Illinois’ biggest fraud on its voters yet is coming in its official description of proposed constitutional amendment – Wirepoints

By: Mark Glennon*

In your mailbox, within the next few weeks, you will receive what is probably the most preposterous thing you’ve ever seen from the State of Illinois.

The office of the Secretary of State will publish and distribute the state’s official pamphlet describing the so-called “Workers’ Rights Amendment,” or Amendment 1, which will be on the ballot for voters to approve or reject in this November’s election. If passed, the amendment will create a new, personal constitutional right to organize and to bargain collectively and to negotiate safety conditions, wages, hours, working conditions, and “economic welfare.”

Amendment supporters have raised $7.7 million to convince voters to support the amendment, so you will start seeing ads in favor as well. Opponents are reported to have raised nothing.

The pamphlet will either be mailed to all voters or they will get a postcard showing where to find it. The content of the pamphlet was stipulated in the General Assembly’s resolution putting the referendum for the amendment on the ballot.

That pamphlet contains what’s supposedly a summary of arguments for and against the amendment, as well as an official summary of the amendment itself. They are reproduced in full below along with the wording of the amendment.

The pamphlet is a travesty – outrageously incomplete and misleading, particularly in the summary of the arguments in favor of the amendment.

Let’s start with how the amendment purports to affect the private sector. For that, you should first understand that applying it to the private sector would, in general, be unconstitutional under federal law and that’s admitted by the amendment’s backers themselves. That’s because of something called federal preemption, which applies to private sector labor law. Most but not all private sector labor matters are heavily regulated by federal legislation such as the Occupational Safety and Health Act and the National Labor Relations Act. States therefore have no power to regulate matters covered by that federal law. Their power is preempted by the federal legislation and that preemption rule is firmly established.

But the amendment is nevertheless written to include private sector labor matters by creating a new constitutional right to bargain collectively for anything whatsoever that affects worker “economic welfare,” which is pretty much everything. The pamphlet summarizing the amendment also pretends that it would cover the private sector.

How do the amendments supporters answer when asked how they can propose replacing thousands of pages of federal rules and regulations with a new, two-sentence constitutional right?

Oh, don’t worry about it, because it is indeed unconstitutional. That’s essentially what the lead sponsor of the resolution in the Senate to put the amendment on the ballot, Sen. Ram Villivalam (D-Chicago), told Capitol News Illinois. When has a legislator ever said, in essence, “don’t fret about most of the scope of our proposal because we know it’s unconstitutional”?

Let’s turn to some of the claims made in the pamphlet’s pro-amendment summary.

“This amendment will protect workers’ and others’ safety,” it starts out. Wrong, worker safety is covered by federal OSHA rules; preemption clearly applies. As to what is meant by “others’ safety,” who knows? Since the amendment purports to cover all workers “economic interests,” maybe that means dependents or others. That’s just one of many matters that could be litigated forever.

The amendment will guarantee “nurses’ right to put patient care ahead of profit and making sure construction workers can speak up when there’s a safety issue,” the pamphlet says. Nonsense. For the private sector, this is again preempted and unconstitutional.

The amendment “will protect workers from being silenced when they call attention to food safety threats, shoddy construction, and other problems that could harm Illinoisans. [Emphasis added.] Note that supporters are expressly saying that the amendment should be interpreted to apply to worker demands respecting their view of the general public’s interest – basically, political demands of any kind. The amendment is indeed open to an interpretation that broad, again inviting endless litigation.

As for public workers in Illinois, preemption does not generally apply because the state has opted to pass its own laws, which is a permissible option for states. That makes the amendment’s effects on public sector employment paramount, and it makes reforms of almost any kind impossible.

Think of the mess the amendment will make of those detailed laws that the state has covering public sector workers. They would all be overwritten by the vague, new two-sentence constitutional right. The amendment says nothing about keeping any existing laws in place. It contains no defined terms or other references to existing law whatsoever.

Everything would be subject to collective bargaining for public workers. In Illinois, collective bargaining disputes end up in arbitration, which routinely means public unions win. That’s especially true at the local level, where mayors bitterly complain that reforms of any kind are impossible because of collective bargaining and arbitration.

In short, the likely impact of the amendment on public sector employment is that no reforms of any kind would ever be possible, whether on pensions, prevailing wages or anything else whatsoever.

Turn to the supposedly objective summary of what the amendment says, which will appear in the pamphlet:

The new section will guarantee workers the fundamental right to organize and to bargain collectively and to negotiate safety conditions, wages, hours, working conditions, and economic welfare. The amendment prohibits the passage of any new law within the State that restricts or prohibits workers from engaging in collective bargaining with their employer over wages, hours, and other terms and conditions of employment, like safety protocols or training.

The first sentence is true as far as it goes, but makes no mention of myriad unknown consequences, only a few of which are covered in this column. The second sentence is horribly misleading because of the examples it cites, which imply a narrow scope. It says the amendment would protect collective bargaining “over wages, hours, and other terms and conditions of employment, like safety protocols or training.” No. As discussed, it would apply to all “economic interests” including, as supporters claim, economic interests of the general public.

The simple reality is that Amendment 1 would be impossible to fairly summarize in short enough form to fit on a pamphlet because its consequences are limited only by one’s imagination.

Some of those consequences do not seem to have occurred even to the amendment’s supporters in the General Assembly.

Two examples come to mind.

