Educators for Excellence: The Campaign Intervention Prohibition and Public Sector Union Elections
The Chicago Teachers’ Union is a public-sector trade union. It has more than 25,000 members, all educators in the Chicago Public Schools. In addition to advocating for better teacher pay and benefits, the Union also educates on K-12 issues broadly. The CTU and many other such unions are extensively regulated, even as to their internal governance, under the Labor Management Reporting Disclosure Act. I’m no expert but I looked into it enough to know that labor unions owe their continued existence to federal laws. Without those laws, capitalists would wield economic power until unions were as common as dinosaurs. Union elections must really impact the public good for Congress to have enacted so many laws regulating them.
Last week, a federal judge dismissed CTU’s complaint against another nonprofit called “Educators for Excellence.” E4E is a (c)(3) whose mission is to ensure “that teachers have a leading voice in the policies that impact their students and profession.” It had better than $8 million net asset value at the end of 2022, according to its 990.
CTU alleged, and the judge accepted as true, that E4E spends a lot of its revenue finding and funding people to run for office in teachers’ unions. In fact, E4E is a large New York based educational nonprofit whose entire existence seems to be running a slate of candidates in teacher union elections. Here’s how the judge described it:
According to the complaint, E4E is a not-for-profit corporation with the “goal of limiting the power of teacher unions and limiting the scope of the bargaining that teacher unions may conduct.” To this end, E4E recruits and promotes candidates in union elections that sympathize with E4E’s goal. In May 2022, CTU held an election for union officers. E4E allegedly contributed money to recruit and promote candidates in this election. CTU and a CTU member, Moselean Parker— who ran for a union-officer position and was elected—sued E4E, alleging that E4E had contributed money to candidates and thus unlawfully interfered with the election. CTU and Parker also alleged that E4E would continue contributing money to candidates and interfering in future CTU elections.
The judge dismissed CTU’s complaint about E4E’s improper campaign intervention because the LMRDA does not create a private cause of action, but that’s not important. Pay attention.
What’s important is whether a (c)(3) supporting or opposing a candidate for union office violates the prohibition against campaign intervention. The answer hinges on whether union office is a “public office.” One might immediately dismiss the question, but I wouldn’t be so hasty. Nothing in 501(c)(3) or 1.501(c)(3)-1 specifically defines “public office” but there is a pretty good discussion in this EO CPE text. That text cites to GCM 39811 to define “public office” as an office that is “(1) created by statute; (2) continuing; (3) not occasional or contractual; and it (4) had a fixed term of office; and (5) required an oath of office.”
Is an elected union office “created by statute”? That seems to be the only debatable issue when it comes to unions elections. As I mentioned earlier, I am no labor law expert. But it seems to me that federal and state laws so thoroughly regulate the manner in which union officers are elected – down to the speech people can use in union elections, – that those offices are effectively “created by statute.” If so, E4E’s open support for union officers violates the prohibition against campaign intervention.
Its all just theory right now. I could probably come up with an even better theory if I understood what good comes from the prohibition anyway or how it is possibly constitutional. I understand, actually, I just don’t buy it. Public sector unions are probably as intertwined with the public good as is any local school board. That must be why Congress is all in their business. If I could figure out why it is important and constitutional to prohibit exempt organizations from campaigning for school board candidates, I could probably explain why it’s just as important to apply the prohibition to interventions in public sector union elections. Failing that, I can only assert that there is a literal way of explaining how the prohibition should apply to E4E’s intervention in public sector unions elections.