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Can your boss or pastor urge you to vote or contribute to a particular candidate? We take a look.

August 1, 2012 1 p.m.


Dan Eaton, San Diego attorney with Seltzer Caplan McMahon Vitek

Chris Carson, Campaign Finance Director, League of Women Voters of California

Related Story: The Legality And Ethics Of Political Support


This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

CAVANAUGH: Our top story on Midday Edition is the legality and ethics of political support. The national and local political campaigns will heat up in a few weeks as the conventions and debates get underway. When does a casual discussion at the workplace cross the line? Can your boss urge you to donate to a political campaign or can your pastor tell you how to vote? Chris Carson is campaign finance program director for the league of women voters of California.

CARSON: Thank you. I'm happy to be here.

CAVANAUGH: Thank you so much for joining us. I'm wondering, there are legal problems involved in this, but also ethical issues for employees who feel pressured to support a particular candidate. Can you tell us any stories from your work? What do you hear from voters who call in to the league of women voters?

CARSON: Well, it's very carefully nuanced, but for instance someone who was up to be a partner with a large, international public accounting firm was asked to give a contribution to a particular candidate running in another state. The person said, well, that's not my party. And they said well -- they didn't actually say if you don't make the contribution, you won't make partner, but it got pretty close. And then the person said, well, could I make a contribution to the Senate candidate of the party of my choice? That way you'll be getting -- no, it had to be to that particular senatorial candidate. So the person gave the money because they thought it was pretty clear, even though there hadn't been an actual statement made.

CAVANAUGH: And does this happen with any frequency? Do you get these calls a lot?

CARSON: It's fairly common in law firms and public accounting firm and this kind of thing. It happens with some degree of regularity. I guess it's considered part of it. And in any economy, particularly in this economy, would you say no?

CAVANAUGH: You've got a point. That's real intimidation. I'd like to introduce Dan Eaton, San Diego attorney. Welcome to the conversation.

EATON: Thank you.

CAVANAUGH: Now, I just spoke with Kris about the incidence of how often be the legal of women voters hear about situations that are pretty sticky. And we have you here to tell us where the legality is on this issue. Can an employer ask you to donate to a specific candidate? Or toward a specific issue?

EATON: Well, inviting you to make a donation wouldn't necessarily be a problem. The problem comes when it moves from inviting to requiring. And that's a problem. California law is very clear that employers cannot in any way coerce their employees' political activities. Since you mentioned donations, that would include saying, well, you know what? Employee, why don't you go ahead and make this donation, and I'll reimburse you for it or give you a bonus to cover that? That's really good old fashioned money laundering. Not drug money laundering. But it ends up the donation is not being made really in the name of the person from whom it is coming. And that's the problem of where the law is concerned.

CAVANAUGH: I'm very interested in your word, invite. They can invite but not request. Or require. That sounds as if those lines can get blurred rather easily. What is an invitation as opposed to a suggestion, as opposed to urging to you do so? Is that a clear line as far as you can see?

EATON: Well, it's not, except in the extreme case as I heard one of them mentioned earlier, where you say we want you -- we need you to give a particular donation to a particular candidate or we insist that you support this particular candidate. But as you said, there is a continuum, and -- but the California law is very clear that you cannot control or direct or take any actions tending to control or direct the activities of the employee. But this spectrum from invitation to requirement ends up being a continuum, a line along which you have to be very careful. And employers have to tread very carefully, even when they talk about suggesting political activities.

CAVANAUGH: Kris Carson of the legal of women voters, what do you -- what kind of advice do you give voters who call in with questions like this?

CARSON: Well, since we aren't licensed attorneys, we tell people to consult an attorney. It's very difficult, as Dan said, it's a continuum. And it needs legal advice.

CAVANAUGH: Well, one of the reasons that we have Dan here besides he's just a brilliant guy is that he is an employment attorney.

EATON: That's right.

