Union 'Card Check' Scheme Violates Constitutional Principle
This just in from Congressman Howard "Buck" McKeon...
The undemocratic card check scheme has been the subject of relentless criticism for months now, with detractors highlighting everything from its transparent political implications to its shocking assault on workers' rights.
Although the bill has been dubbed the Employee Free Choice Act by its supporters, it's hard to imagine a more misleading name. In fact, the bill would actually limit free choice by subjecting workers to the pressure, intimidation, and possible retribution that come from public exposure of their choice of whether or not to join a particular union.
Adding a new headache for supporters of this anti-worker plan, in today’s Wall Street Journal, attorneys David Rivkin and Lee Casey explain how card check could actually run afoul of the Constitution. Rivkin and Casey, who served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush, explore card check’s contradiction with the First Amendment.
"Although card check's advocates and critics have spilled much ink arguing about the bill's fundamental fairness to labor and management, so far the debate has not focused on the other compelling interest at stake: the constitutionally protected right of employees to keep their opinions on controversial issues like unionization to themselves. This is card check's Achilles' heel.
"The Supreme Court has interpreted the First Amendment's guarantee of freedom of speech, along with the Fifth and 14th Amendment due process clauses, to protect a variety of expressive and associational rights. The right to speak and associate anonymously is among those rights. Indeed, anonymous speech has a long and honored tradition in American politics. Much of the political agitation leading up to the American Revolution was necessarily anonymous in order to avoid British sedition charges. And three of the Constitution's Framers -- James Madison, Alexander Hamilton and John Jay -- wrote the Federalist Papers supporting its ratification under the anonymous pen name 'Publius.'
"The Supreme Court has consistently recognized the importance of this type of political discourse. The reason is obvious: Public speech on contentious issues often inflames passions, prompting intimidation and retaliation. Outing speakers who prefer anonymity chills speech, and has the potential to suppress it entirely. …
"There can be little doubt that the act of voting on important issues is a form of symbolic speech, residing at the very core of the interests protected by the Constitution. The secret ballot has not only been adopted in federal and state elections, it is recognized as a fundamental human right in a number of international instruments. This includes the U.N. Covenant on Civil and Political Rights, to which the United States is a party, that requires secret ballot voting as ‘guaranteeing the free expression of the will of the electors.' …
"Sanctioning -- and thereby promoting -- demands that employees publicly disclose how they feel about unionization clearly violates their First Amendment entitlement to vote and practice their speech privately. Significantly, unlike other cases in which such restrictions have been upheld, union organizers cannot articulate even a semblance of an offsetting First Amendment value."
Rivkin and Casey, Why Card Check is Unconstitutional, The Wall Street Journal, 03.30.09
The undemocratic card check scheme has been the subject of relentless criticism for months now, with detractors highlighting everything from its transparent political implications to its shocking assault on workers' rights.
Although the bill has been dubbed the Employee Free Choice Act by its supporters, it's hard to imagine a more misleading name. In fact, the bill would actually limit free choice by subjecting workers to the pressure, intimidation, and possible retribution that come from public exposure of their choice of whether or not to join a particular union.
Adding a new headache for supporters of this anti-worker plan, in today’s Wall Street Journal, attorneys David Rivkin and Lee Casey explain how card check could actually run afoul of the Constitution. Rivkin and Casey, who served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush, explore card check’s contradiction with the First Amendment.
"Although card check's advocates and critics have spilled much ink arguing about the bill's fundamental fairness to labor and management, so far the debate has not focused on the other compelling interest at stake: the constitutionally protected right of employees to keep their opinions on controversial issues like unionization to themselves. This is card check's Achilles' heel.
"The Supreme Court has interpreted the First Amendment's guarantee of freedom of speech, along with the Fifth and 14th Amendment due process clauses, to protect a variety of expressive and associational rights. The right to speak and associate anonymously is among those rights. Indeed, anonymous speech has a long and honored tradition in American politics. Much of the political agitation leading up to the American Revolution was necessarily anonymous in order to avoid British sedition charges. And three of the Constitution's Framers -- James Madison, Alexander Hamilton and John Jay -- wrote the Federalist Papers supporting its ratification under the anonymous pen name 'Publius.'
"The Supreme Court has consistently recognized the importance of this type of political discourse. The reason is obvious: Public speech on contentious issues often inflames passions, prompting intimidation and retaliation. Outing speakers who prefer anonymity chills speech, and has the potential to suppress it entirely. …
"There can be little doubt that the act of voting on important issues is a form of symbolic speech, residing at the very core of the interests protected by the Constitution. The secret ballot has not only been adopted in federal and state elections, it is recognized as a fundamental human right in a number of international instruments. This includes the U.N. Covenant on Civil and Political Rights, to which the United States is a party, that requires secret ballot voting as ‘guaranteeing the free expression of the will of the electors.' …
"Sanctioning -- and thereby promoting -- demands that employees publicly disclose how they feel about unionization clearly violates their First Amendment entitlement to vote and practice their speech privately. Significantly, unlike other cases in which such restrictions have been upheld, union organizers cannot articulate even a semblance of an offsetting First Amendment value."
Rivkin and Casey, Why Card Check is Unconstitutional, The Wall Street Journal, 03.30.09
posted by Ron Nehring at
10:02 AM
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