Legal Experts: Employee Free Choice Act Is Unconstitutional
Monday, March 30th, 2009 by AdminA legal scholar has already advanced the idea that portions of the Employee Free Choice Act are unconstitutional — primarily on the grounds that they curtail employer speech and violate basic laws of private contract. But this morning former Department of Justice lawyers David B. Rivkin, Jr. and Lee A. Casey argue that EFCA’s card check provision’s elimination of secret ballots during union campaigns would also violate the constitution.
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. While they may complain that the current system does not favor unionization and hence inhibits their associational rights, the problem, if any, arises from possible employer intimidation — not from the secret ballot as such.
In this context, the new law would entitle organized labor to the government’s imprimatur of its card-check choice. With the government thus supporting demands that employees publicly state their opinions on a controversial matter, the courts should view card-check’s provisions as being ill-tailored to meet the problem of employer intimidation, and thus, unconstitutional.
For art that is among the best to capture the problem, see David G. Klein’s accompanying cartoon:
