What unions are trying to sell is decreasingly attractive to potential members, so unions are doing what declining businesses often do: They are seeking government protection, in the form of a law to insulate them from the rigors of competition. They want government to allow them to, in effect, silence the employers' side of debates about the merits of unionization.
This is where professor Easton -- again, she favors the "Employee Free Choice Act" -- is pertinent. Avoiding the sort of circumlocutions that Washington policymakers often use to conceal their thoughts, she said this to The New York Sun: "Because employers wield so much power, it's hard to figure out what kinds of lines to draw about employer speech."
The Employee Free Choice Act would short-circuit the process of persuading workers through a public debate between unions and employers, the winner of which would be determined by workers casting secret ballots. Welcome to the political culture that the McCain-Feingold campaign finance law is shaping. That law, which regulates the quantity, timing and content of political speech, is making it increasingly acceptable for interest groups to attempt to advance their social agendas by limiting their adversaries' speech.
Senate Democrats might not find 60 votes to bring this Orwellian legislation -- "free choice," indeed -- to a vote. But if it does reach the president's desk, he will veto it. He should have vetoed McCain-Feingold. Its speech restrictions -- applauded as virtuous by the (exempt) media -- have legitimized talk about "drawing lines" to circumscribe the speech rights of entire categories of Americans, in this case employers.
Much recent academic writing about the First Amendment, and much of the jurisprudence about it, has ``balanced'' speech rights against other social goods, and has valued speech rights primarily as instrumental for other social goods. So there are, alas, ample precedents for this legislative attempt to truncate employers' speech rights.
Still, herewith a modest proposal: Any member of Congress who was elected by a secret ballot should oppose the "Employee Free Choice Act."