CAVANAUGH: And let's go to another scenario, Dan. What about a situation where an organization encourages employees to attend a political rally or a political demonstration? Maybe the employees who go are given time off with pay. What about the employees who don't want to attend?

EATON: Well, that becomes a problem. If you're given time off with pay, then that ends up being subsidizing that activity, and that becomes a problem. And we are talking about a fairly gray area. Let me read you the provision here. It says "no employer should make, adopt, or enforce any rule, regulation or policy forbidding or preventing employees from engaging or participating in damages. No employer shall attempt to coerce or influence by for example a threat of discharge to adopt or refrain from political activity." You use the word encourage. What does that mean? Does it say you need to go to this and we will pay you? When you start subsidizing employee political activities, you start running closer and closer to the line of prohibited activity.

CAVANAUGH: What about the flip side? Can an employers control an employee working for a candidate or a political cause?

EATON: No. When they're on lunch breaks, no. When you're talking about on employer time, the employer certainly has a right to insist that its employees do work-related activity, and not be distracted by political activity. But if the employee, for example, on his or her lunch hour wants to phone for a particular candidate, the employer cannot say no. That's the employee's time to do what they want to do, even if the employee is phone banking for a candidate that the employer does not favor. But not on a company phone. That becomes problematic. The employer certainly can say, no, our company electronic resources are supposed to be used for company business.

CAVANAUGH: A quick question about unions. Can they encourage members to support a particular candidate?

EATON: Oh, sure they can. Absolutely. That's part of the thing that unions do to advocate for their members. But the interesting thing is that members also have the opportunity to opt out of having their dues go to political activities. None the less, unions do properly have a very large ability to influence political campaigns in support of the interest of their members. But again, individual members have the opportunity to opt out.

CAVANAUGH: Kris, I'm wondering, how often does the league of women voters hear something about what was said in church or synagogue or a congregation last weekend? Do you get phone calls from people asking whether or not they can be asked to vote a certain way at church?

CARSON: The league of women voters of California, we have many leagues all around the state. People may contact them, the closest league in their community. But I'm sure they're told you can't do that, and you ought to report it.

CAVANAUGH: Have you heard of any stories of something along those lines?

CARSON: I have heard stories. People saying, well -- and it gets gray. Sometimes there is a difference between urging support or opposition to a specific candidate and support or opposition to a particular viewpoint.


CARSON: That's one thing. But sometimes churches either forget or whatever, and they will say don't vote for or vote for so-and-so. And that's clearly wrong. It's a violation of their tax status.

CAVANAUGH: And it's also sort of -- would you imagine that it would be an ethical violation as well toward the other voters in the room?

CARSON: I would. If you're not in agreement, are you going to stand up in the middle of a church service and argue? Or walk out?

CAVANAUGH: Let's talk about tax exempt status of churches and houses of worship. Where can they go politically? How far can they push that envelope?

EATON: The IRS has actually issued guidance on this. It's been the law for about half a century, originating from a proposal by then Senator Lyndon Johnson which prohibits partisan political activity by a 501 C 3 organization, including churches. If they run afoul of that, they risk their tax exempt status. Their income then becomes taxable, and the income of the parishioners is not tax deductible. In 2006, they said close to 250 referrals were made to the IRS of this kind of activity which is very interesting. And understand, and this is an important point, this applies to political candidates advocating for or against political candidates. There are certain limited abilities for 501 C3 churches to advocate for certain positions or even ballot propositions. The bottom line is with respect to this particular ban, the key is that taxpayers shouldn't be in a position of subsidizing activity for or against political candidates.

CAVANAUGH: That's a very good distinction. I didn't realize that. That's very interesting. So a church may basically advocate for a particular issue but not a candidate.

EATON: That's right. Otherwise the taxpayers are essentially subsidizing the support of a particular candidate, and that the IRS and federal law says you cannot do.

CAVANAUGH: Thank you both very much.