Nancy Hamilton's Notes

Anonymous speech has a long history in this country, starting with Alexander Hamilton's contributions to the Federalist Papers in 1787-1788, which he published under the pseudonym "Publius." More recently, the value of anonymous speech in serving a vital role in the exchange of ideas and robust debate on matters of public concern has been extended by the courts to speech on the Internet. As one California court noted last year, anonymity on the Internet "offers a safe outlet for the user to experiment with novel ideas, express unorthodox political views, or criticize corporate or individual behavior without fear of intimidation or reprisal. In addition, by concealing the speakers' identities, the online forum allows individuals of any economic, political, or social status to be heard without suppression or other intervention by the media or more powerful figures in the field." Anonymous speech is clearly a core component of our democratic principles; however, it is now under attack and in danger of being restricted by Congress.

On March 10, 2009, the House Democrats introduced legislation titled The Employee Free Choice Act (EFCA). Also known as "card check" legislation, the proposed bill is regarded as the most radical revision to American labor law since 1935. Why is it radical and why address it in this forum, you ask? Because, contrary to its name, the Free Choice Act strips the employee of her fundamental First Amendment right to speak anonymously and choose privately through the secret ballot process that has long been the hallmark of employees' determination of whether or not to unionize their workplace.

Today, under the current law, before a union may become the bargaining representative for a particular group, it must first secure a sufficient number of signed authorization cards from employees. Once the union organizers have the signed authorization cards in hand, the employer has the option of (1) voluntarily recognizing the union or (2) requiring a secret ballot election to be run under strict National Labor Relations Board (NLRB) guidelines. Employers almost always opt for a secret ballot election, since employers typically do not want a union. The NLRB is an independent federal agency created by Congress in 1935 charged with conducting elections for labor union representation and administering the National Labor Relations Act, the primary law governing relations between unions and the private sector. During the period preceding the election – known as "laboratory conditions" in labor-law parlance – both sides, union and management, are permitted to conduct an election campaign during a 30- to 45-day period according to strict NLRB guidelines designed to protect the integrity of the election process, culminating in a secret ballot election handled by the NLRB, in which employees vote either for or against union representation.

Under the proposed EFCA, the federally supervised election campaign, the secret ballot and the NRLB oversight disappear from the process. Instead, without notice to management, a union organizer – through secret coaxing, coercion, or other means – will only have to obtain a majority of employee signatures on the authorization cards (hence "card check") in favor of union representation. The EFCA then mandates the employer recognize the union without an election and without the strictly regulated pre-election campaign period that is integral to current law. As a result, all employees may have to join the union (some states, Texas for example, do not require employees to join a union that has been selected by the majority of eligible workers, though pressure on such employees is immense), without the benefit of open and robust debate on the merits or detriments of union representation. Moreover, the employee will be denied her constitutional right to vote with the privacy of a secret ballot without peer pressure or coercion.

According to the AFL-CIO website, the elimination of the secret ballot and concomitantly the election campaign are necessary because "by the time employees get to vote, the environment has been so poisoned that free and fair choice is not an option" and "no employee has free choice after being brow beaten by a supervisor to oppose the union." "The current legal system is too broken," and the EFCA "restores workers' free choice to bargain with companies without corporate intimidation." The gravamen of these talking points is that America's employees cannot be trusted to make considered decisions on whether or not to unionize by way of secret ballots, and America's employers should not be allowed to mount an informational campaign to counter whatever the unions may be telling the employees. The AFL-CIO website states "the future of democracy may be at stake." True enough, but it is the EFCA that threatens the tenets of our democracy.

In its effort to "protect" the employee from "employer interference," the EFCA eviscerates the constitutional benefits of anonymous speech; that is, the employee's right to vote by secret ballot and, therefore, speak without fear of reprecussion. In doing so, the EFCA also tramples the employee's First Amendment right of privacy, thus violating two of the most fundamental rights of our democracy. It also denies the employee an informed decision, which results from the free, open, and robust debate that inevitably arises from the election campaign, which allows the employer, not just the union organizer, to participate in the discussion of whether or not to unionize the workplace.

Although the U.S. Constitution does not expressly guarantee the right to a secret ballot, as the Supreme Court has acknowledged, the right to vote has always been recognized as one of our most salient rights: "Other rights, even the most basic, are illusory if the right to vote is undermined." The secret ballot is of such significance because it safeguards against the fear of scorn and ridicule as well as the lessening of violence, intimidation, bribery, and other corrupt practices which can be incumbent in non-secret elections. Indeed, the respected traditions of anonymity in the advocacy of political causes and necessity of privacy are best exemplified by the secret ballot, the result of "the hard won right to vote one's conscience without fear of retaliation." Consequently, the best way to protect the employee is not through card check, but instead the continued use of the private ballot process.

By striking down the secret ballot in favor of the public card check, the proponents of EFCA are advocating a dangerous and decidedly undemocratic process that turns back the clock on democracy and our fundamental civil liberties. Just as the fundamental First Amendment right of anonymous speech has been a long-valued and traditional civil liberty of political speech since the Federalist Papers and is extended today to the Internet, it is no less so when it comes to the employee's right to a secret ballot in deciding whether or not to vote for union representation. The EFCA is contrary to such principles and as such is not only unconstitutional, but bad public policy.

— Nancy Hamilton is a partner at Jackson Walker. She can be reached at nhamilton@jw.com.