First, the amendment would mean the end of exclusive bargaining power for unions. Exclusive bargaining power is a prized right of unions that obtain it. Getting it requires certification through existing laws that mandate various procedures for workers to vote in favor of unionizing.

But the amendment would create a new right “to bargain collectively through representatives of their own choosing.” In other words, any two employees would have the right to bargain collectively through whatever organization they want, for whatever “economic interest” they want. Their demands might well be directly contradictory to demands from other unions or groups.

Second, supporters in the legislature have forgotten that Illinois quite recently excluded certain state employees from collective bargaining rights.

In 2013, a Democratic General Assembly passed and Democratic Gov. Pat Quinn signed Public Act 097-1172. It changed the definition of “Public Employer” to exclude the Office of the Governor, the Governor’s Office of Management and Budget, the Illinois Finance Authority, the Office of the Lt. Governor, and the State Board of Elections, thereby taking away their bargaining rights. Various other supervisory personnel, legislative liaisons and others also had their bargaining rights limited.

At least some of those changes made obvious sense. Union activity is inherently political, so it should have no place, for example, in the Board of Elections.

But the Workers’ Rights Amendment would supersede all of that 2013 law, giving every state employee the same, vague constitutional right.

That’s just one example among hundreds of how the amendment conflicts with existing law. Illinois Policy has already identified more than 350 provisions related to schools, children and Illinois’ other residents.  “Even those 350-plus provisions are likely just a fraction, because the language of Amendment 1 is so broad it’s hard to predict every potential state law that could be undermined,” they wrote.

How did an amendment so horribly overwritten and with such massive, unpredictable consequences make it to the ballot?

First, it seems that it has often been oversimplified by focusing on only the primary purpose of the bill. That purpose is to assure that Illinois lawmakers, statewide and locally, could never attempt to pass any right-to-work laws that would allow workers to opt out of union membership. Amendment 1 would indeed accomplish that, and its often wrongly summarized that way. In fact, however, its implications go far beyond right-to-work.

Second, the very vastness of Amendment 1’s implications makes criticism of it challenging to summarize. This column only touches on some of its problems. To deal with that complexity, we will be writing many columns on it and preparing a number of one-pagers, each discussing separate issues with the amendment.

That vastness is also what makes the pamphlet summary so wrong. Even if a truthful, pamphlet-sized summary were attempted, it would be impossible.

There’s probably something telling about the how the pamphlet on the amendment will be distributed. Instead of mailing it to all voters as has been the law for Illinois constitutional amendments, the Secretary of State was given the option of mailing a postcard with a web link to the pamphlet – but only for the November 2022 election.

Why would the lawmakers who support it have done that? The cynical view would be they don’t want voters to start thinking too hard about what the amendment would do, leaving things to the very short, harmless sounding summary that voters will see on the ballot. If there’s anything Illinois voters should have learned to have, it’s a cynical view.

We will continue to publish all major opinion pieces and points of view about the amendment, pro and con. Study them hard. The vote on Amendment 1 may well be far more important to Illinois’s future than anything else on November’s ballot.

*Mark Glennon is founder of Wirepoints.

Earlier Wirepoints articles on Amendment 1:

• Illinois lawmakers want to cement union powers into the state constitution
• Amendment Is Illinois Progressives’ Most Frightening Gambit Yet
• Supporters of Amendment 1 should get their story straight. Latest double-talk is about workplace safety.
• Advancing an amendment to enshrine union power
• Scope Of Pending Illinois Constitutional Amendment Goes Far Beyond Appearances. It’s A Monstrous Giveaway To Public Unions

Arguments In Favor of the Proposed Amendment That Will Appear In the Pamphlet:

This amendment will protect workers’ and others’ safety. That includes guaranteeing nurses’ right to put patient care ahead of profit and making sure construction workers can speak up when there’s a safety issue. It will protect workers from being silenced when they call attention to food safety threats, shoddy construction, and other problems that could harm Illinoisans. This amendment protects firefighters and EMTs who put their lives on the line to protect Illinoisans. It means they get the training and safety equipment they need to do their jobs, and can speak out when they see a problem without fear of retaliation. This amendment will help our economy by putting more money in workers’ pockets who join together and get raises. That will mean more money going into our communities and small businesses as people join the middle class with good-paying jobs.

Arguments Against the Proposed Amendment That Will Appear In The Pamphlet:

A fundamental right provided to all citizens under the First Amendment of the United States Constitution is the right to free speech and freedom of association. This amendment prohibits any law or ordinance that allows union workers to choose whether they wish to be a member of the union or not. Under the 2018 United States Supreme Court decision Janus v. Illinois AFSCME, non-union government workers cannot be required to pay union dues as a condition of working in the public sector. Approval of this constitutional amendment will deny that protection to private sector workers. The amendment also states that lawmakers could never “interfere with, negate, or diminish” certain rights. These terms are broad and undefined and leave lawmakers without the ability to clarify through legislation. Our Illinois Constitution provides such protection to public employees. The result of that protection has been to squash efforts by state lawmakers and voters to address Illinois’ pension fund deficits.

Summary of the Proposed Amendment That Will Appear In the Pamphlet:

The new section will guarantee workers the fundamental right to organize and to bargain collectively and to negotiate safety conditions, wages, hours, working conditions, and economic welfare. The amendment prohibits the passage of any new law within the State that restricts or prohibits workers from engaging in collective bargaining with their employer over wages, hours, and other terms and conditions of employment, like safety protocols or training.

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.