Richard Epstein takes to the op-ed pages of the WSJ to argue that the EFCA is – wait for it – unconstitutional. Make no mistake – this is a highly misleading op-ed made in bad faith. If Epstein is right, then 80 years of post-New Deal precedent is wrong. In short, it’s an extremely radical position – though one Epstein has been unsuccessfully peddling for decades. Details below.
First, Epstein argues that the EFCA violates the First Amendment by limiting employers’ speech. Actually, he goes so far to claim that the EFCA completely silences employers:
There is simply no legitimate government interest in promoting unionization that justifies a clandestine organizing campaign which denies all speech rights to the unions' adversaries.
“Clandestine” – scary! First, this is just blatantly false. The choice of whether to unionize belongs to employees under federal law. They can do so through an election or card check – however, employers are currently only required to recognize election results. In essence then, current law allows the employer to dictate how a union must organize. The EFCA simply reallocates that choice (card check vs. election) to the employees, where it belongs. It in no way “denies all speech rights” – and Epstein is smart enough to know this.
Epstein also criticizes the current limits on what employers can say in response to union organizing (limits that are wholly ignored in practice). Technically, the law forbids employers from making threats in response to union organizing (though the prohibitions are currently toothless). But anyway, these types of restrictions are not – as Epstein implies – some sort of radical departure from First Amendment principles.
The First Amendment is not absolute (you can’t for instance infringe copyright and then claim “free speech”). And it also doesn’t cover threatening conduct. For instance, in the civil rights context, you can’t create a hostile work environment by hurling racial epithets. That’s a limit on free speech I suppose, but a necessary one to enforce legislatively-enacted civil rights. The exact same logic applies to labor law. The restrictions are not against “speech” per se but against tangible retaliation for exercising federally-protected rights to organize.
Moving on, the real whopper is that Epstein claims the EFCA would violate the Fifth Amendment “takings” clause. The reason is that EFCA requires parties to submit to binding arbitration if they can’t reach agreement within a certain time. The point of this requirement is to prevent employers from bargaining in bad faith to run out the clock (employers are free to de-recognize the union after a period of time – I think it’s a year).
Anyway, people can argue in good faith about this provision, but Epstein’s constitutional argument is extremely radical. In fact, it was rejected in 1937 in NLRB v. Jones & Laughlin Steel Corp. The same logic that would allow courts to strike down the EFCA under Epstein’s reasoning would necessarily restore the pre-New Deal Court’s authority to strike down the entire administrative state.
Again, people can have good faith arguments about the EFCA, but this isn’t one of them.