In an editorial in today’s Wall Street Journal, Professor Richard Epstein, of the University of Chicago Law School, answers that question resoundingly in the affirmative.
He brilliantly makes the case that if the government makes the Employee Free Choice Act (EFCA) law, it will – in effect – give itself the right to deny free speech to employers. He has written that “there is simply no legitimate government interest in promoting unionization that justifies a clandestine organizing campaign which denies all speech rights to the unions’ adversaries.”
In addition, he writes that if a company does not like the terms presented by a union, the company normally has the right to walk away from the negotiations. Under the proposed EFCA, however, a union can “force itself” on the company. In such a situation, a union could conceivably demand that a company pay its workers more than the company can afford. It would wind up confiscating the company’s capital without compensating it for its removal. Professor Epstein writes that “by flatly denying the employer any option to walk away, mandatory arbitration under the EFCA runs smack into the taking clause [of the Constitution].”
If the Employee Free Choice Act becomes law, it could serve to end competitive capitalism as we have come to experience it. It could result in the demise of numerous companies. If the Detroit auto makers have been brought to their knees by the United Auto Workers operating under the rules of the 1935 National Labor Relations Act, just imagine what would happen if unions are granted the extraordinary powers under the EFCA to deny basic Constitutional rights to other companies?
