crossposted from unbossed
AP has reported on an interesting anti-EFCA initiative called "Save Our Secret Ballot".
A group, unwilling to disclose its backers or funders has announced it will propose state constitutional amendments that will make the secret ballot sacrosanct. The front guy for the initiative seems to make state constitutional amendments his specialty. He is also a proponent of a proposal on education expenditures that fall into the "sounds great until you look at the details" category.
What they are counting on in this case is not that the amendments would pass. They know that federal law would preempt a state constitutional amendment that tried to trump federal law. Since EFCA and the National Labor Relations Act, which it would essentially amend, are federal laws, the impact of the amendments on EFCA will be nil.
So what is the point? you may ask.
Here is what the SOSB folks propose.
The effort being launched Tuesday by Save Our Secret Ballot is a business-backed backlash against union-supported legislation in Congress that would abolish the power of employers to demand worker elections before recognizing unions.
The group said it plans initiative efforts in Arizona, Arkansas and Missouri and will work through legislatures to refer similar measures to the ballot in Nevada and Utah. Additional states could be added to the campaign in coming weeks, said Tim Mooney, a Scottsdale, Ariz.-based political consultant who is one of the directors of Save Our Secret Ballot.
So why are they proposing these amendments? Why is it worth spending this money especially since it will have no effect on the validity of EFCA?
The way they see it, it will give employer groups the moral high ground. But way, way more important, it will force labor to defend the Employee Free Choice Act by trying to argue against the secret ballot in state after state. And doing this will make unions look undemocratic and unAmerican.
Here is how SOSB is putting their case:
"When you have a chance to decide who's going to represent you -- be it in the state legislature, Congress or your place of employment -- it ought to be decided by secret ballot," Mooney said Monday.
Mooney declined to identify specific financial contributors to Save our Secret Ballots, saying generally that the group was backed by small businesses and entrepreneurs. Its advisory board includes members from the conservative Heritage Foundation, Goldwater Institute and Americans for Tax Reform.
The group is proposing a 47-word amendment to state constitutions, saying: "The right of individuals to vote by secret ballot is fundamental. Where state or federal law requires elections for public office or public votes on initiatives or referenda, or designations or authorizations of employee representation, the right of individuals to vote by secret ballot shall be guaranteed."
And this will likely succeed. A Las Vegas Review-Journal editorial quickly expressed support for the ballot initiative.
More on SOSB here.
Now if Labor Wanted to Be Smart in Responding
So what is labor to do?
Here is my suggestion.
The proposed amendment is very broad and would apply to all elections. Read the language again.
"The right of individuals to vote by secret ballot is fundamental. Where state or federal law requires elections for public office or public votes on initiatives or referenda, or designations or authorizations of employee representation, the right of individuals to vote by secret ballot shall be guaranteed."
"Shall" is mandatory language. Strong stuff.
Now one thing we know is that the forces behind this provision are against wide access to ballots and voting. They are all about disenfranchising voters in political elections.
So unions should come out in strong support of this amendment. They should work hard to get it passed. It would give labor and its allies one more tool to fight election devices that
disenfranchise voters - usually hitting hardest minorities. It might even get rid of the convict disenfranchisement.
Meanwhile unions can be secure that any of these amendments that pass would absolutely be preempted by federal law - as long as the National Labor Relations Act is in place. Once blogger suggests that it would be necessary to write into EFCA a statement on its preemptive force. While that might be useful, the courts have held the NLRA's preemptive reach to be very broad, so even without it, there should be preemption. And sometimes statements of this sort can be held by the courts to narrow preemption to specifically what is said. So care is warranted.