The battle over the right of workers to cast confidential union ballots heats up Tuesday, as Hollywood stars descend on the Nation’s Capital to lobby for the card-check legislation euphemistically titled “The Employee Free Choice Act.”
Martin Sheen, who starred as the fiction President Josiah Bartlet and recently narrated a documentary depicting the plight of farm workers in Southern California, will lead a team of former “West Wing” actors across the Potomac to D.C. They will make an appearance to push the pro-labor measure, according to National Journal’s Hotline.
Even many Democratic stalwarts have warned that card check – which would reveal how individual workers voted on whether to unionize their workplace -- would open the door to union coercion.
Sheen has established he can play a president on television, but might need some cue cards to answer arguments against card-check raised Monday in a Wall Street Journal opinion column.
David B. Rivkin Jr. and Lee A. Casey, two lawyers who worked in the Justice Department under Presidents Ronald Reagan and George H.W. Bush, assert that card check would be unconstitutional.
Subjecting workers to union harassment, they contend, would effectively restrict their Constitutional guarantees of free speech, free association, and due process.
“The Supreme Court has consistently recognized the importance of this type of political discourse,” they write. “The reason is obvious: Public speech on contentious issues often inflames passions, prompting intimidation and retaliation. Outing speakers who prefer anonymity chills speech, and has the potential to suppress it entirely.”
Voting, they assert, is a form of “symbolic speech residing at the very core of the interests protected by the Constitution. They cite several cases from the Civil Rights movement and prior political campaigns where the Supreme Court upheld the importance of protecting anonymous speech.
One notable historical example they cite are the Federalist Papers penned by James Madison, Alexander Hamilton, and John Jay, who wrote under the anonymous pen name of “Publius.”
Rivkin and Casey add that pre-Revolution pamphleteers wrote anonymously to avoid being charged with sedition by British authorities.
“Labor organizing,” the two attorneys contend, “has been one of the most contentious exercises in modern American history, often leading to violence and employee intimidation on both the management and union side. Demanding that workers state publicly (by checking ‘yes’ or ‘no’ on a card) whether they support unionization would involve real and immediate dangers of intimidation, and would deprive workers of their right to anonymous expression.
“The fact that individuals could refuse to sign a card is unavailing, since a refusal to choose, in this instance, is an effective no,’” they say.
In the short term, Constitutional issues and star-studded photo ops may not matter much anyway.
Sen. Arlen Specter, R-Pa., has indicated he opposes the measure, complicating Democrats efforts to muster the 60 votes in the Senate they need to bring it to a vote.
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