush and Dick Cheney?

ddrb in
Friday, August 15 at 10:59 AM

Contributions from All Military Personnel Recipient Total Number
Obama, Barack $335,536 859
McCain, John $280,513 558
Paul, Ron $232,411 537
Clinton, Hillary $167,050 376
Republican National Cmte $135,902 219
Huckabee, Mike $66,751 127
Thompson, Fred $46,400 93
Romney, Mitt $43,307 96
Giuliani, Rudolph W $22,050 47
National Republican Senatorial Cmte $21,885 26
DNC Services Corp $16,873 53
Based on contributions made during the 2008 election cycle through June 31, 2008~~~~~~~~~~~~Capital Eye

ddrb in
Friday, August 15 at 11:21 AM

$335,536 859

At first glance, it looked-like $335M.

Turns-out this is nothing more than another hack copy/paste job - the actual number is $335K (though I think this whole piece is a little suspect).

I say this because, traditionally, U.S. servicemembers do not get involved in certain parts of the political process (other than exercising their right to vote), which would include fundraising and campaigning for any candidiate.

Plus, if you really want to mince the candidates’ fund-raising abilities based on this sample data, the McCain/Paul combination already beats the Obama/Clinton efforts.

bbrd in
Friday, August 15 at 01:33 PM

bbrd: Why don’t you spin the Bush Cheney administration while you’re at the “spinning wheel? “

ddrb in
Friday, August 15 at 03:29 PM

BTW: If I wanted to “spin “a story,I wouldn’t include a source or citation.

ddrb in
Friday, August 15 at 03:31 PM

bbrd: Why don’t you spin the Bush Cheney administration while you’re at the “spinning wheel? “

While I normally don’t engage the likes of you, I’ll give you this much:

No spin needed.  The current administration made more than its’ fair share of mistakes.

Satisfied?

Now, back to your OP - go back to your source material (I’ve already been there) and read the commentary following the article - much of the commenters echoed my thoughts on American GIs donating to political campaigns.

What any of this has to do with Wal-Mart is totally beyond me.

Sorry to burst your bubble (though you can count on plenty more where that came from!).

bbrd in
Friday, August 15 at 04:04 PM

bbrd: Honey, your bubble burst a long time ago.

ddrb in
Friday, August 15 at 04:47 PM

“Now, back to your OP - go back to your source material (I’ve already been there) and read the commentary following the article - much of the commenters echoed my thoughts on American GIs donating to political campaigns.

What any of this has to do with Wal-Mart is totally beyond me”.....bbrd~~~~~~~ Note:Why don’t you ask Larry the Marine-he’s the one who introduced the subject?My ORIGINAL post WAS ON TOPIC---WalMart was TAPED at one of the mandatory meetings,and there may be more.

ddrb in
Friday, August 15 at 04:53 PM

Basically Wal-Mart is terrified of unions for the following reasons:

1. Wal-Mart’s WHOLE business model is “Come and buy a lot of ridiculously cheap crap at Wal-Mart.” There is really NOTHING else to lure people to shop there unless they live pretty close to it (which actually is the case with a lot of people because they’re EVERYWHERE).  If Wal-Mart isn’t always the cheapest place to buy stuff than WHY would you shop there?  The fact that Wal-Mart ISN’T always the cheapest place is irrelevant it’s the PERCEPTION of shoppers that it is that counts.

2.  Unions would stop them from doing the stuff that they do on a daily basis to their “associates”.  They want the absolute freedom to treat their workers like pieces of trash with no restrictions (despite their “open-door policy” lies).

3. There might actually be some kind of cohesion or logic to their day-to-day operations.  Trust me, I work there and it’s one of the sloppiest, most absurdly run companies in the world - it’s almost like people are doing it for a hobbyl I think that apes or dogs could run a company better than this!  A co-worker and myself laugh at how absurd it is every night (and we work third shift - I can’t even imagine how it is during the day).

Basically, even though it wasn’t my plan or intention I’m stuck in the world of retail and I’m about to apply to Costco or Whole Foods and get out of this crap job.

Generic Wal-Mart Wageslave in Michigan
Saturday, August 16 at 02:22 PM

Consider Yourself Lucky, bbrd!

“While I normally don’t engage the likes of you...”

