Secret Ballot Watch

The Employee Free Choice Act could provoke a constitutional challenge if it becomes law.

That’s what University of Chicago Law School professor Richard A. Epstein concludes after reviewing the proposal from a legal perspective.

Writing in Regulation magazine, Epstein finds there are several constitutional problems with the act, also known as card check. For example, Epstein finds that because it forces workers to openly declare their choice on whether to unionize, it violates their constitutional right of association.

Epstein also notes that card check allows unions to collect cards “at any location in whatever manner they see fit.” They can do this in secret to avoid an employer’s point of view from being heard or a debate among workers about unionizing. That violates the First Amendment free speech rights of the employer and workers who might not wish to join a particular union. He writes:  

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“The general view we have of political debates is that they work better with more, rather than less, information. I see no social justification whatsoever for a system that silences both the employer and dissident workers in order to facilitate union organization drives that could easily result in trapping workers who have not had an opportunity to express their preferences.”

Epstein, “The Ominous Employee Free Choice Act,” Regulation, Spring 2009 

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Then there are the arbitration sections of card check, which Epstein says are even more vulnerable to constitutional attack.

For example, Epstein says that card check creates an “impossibly broad delegation of lawmaking authority” to the Federal Mediation and Conciliation Service, which can create arbitration panels in “whatever way it sees fit.”

Such broad authority can run afoul with the “takings clause” of the Constitution, which states that the government must provide compensation for the seizure of private property. In the case of card check, Epstein writes, the property is the business that can’t work out its differences with the union within 120 days – and is essentially taken over by the government under card check.

In the end, Epstein dismisses card check because “rights of association and property clearly must count for something.”   

Indeed, they do. Too bad that card check supporters can’t see that.

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