By Michael J. Lotito
July 23, 2021 at 5:00 am ET
Both Democrats and Republicans — for different reasons — embrace states’ rights. As a general principle, Democrats have long supported state experimentation as an integral part of federalism. Former Supreme Court Justice Louis Brandeis once articulated this point of view by noting that “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”
In contrast, Republicans have long supported states’ rights from a constitutional perspective. Specifically, Republicans believe in a smaller federal government, translating into more state power and autonomy. For example, Republicans have traditionally embraced the view that many issues are best left to the states to regulate without federal interference. As Alexander Hamilton once stated: “It’s not tyranny we desire; it’s a just, limited, federal government.”
Both parties embraced states’ rights despite their different rationales for doing so in 1947, when Congress overrode President Harry Truman’s presidential veto of the Labor Management Relations Act of 1947, commonly known as Taft-Hartley. Of particular importance in Taft-Hartley is Section 14(b), which provides that no state shall be compelled to require membership in a labor organization as a condition of employment. In other words, Section 14(b) grants every state the ability to enact right-to-work laws.
The bipartisan effort to override Truman’s veto was extremely strong. In the House of Representatives, the vote was 331-83. In the Senate, the final vote was 68-25, with 20 Democratic senators joining 48 Republican senators in overriding Truman’s veto. As then-Sen. Robert A. Taft (R-Ohio) stated before the Senate’s vote, there is “an unquestioned public demand for labor legislation to end abuses which are apparent to the American people.”
Today, 27 states have adopted right-to-work laws in response to their constituents’ desire to have the right to opt out of union membership. In enacting right-to-work laws, some states have pursued this change by amending their constitution. The second state to adopt a right-to-work law, Arizona, has an interesting history. Even before Taft-Hartley was enacted, in 1946, Arizona had a constitutional referendum making Arizona a right-to-work state.
Other states such as Michigan, Wisconsin, Virginia, Indiana, Louisiana and Texas have done this through statutory amendment. Of interest, Arizona also embraced right-to-work through a statutory amendment. In 1948, the Arizona Prohibit Union Membership for Employment Act was on the ballot as a referendum. Citizens were asked whether to uphold or repeal the law passed by the state legislature. Ultimately, the referendum was approved, and the legislation upheld. Both measures were the byproduct of the people of Arizona participating in the democratic process and making their voices heard.
States that have adopted right-to-work laws now face a challenge with the PRO Act. The Protecting the Right to Organize Act of 2021, which passed the House of Representatives on March 9, 2021, would make more than 50 significant changes to current law and overhaul the National Labor Relations Act of 1935 for the first time in more than 70 years.
One change the PRO Act would make is effectively overturning state right-to-work laws by amending the NLRA to permit “fair share agreements.” The PRO Act, however, would nullify the ability of states to enact right-to-work laws — to express their citizens’ desire to have the right to choose to be in a union or not — not only in the future but retroactively as well. Doing so is against the Democratic principle of state experimentation and is also against the Republican principle of state autonomy and a smaller federal government. More importantly, the PRO Act compromises individuals’ rights — namely, the recognition of voting and the integrity of the votes by the people of the states.
Currently, 47 Democratic senators have co-sponsored the PRO Act. Notably, Sens. Joe Manchin (D-W.Va.), Rev. Raphael Warnock (D-Ga.), Jon Ossoff (D-Ga.) and Tammy Baldwin (D-Wis.) — all of whom are from states where right-to-work has been embraced — are co-sponsors. Despite this, Manchin, for example, believes the PRO Act will help “level the playing field.”
However, the decision by these senators to support the PRO Act — a sweeping labor law that will have a substantial impact on America’s workforce — interferes with individuals’ rights. Individuals in these states have already voiced their preference — they wish to have a state that remains free of compulsory union membership.
Passing the PRO Act is an extraordinary nullification of the will of state voters and states’ rights, which both Democrats and Republicans have recognized — albeit for different reasons — since our founding. It is critical, though, to understand that opposition to the PRO Act is not just about states’ rights; it’s about championing individual rights. Individuals exercising their right to vote and voicing their support or opposition for any given legislation is what makes our republic so unique and unlike any other country in the world.
Democrats and Republicans cannot have it both ways. Both parties cannot support states’ rights and the ability for states to develop and implement various policies, and then in the blink of an eye, override the will of the people of their state. This dictatorial power over states must be rejected to preserve the well-grounded principles of federalism and ensure a balanced democratic government. Senators must always work to ensure that they are representing the interests of the individuals they represent. Doing so will our bedrock principle of individuals’ rights is preserved in its entirety.
Governors, legislators and, most importantly, voters, need to pay attention because their will is about to be thwarted by the enactment of the PRO Act.
Michael J. Lotito, a management-side labor and employment attorney based in San Francisco, is legal counsel for the Coalition for a Democratic Workplace.
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