Jay Ackroyd writes:
I think some people need to be reminded that many tactics in support of the public workers unions in Wisconsin are illegal under the Taft-Hartley Act:
The Taft–Hartley Act prohibited jurisdictional strikes, wildcat strikes, solidarity or political strikes, secondary boycotts, secondary or "common situs" picketing, closed shops, and monetary donations by unions to federal political campaigns.
In Citizens United, the Supreme Court implicitly struck down the Taft-Hartley Act's prohibitions against certain political expenditures. Would the logic of Citizens United extend to Taft-Hartley's prohibition against political solidarity strikes? More . . .
In a 1950 decision upholding Taft-Hartley's prohibition on Communist Party membership for union officials (more on that Congressional regulation of "mental activity" in a later post), the Supreme Court wrote in American Communications Association v. Douds:
[T]he relative significance and complexity of the problem of political strikes and how to deal with their leaders becomes at once apparent. It must be remembered that § 9(h) is not an isolated statute dealing with a subject divorced from the problems of labor peace generally. It is a part of some very complex machinery set up by the Federal Government for the purpose of encouraging the peaceful settlement of labor disputes. Under the statutory scheme, unions which become collective bargaining representatives for groups of employees often represent not only members of the union, but nonunion workers or members of other unions as well. Because of the necessity to have strong unions to bargain on equal terms with strong employers, individual employees are required by law to sacrifice rights which, in some cases, are valuable to them. See J. I. Case Co. v. Labor Board, 321 U.S. 332 (1944). The loss of individual rights for the greater benefit of the group results in a tremendous increase in the power of the representative of the group -- the union. But power is never without responsibility. And when authority derives in part from Government's thumb on the scales, the exercise of that lower by private persons becomes closely akin, in some respects, to its exercise by Government itself. See Graham v. Brotherhood of Locomotive Firemen, 338 U.S. 232 (1949); Steele v. Louisville & N. R. Co., 323 U.S. 192 (1944); Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210 (1944); Wallace Corp. v. Labor Board, 323 U.S. 248, 255 (1944); Railway Mail Association v. Corsi, 326 U.S. 88, 94 (1945).
We do not suggest that labor unions which utilize the facilities of the National Labor Relations Board become Government agencies or may be regulated as such. But it is plain that, when Congress clothes the bargaining representative "with powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents," [n15] the public interest in the good faith exercise of that power is very great.
With regard to public sector unions, most of this rationale for permitting a ban on political strikes simply does not apply. All federal labor laws, including the Taft-Hartley Act, are not applicable to the States. Moreover, Citizens United places a new light on the First Amendment analysis of Taft-Hartley prohibition on political strikes. The Citizens United court wrote:
[P]olitical speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are “subject to strict scrutiny,” which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” [cite omitted] While it might be maintained that political speech simply cannot be banned or restricted as a categorical matter, see Simon & Schuster, 502 U. S., at 124 (KENNEDY, J., concurring in judgment), the quoted language from WRTL provides a sufficient framework for protecting the relevant First Amendment interests in this case. [. . .] Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. [. . .] As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.
Does the Taft-Hartley Act's prohibition on political solidarity strikes withstand this level of review? If Citizens United's logic is applied consistently, the answer appears to be clearly No. The prohibition against political solidarity strikes is a"[s]peech restriction[] based on the identity of the speaker." What makes it different from an expenditure restriction?
Ironically (and more than a bit nonsensically), political strikes against the government might survive this scrutiny. The Citizens United Court stated that:
The Court has upheld a narrow class of speech restric-tions that operate to the disadvantage of certain persons, but these rulings were based on an interest in allowing governmental entities to perform their functions. See, e.g., Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 683 (1986) (protecting the “function of public school education”); Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U. S. 119, 129 (1977) (furthering “the legitimate penological objectives of the corrections system” (internal quotation marks omitted)); Parker v. Levy, 417 U. S. 733, 759 (1974) (ensuring “the capacity of the Government to discharge its [military] responsibilities” (internal quotation marks omitted)); Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 557 (1973) (“[F]ederal service should depend upon meritorious performance rather than political service”). The corporate independent expenditures at issue in this case, however, would not interfere with governmental functions, so these cases are inapposite.
Jones v. North Carolina Prisoners Labor Unions, Inc. involved unionizing activities by prisoners, so perhaps not quite on point here. The other cases cited by the Citizens United also offered fairly unique governmental interests (education and military.) The citation to the Civil Service Commission case is rather ironic as it cuts strongly against the Citizens United court's principal argument - that the government's interest in having its actions compromised by "political service" is not sufficient to restrict First Amendment rights. In Civil Service Commission v. Letter Carriers, the Court stated that:
We unhesitatingly reaffirm the Mitchell holding that Congress had, and has, the power to prevent Mr. Poole and others like him from holding a party office, working at the polls, and acting as party paymaster for other party workers. An Act of Congress going no farther would, in our view, unquestionably be valid. So would it be if, in plain and understandable language, the statute forbade activities such as organizing a political party or club; actively participating in fund-raising activities for a partisan candidate or political party; becoming a partisan candidate for, or campaigning for, an elective public office; actively managing the campaign of a partisan candidate for public office; initiating or circulating a partisan nominating petition or soliciting votes for a partisan candidate for public office; or serving as a delegate, alternate or proxy to a political party convention. Our judgment is that neither the First Amendment nor any other provision of the Constitution invalidates a law barring this kind of partisan political conduct by federal employees.
Frankly, this case is hard to reconcile with Citizens United. The only way to do so it to carve out an exception allowing restricting the speech of persons or entities with a direct relationship with government - employees and contractors and the like.
In this fashion, Taft-Hartley's prohibition against political solidarity strikes could be applied to public sector unions. But it seems that the logic of Citizens United would require that the ban against political solidarity strikes should not apply to private sector unions, unless such strikes affected entities with direct relations with governments.
In any event, Citizens United opens a bevy of questions regarding a number of free speech issues. As I have stated earlier, my belief is that the Court simply did not think about the Pandora's Box it has opened.