Amendment 1 Is Illinois Progressives’ Most Frightening Gambit Yet. – Wirepoints

By: Mark Glennon*

Most Illinoisans know nothing about it, but the General Assembly already authorized it for ballot approval in November. It’s Amendment 1, and the scope of its impact truly strains the imagination. For Illinois’ long term, the vote on Amendment 1 will be more important than any elected position on the ballot, including governor – if the courts let it get that far.

With a quick, shallow reading you might think Amendment 1 is only about prohibiting efforts to make Illinois a right-to-work state. Indeed, that’s how supporters like to describe it. That may seem fine to many who believe workers should not have the right to opt out of union membership in unionized companies.

But read it more closely. Amendment 1 goes far beyond that with wording so expansive and so vague that it makes it difficult to imagine how the economy could function and how Illinois wouldn’t be buried under a hailstorm of litigation attempting to sort out the amendment’s meaning.

Today, labor law consists of tens of thousands of pages of statutes, rules and decisions that have been worked out over decades. It covers bargaining, worker safety, wages, benefits, hours, unionization and countless other issues in the workplace and in labor-management relations. Most of that for the public sector is state law, but for most of the private sector it’s federal, particularly the NLRA — the National Labor Relations Act.

Amendment 1 would attempt to sweep most all of that aside, for both the public and private sectors. It would all be superseded by a new “fundamental right,” described in only two sentences that would be inserted in the Illinois Constitution’s Bill of Rights.

The full text of Amendment 1 is shown at the bottom of this column, but here is what it says if you focus on just the most important words:

Employees shall have the fundamental right to organize and to bargain collectively through representatives of their own choosing…to protect their economic welfare….  No law shall be passed that interferes with, negates, or diminishes the right of employees to organize and bargain collectively over…terms and conditions of their employment….

Think about those words and you should begin to understand the monstrous extremism of the amendment. It’s absurdly overwritten:

• First, it applies to all employees – public or private, in small companies or large, unionized or not.

• Second, any group of any kind could form and be authorized to bargain with their employer, through whatever representative they want, subject to no rules or restrictions whatsoever.  Any number of groups could be formed, through whatever process. They could even pursue conflicting goals. Prior labor law be damned. Existing rules about voting and union certification would mean nothing. 

• Third, and most important, they could bargain for anything that protects their “economic welfare.” What does that mean? It’s undefined, just like the other terms in the amendment, so it means whatever you want to claim it means. “Economic welfare” need not be about something on the job. Workers could demand and bargain for nearly whatever they want. Just as the Chicago Teachers union often demands goals unrelated to schools, such as rent control and social justice measures, all employees would get a constitutional right to demand anything touching on their economic welfare.

Keep in mind that, as a constitutional amendment, it would override all existing labor law. That’s key because there’s no tie or reference of any kind in the amendment to fundamental definitions and principles in existing law. Everything would be left to what meaning Illinois courts would choose to give to new, undefined words in the amendment, which would supersede all that came before.

Supporters of the law may admit that’s true for government workers, which is undeniable. That’s no surprise since Illinois public unions hold so much power already and forever demand more.

But supporters claim that for the private sector, federal law will still control. NLRA and all the federal rules would stay in place, they say. That’s because of something known as “preemption.” When the federal government has comprehensively regulated a particular area, such as labor law, states’ authority to regulate is preempted.

But hold on.

First, how far preemption goes is hotly debated and a matter of constant litigation. Thousands of disputes have been decided over the decades, and they continue to arise. For example, a group of Google employees sued the company over its confidentiality policies which they said violated state law. Google answered that the state law was preempted by the NLRA, which they appealed all the way to the US Supreme Court just last year. Google lost so the lawsuit is now proceeding. What’s preempted under the amendment is unknown and would be subject to endless litigation.

Second, progressives are out to cripple or destroy the whole concept of preemption in labor law. They are hiding behind a shield they want destroyed. They want to end the preemption doctrine in order to free states to engage in whatever pro-labor reforms they choose. That effort is widely written about, such as here by some of the lawyers hoping to kill it. Preemption’s enemies hope to end it either through litigation, amendments to federal law or even by simple administrative action at the federal level. They’ve already had some success, some of which is described in the Harvard Law Review.

Hence, any limitations imposed by federal law on the scope of Amendment 1 to private sector employees would be subject to constant litigation and would end entirely if the preemption doctrine is ended. For government employees, the open-ended new constitutional right would rage unrestrained from the start.

Now, however, there’s a welcome and critically important development. Three Illinois taxpayers filed a lawsuit Wednesday in an Illinois court seeking to throw Amendment 1 off the ballot entirely, basing their claim on the preemption doctrine. The lawsuit is described here and their court filing is here.

We hope they win and that the lawsuit sparks a major, public debate on Amendment 1. If the lawsuit fails and voters approve the amendment, chaos will overtake courts and the entire labor market in Illinois. Amendment 1 is yet another Grim Reaper staring Illinois in the face.

*Mark Glennon is founder of Wirepoints.

Text of proposed amendment:

(ILCON Art. I, Sec. 25 new)

SECTION 25. WORKERS’ RIGHTS  (a) Employees shall have the fundamental right to organize and to bargain collectively through representatives of their own choosing for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety at work. No law shall be passed that interferes with, negates, or diminishes the right of employees to organize and bargain collectively over their wages, hours, and other terms and conditions of employment and work place safety, including any law or ordinance that prohibits the execution or application of agreements between employers and labor organizations that represent employees requiring membership in an organization as a condition of employment.