What’s that saying about being choosy when your a beggar, bbrd?  You should be thankful ddrb is one of the few if not only who is willing to “engage” with “the likes of you!

ScrewedbyWalMart in Anytown, America
Sunday, August 17 at 07:21 AM

Hey Larry in USN WWII (Ret), I guess to you John McSame must look like a Spring chicken*?

*WWII ended in 1945. This is 2008. Do the math.

What’s good for Wal-Mart is BAD for America!

Ken V in Texas
Sunday, August 17 at 06:57 PM

The rest of the World, watching andhoping!

You can’t have it both ways, geezer. Either the world’s laughing at Obama’s candidacy, or he’s an international celebrity. (I heard lots of noise coming from that speech in
Germany and it wasn’t laughing.)

Bush isn’t even out a office yet and many politicos consider Bush/Cheney the worst administration in US history.

“Would you be more or less likely to vote for John McCain…if you knew he had fathered an illegitimate black child?”

Ken V in Texas
Monday, August 18 at 05:58 AM

What’s that saying about being choosy when your a beggar, bbrd?

You sure you don’t have me cofused with someone of similar letters in their “name”?

You should be thankful ddrb is one of the few if not only who is willing to “engage” with “the likes of you!

Thanks - now that’s something I could’ve lived without.

If she really did stop speaking to me, I wouldn’t be heartbroken...not in the least…

bbrd in
Monday, August 18 at 09:25 AM

Any chance of getting you to drop the ‘WWII’ from your sig, Larry? You’re giving the Greatest Generation a bad name.

No Fool like the old Fool. ~ T. Fuller (1732)

Ken V in Texas
Monday, August 18 at 02:17 PM

Any chance of getting you to drop the ‘USN’ from your sig, Larry? You’re giving the Navy a bad name.

‘There are those who have years without knowledge.’ ~ Rudyard Kipling

Ken V in Texas
Monday, August 18 at 02:21 PM

Ken V : Larry must have confused the Germans cheering Obama with Germans , who” booed and booted” WalMart OUT of Germany, a few years back.

ddrb in
Tuesday, August 19 at 08:29 AM

ddrb,

“Larry must have confused the Germans cheering Obama with Germans , who” booed and booted” WalMart OUT of Germany, a few years back.”

No, it is you that is confused, the Germans who were ‘cheering’ Obama, were the SAME ones who ‘booed and booted’ Wal-Mart out of Germany, they are the same type of Germans, who cheered Adolph back in the 1940’s and like some in the U.S., are against “Globalization”, unless they are the ones getting ALL of the benefits from the Globalization!!  Remember the MASTER RACE, US AGAINST THEM concept that Adolph promoted?  If you think Americans have it bad right now, ask someone who went through the ‘depression’ and WWII, what they experienced and which they prefer, THEN or NOW!!

RDS in
Tuesday, August 19 at 09:35 AM

Ken
Any chance you can drop Texas from your sig?

“ a new pimple has festered on the ass of Texas” Behold Ken V. the liberal transplant.

Thats not what the Lone Star represents.

Larry in USN WWII (Ret)
Tuesday, August 19 at 12:03 PM

RDS: If you want to educate yourself ,type in “Christian Mafia”,by Wayne Madsen into the search engine of your choice. As Robert Feinman has said in the past,your worldview is just so .....narrow and constricted.

ddrb in
Tuesday, August 19 at 01:48 PM

BTW,There is a new book out about this group called the Family,sometime refered to as the “Fellowship”. Mother Jones and the Nation have also done stories in the past abot this group with ties to National Prayer Breakfast,Billy Graham,Neo-Conservativesand Hillary Clinton. At one time,John McCain, in his ole “Maverick” days railed against them-no more.

ddrb in
Tuesday, August 19 at 01:53 PM

“ a new pimple has festered on the ass of Texas"---Larry ~~~~~~A “new” pimple,as opposed to a previous Texas pimple, a chronic abcess , of 8 long years duration ,festering on the ass of this country?

ddrb in
Tuesday, August 19 at 02:40 PM

...SAME ones who ‘booed and booted’ Wal-Mart out of Germany

And here we were the whole time, thinking it was Aldi who deep-sixed WM in Germany.

