August 31, 2016
Murray Energy Corporation, one of the nation’s largest privately held coal-mining companies and an active participant in federal elections, maintained that its employees’ contributions to the company’s political action committee were entirely voluntary, despite the fact that it secured employee contributions at roughly twice the rate of other similar political solicitations, according to documents recently obtained by Citizens for Responsibility and Ethics in Washington (“CREW”) through a Freedom of Information Act request.
The documents were gathered by the Federal Election Commission (“FEC”) in its initial investigation of a 2012 complaint brought by CREW against Murray Energy alleging the company unlawfully coerced employee contributions and unlawfully reimbursed at least some of those contributions out of corporate funds. Despite the fact that the complaint was based on employees’ assertions of coercive solicitations by the company and was supported by the sworn testimony of a former employee that she received coercive solicitations, the FEC deadlocked on the question of whether to authorize a formal investigation of the alleged violations.
In one document obtained by CREW, an affidavit by a human resources director with a Murray Energy subsidiary, the employee stated that “only” 151 of the 354 management personnel solicited contributed to the company’s PAC in 2012, approximately a 43% response rate; a fact that the employee argued was “clear evidence that the PAC solicitation process is not coercive.” As the FEC’s Office of General Counsel noted, however, Murray Energy failed to provide any comparative rates, and one could conclude that a 43% response rate was “unusually high.”
Comparisons to publicly available benchmarks show that the purported response rate was indeed “unusually high.” According to The NonProfit Times, political solicitations typically have only a 9.8 % response rate. Similarly, a 2013 report by the National Association of Business Political Action Committees found that 48% of corporate political committees have a response rate under 20% for solicitations to their employees, and 81% had a response rate lower than 40%. Murray Energy’s response rate looks exceptionally good next to these numbers. While it is possible Murray Energy’s employees were simply incredibly motivated to contribute, the fact that the company’s response rate is twice the average rate for other corporate political action committees, and more than four times the response rate of political solicitations generally, “clear[ly]” is not evidence pointing in Murray Energy’s favor, particularly in light of employees’ accusations of coercion.
The documents also include other revealing facts that support an investigation of the company’s fundraising tactics. Included in the documents are frequent solicitations from Robert Murray, the CEO to Murray Energy, which were regularly sent to the employees and asked them to return funds to Murray himself; a company spreadsheet showing the company tracked employee contributions; and a memorandum from Mr. Murray to other senior executive sharing the names of employees who had failed to attend company fundraisers and asking the executives to “see” that the employees start contributing “for their own sakes.” The documents also reveal the evasive nature of Murray Energy’s defense. For example, Murray Energy provided an employee affidavit stating only that he was not “aware” of any reprisals against employees for not contributing, but not whether he had performed any investigation to inform himself on that matter; as well as selectively redacted copies of depositions from the former employee’s lawsuit against the company in which she alleged, in part, that she was fired for her refusal to contribute.
Incredibly, three commissioners with the FEC believed these facts were insufficient to give rise to even a “reason to believe” that Murray Energy may have violated the law—the statutory standard to authorize an investigation of potential wrongdoing. In June 2016, CREW brought a lawsuit against the FEC for this unreasonable failure to enforce federal campaign laws or to even investigate potential violations by Murray Energy. CREW has asked the courts to ensure that employees are protected against corporate coercion of employee contributions: something even the three obstructing commissioners agree is “a grave interference of a person’s core constitutional rights.”