Card Check: Constitutionality in Doubt

By April 1, 2009Labor Unions

The constitutional argument against the anti-democratic Employee Free Choice Act was made last week in an op-ed in the Wall Street Journal by David Rivkin and Lee Casey, former Justice Department officials under Reagan and Bush 41, “Why Card Check Is Unconstitutional“:

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.

This seems much more debatable than, for example, the White House’s ban on individuals (citizens, lobbyists) communicating with it orally on stimulus projects. And indeed, there’s a letter to the editor in today’s WSJ from Queens attorney Todd Bank, “Court Might Uphold ‘Card Check’,” making a comparison to the classroom Pledge of Allegiance. We don’t quite follow it.

But we’re very impressed with Mr. Bank’s ability to get two letters to the editor published in the WSJ such a short time. February 10th, “Nobody Knows How to Value This


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