As Robert Feinman has said in the past,your worldview is just so .....narrow and constricted.

RDS, who gives a rip what Robert Feinman thinks...right?

As for you, lady, your worldview is well...googled…

Behold Ken V. the liberal transplant.

To each his own - just don’t try to make it my own…

bbrd in
Tuesday, August 19 at 03:30 PM

bbrd:"SAME ones who ‘booed and booted’ Wal-Mart out of Germany

And here we were the whole time, thinking it was Aldi who deep-sixed WM in Germany."bbrd~~~~~~~~Note:I will burst your BeelzeBubble on that one,bb. We’ve had this conversation before about WalMart getting their weiner schnitzled by the German shoppers...South Korea ,too!

ddrb in
Tuesday, August 19 at 04:11 PM

To Wit:Wal-Mart Finally Gets It
Lessons from South Korea & Germany

After exiting South Korea, Wal-Mart is hit in the wallet as the retail giant retreats with a US$1-billion loss from selling its German stores.

Many are surprised that Wal-Mart’s operations have contributed to America’s growing deficit. One has to consider that very few of Wal-Mart’s products are made in the United States. In fact, Wal-Mart imports more foreign-produced goods into America than any other single company. As the U.S. dollar weakens, more money flows out to pay for foreign products thus worsening America’s trade imbalance.

Some 60% of Wal-Mart products are imported from such countries as fast-growing South Korea, Philippines, Malaysia, Cambodia, Thailand and Vietnam. The company’s biggest trading partner is China.The rub? Wal-Mart has been launching American-style stores into some foreign markets with incompatible retail traditions and cultures. For example, the company had toiled for 8 years struggling to make its South Korean and German stores compete against strong, established local retailers.

On May 22, 2006, the American retailer withdrew from the South Korean market when it agreed to sell all 16 of its Wal-Mart Korea stores to Shinsegae, South Korea’s top discount chain. The deal was for $882 million. Wal-Mart Korea had lost $10 million on sales of some $800 million in 2005. Wal-Mart’s “warehouse-style” environment proved unfriendly to the needs of Korean shoppers. In particular, housewives were dissatisfied with food and beverage offerings.

In July 2006, Wal-Mart announced its withdrawal of operations from Germany because the firm was losing some $250 million per year on sales of $2.5 billion. Wal-Mart’s 85 big-box stores were sold to German company METRO AG, a much bigger player with 550 stores in Germany. Commentators blamed competitive prices from national discounters as well as German consumer rejection of American-style signature features such as stores outside of town centers, employees required to smile and heartily greet customers, and baggers at checkouts.

The sale of Wal-Mart’s 85 German stores resulted in a $1-billion pretax loss, which caused some short-term pain. But by packing up and leaving an underperforming market, Wal-Mart’s management is showing its shareholders that it has learned that global growth must be profitable.

Key to the Arkansas-based company’s success is everyday low prices. Analysts project that competitive prices can only be achieved in markets where Wal-Mart opens at least 100 profitable stores. Thus Wal-Mart had no business operating 16 stores in South Korea and 85 money-losing stores in Germany.~~~~~~~~~~~~~~~~~~

ddrb in
Wednesday, July 16 at 08:46 PM~~~~~~~~~~~~~~GERMAN CONSUMER REJECTION BY GERMAN SHOPPERS,bb.

ddrb in
Tuesday, August 19 at 04:25 PM

http://www.canada.com/montrealgazette/news/business/story.html?id=cdbd15c9-9f7c-4ba7-a1dc-dbfe32c23a9f

No big push to unionize stores in U.S. - yet
‘Won’t do anything until Obama bill approved’
ALLISON LAMPERT, The Gazette
Published: 2 hours ago
A collective agreement imposed last week at a Quebec garage won’t generate new efforts to unionize Wal-Mart’s U.S. stores, UFCW delegates say.

But the first contract won by Wal-Mart workers in North America will help galvanize union support for new labour legislation advocated by presidential candidate Barack Obama, said David Cook, a delegate from St. Louis, Missouri.

“In terms of unionizing Wal-Mart stores in the U.S., we won’t do anything until the Obama bill is approved,” Cook said.

