Jeff Hirsch replies to Richard Epstein’s column suggesting that the EFCA is unconstitutional under a free speech and takings analysis:
The argument isn’t developed much more than that and doesn’t seem particular strong to me. I also have a hard time taking it seriously given that Epstein doesn’t even mention the speech restrictions on unions, much less the fact that unions have significantly more restrictions on their speech than do employers (see, e.g., Section 8(b)). * * *
…I’m not seeing a big problem under the Court’s current takings jurisprudence. This sounds more like an argument for a shift in that policy. Either way, Epstein’s piece serves as a good reminder that the card-check provision may not be the most important part of EFCA.
I guess we can start writing our Supreme Court amicus briefs on laws that have not been passed yet. Anyway, I agree with Hirsch that the First Amendment analysis is not serious, because it essentially is just a time, place, and manner restriction, and one of commercial, not political speech. As far as Epstein’s takings analysis goes, I’m not sure how the degree of difference between the NLRA as it exists now and the EFCA trigger a new realm of takings. Does it really do anything that a current court of arbitrator can’t do?
I’ve been persuaded by things I’ve read that it might be better for union organizing to simply shorten the time for the secret ballot elections and tweak the procedures. Also, there are other changes that can be made, perhaps not even in the context of union organizing, that can help to aggregate worker power. Anyway, with respect, I think Epstein’s arguments are pretty silly.
