Monday, June 30, 2008

Epic takes on the right of association

Epic Systems, a software company in Madison, has announced that it will "try" not to do business with vendors who "support WMC with their current management." In response, a construction firm with a huge contract with Epic withdrew from WMC. (In an odd post, Paul Soglin argues that its "important" not to make the obvious connection.)

Tom Foley argues that this makes Epic CEO Judith Faulkner, a "corporate heroine." Maybe so, although it remains to be seen how hard Epic will "try" to avoid doing business with the politically distasteful. It would, in any event, be far more "heroic" to refuse to accept the tainted money of any current or potential customer who supports WMC.

Epic has the right to do this, although I believe that the threat to the judiciary is more multi-faceted than she does. Still, I think that political boycotts tend to stress the social fabric and are best avoided. To offer one example, assume that I think Planned Parenthood engages in a morally reprehensible business. I further believe that it ran an ad attacking certain legislators (including my representative, Jim Ott)as blatantly dishonest as anything I have seen. Maybe I wish no one would have anything to do with them. But should I find out who donates to the organization and avoid doing business with them ? Do we really want that to become a common practice?

And, if we don't, perhaps we need to call for a boycott of Epic Systems and any other organization that attempts to punish others for exercising their rights of free speech and association. Call that strategy Esenberg's Paradox.

But I wanted to blog about is the impact of the boycott on Soglin's other WMC-related crusade - the idea that advocacy organizations ought to be compelled to disclose their members or donors.

Here's the thing. There is a line of cases, beginning with NAACP v. Patterson, a case in which an Alabama court had, at the request of the court, ordered the NAACP to produce its membership list. The Court held that, under the circumstances, production of the list would subject members to reprisals and, therefore, violate their right of association. Later cases made clear that a claim of infringement of associational rights must be based upon a particularized showing of reprisal and one extended the principle to prohibit application of a campaign disclosure law to a minor political party which had historically been the subject of reprisals.

Most cases applying this concept involve some type of feared or actual harassment, but I am aware of at least one - involving a tort reform organization - that applied the Patterson line in the context of economic reprisals. What is clear is that an organization that wants to claim that it will be subject to reprisals has to point to some real threat and fear that will deter its members from further association. Recently, for example, the Wisconsin Supreme Court held that an advocacy organization had failed to make the requisite showing.

The constitutionality of any legislation requiring greater disclosure of who contributes to independent advocacy or belongs to advocacy organizations is not something that I can address here and would depend on just what is proposed. But I can imagine circumstances under which Epic's threat - and J.P. Cullen's submission to that threat - may provide support for a constitutional challenge.

10 comments:

illusory tenant said...

Forgot a link.

tf

Anonymous said...

I think that this is just another example of the far left losing their mind. Could you imagine what lengths these people will go to control everything people do in life?

If you do not do what they say, they will try to find a way to make you pay. How pathetic.

Epic should move to China where their politics would be a better fit.

Super Id said...

Anoyn:

Is epic's refusal to do business with WMC any different than radio stations refusing to play the Dixie Chicks?

Each example demonstrates freedom, as Corporations are free to conduct business pursuant to their own principles. And if you disagree with those principles or business practices, then take your business elsewhere.

John Foust said...

Is Epic's refusal to do business with WMC any different than radio stations refusing to play the Dixie Chicks?

I can't say it any better than the B&K Blogger:

"Follow the logic: Because Gableman won the election, Epic will lose money if they try to tell WMC what to do. Nobody tells WMC what to do, not even members. The more logical route is for Epic's board to give lots and lots of money to its executives, who can launder the money to candidates in other ways. Anyone knows that.

It's as obvious as the fact that employees with political blogs will add value to any company's bottom line, too. As with WMC membership, it's kind of like they're paying me for my opinions."

illusory tenant said...

But if I were an investor in Epic ...

I see what you mean by the B&K material writing itself. Epic is privately held, and its shareholders are its officers and employees.

Amy, Esq. said...

Rick said:

I think that political boycotts tend to stress the social fabric and are best avoided. To offer one example, assume that I think Planned Parenthood engages in a morally reprehensible business. I further believe that it ran an ad attacking certain legislators (including my representative, Jim Ott)as blatantly dishonest as anything I have seen. Maybe I wish no one would have anything to do with them. But should I find out who donates to the organization and avoid doing business with them ? Do we really want that to become a common practice?


Amy, Esq. says:

Why not? Is economic comparison the only basis on which it is legitimate to determine with whom we should spend our hard-earned dollars in the marketplace? (I hear you saying that it's legal/constitutional, but also that you don't think it's a good idea).

It may be prohibitively time-consuming to try to be socially conscious with every little purchase, and some of us may make the choice not to do the research, which is also a legitimate choice. But, I don't think it is at all illegitimate or in any way undermining the social fabric to choose between companies on this basis any more than it is to chose between them on price.

If price/quality of goods were the only bases on which people made marketplace decisions, I don't think many businesses would be involved in the charitable work they're doing (and encouraging their workers to do). I think that the best (and most legitimate) way to encourage businesses to invest in the right charities is by patronizing them when we agree with them (and, on the flipside, perhaps not patronizing them when we don't). There is a marketplace for ideas as well as for goods and services and I see no reason to artificially separate them.

Anonymous said...

super id -

This isn't just a matter of Epic not supporting the WMC, they want to undermind it by penalizing people that do.

Big difference and is predatory if you ask me.

Anonymous said...

Who would Bill Maher boycott?

Anonymous said...

In all your infinite wisdom, how do you propose to "boycott Epic"? You aren't an Epic customer, nor will you ever be an Epic customer.

Anonymous said...

Oh plenty of people are screwing with WMC. The board makeup has alerady shifted and it has now begun advocating for tax increases.

The demise of the WMC is a liberal priority and they are presently winning.