Obama has co-sponsored a bill that would bring U.S. labour laws more in line with Quebec’s legislation governing the workplace. It would allow U.S. unions to run accreditation drives without holding a vote and give arbitrators the ability to impose collective agreements.

Cook said the union intends to use the new Quebec contract to generate support for the bill among members.

“It’s because of the (labour rules in) the Obama bill - which Quebec already has - that the workers got this agreement.”

Wal-Mart fiercely opposes card-based certification, arguing it doesn’t reflect the will of workers and goes against the democratic principle of holding a vote, company spokesperson Andrew Pelletier said recently.

But union officials have accused Wal-Mart of sabotaging union votes, either by offering workers short-term raises or by threatening to close down store departments.

Allison Lampert

© The Gazette (Montreal) 2008

R E M E M B E R
J O N Q U I E R E
Q U E B E C
Home of Walmart Worker Abuse

R E M E M B E R
J A C K S O N V I L L E
T E X A S
Home of Walmart Worker Abuse

Alex in Ontario, Canada
Friday, August 22 at 05:52 AM

“No big push to unionize stores in U.S. - yet
‘Won’t do anything until Obama bill approved’ “

In other words, “We wont do anything while workers still have a vote.  We want to wait til we can intimidate or decieve workers into letting us in.”

Dave in
Tuesday, August 26 at 07:58 PM

Dave: That sounds like WalMart words...We want to go on intimidating and decieving workers to keep from letting them in.”

ddrb in
Tuesday, August 26 at 08:43 PM

“For years, Wal-Mart has been intimidating and harassing its workers who want to form unions,” said Mary Beth Maxwell, executive director of American Rights at Work, a union-financed advocacy group. “Now they’ve adapted their union-busting tactics to influence our federal election system.”… Wal-Mart is limited, under both the United States Code and the U.S. Code of Federal Regulations, from directing its political meetings or “trainings” at ANYTHING beyond its stockholders and executive or administrative personnel.~WMW

ddrb in
Wednesday, August 27 at 07:33 AM

“executive director of American Rights at Work, a union-financed advocacy group”

Well if the unions say that Walmart is keeping their employees from unionizing it must be true.  The thing is salaried members of managment are not present at the vote so they therefore can’t truly intimidate anyone into voting against one since they would never know who voted which way.  If the workers are intimidated that much by someone that isn’t even present, then I’m guessing they are going to have a tough time doing any sort of negotiating with Walmart to get a better contract, and would end up signing Walmart’s first contract, which would be the same or worse than what they have now, anyway.

Dave in
Wednesday, August 27 at 08:14 AM

Dave: Don’t the UNION reps do the negotiating?The salaried members of WalMart management have ALREADY executed their intimidation tactics at those mandatory anti-union,anti-Democratic presidential candidate meetings WalMart held recently.

ddrb in
Wednesday, August 27 at 09:06 AM

The bargaining team is composed mostly of the employees involved in the contract that are elected from the membership by the membership or named by the local president.  So Walmart employees would be the majority of the ones on the bargaining team.  Also they are supposed to bring contracts to their membership for approval so that they are doing what is in the best interest of the people that they are supposed to represent. 

As far as Walmart’s supposed “anti-union,anti-Democratic presidential candidate,” it wasn’t intimidation.  No one came out of the meeting saying oh no I have to vote for McCain now.  Information is a good thing.  Only unions and liberals think that keeping the truth from people is a good thing thing.  The rest of us see it as a positive to give people information.  It’d be one thing if they lied, but since Obama voted for the bill and said he would sign it, I think it is a safe bet to assume that it will get passed into law and that it will make it far easier for unions to get into Walmart which can be seen by the fact that the unions are waiting til it gets passed to make another attempt to unionize a Walmart in the US.

Dave in
Wednesday, August 27 at 11:51 PM

Dave,

“Only unions and liberals think that keeping the truth from people is a good thing thing.”

And, only unions and liberals think that people having “Secret Ballot Votes” is a bad thing thing!!  Wonder how they would feel about ‘check off cards’ for the National elections, where Republicans and Democrats come to your house and ask you to sign a card on how you want to vote!!  That is the reason many people put “No Solicitors” on their doors, cause they don’t want to have to tell them “NO”!!

RDS in
Thursday, August 28 at 02:05 AM

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