The Wall Street Journal has an interesting point of view on card check today.

Why Card Check Is Unconstitutional

Only secret ballots are consistent with the First Amendment.

The Employee Free Choice Act of 2009 — otherwise known as “card check” — is organized labor’s dream. As a practical matter, this legislation, pursued by both the Obama administration and the Democratic Congress, would do away with the secret ballot in the unionization process. Although card check’s advocates and critics have spilled much ink arguing about the bill’s fundamental fairness to labor and management, so far the debate has not focused on the other compelling interest at stake: the constitutionally protected right of employees to keep their opinions on controversial issues like unionization to themselves. This is card check’s Achilles’ heel.

The Supreme Court has interpreted the First Amendment’s guarantee of freedom of speech, along with the Fifth and 14th Amendment due process clauses, to protect a variety of expressive and associational rights. The right to speak and associate anonymously is among those rights. Indeed, anonymous speech has a long and honored tradition in American politics. Much of the political agitation leading up to the American Revolution was necessarily anonymous in order to avoid British sedition charges. And three of the Constitution’s Framers — James Madison, Alexander Hamilton and John Jay — wrote the Federalist Papers supporting its ratification under the anonymous pen name “Publius.”

The Supreme Court has consistently recognized the importance of this type of political discourse. The reason is obvious: Public speech on contentious issues often inflames passions, prompting intimidation and retaliation. Outing speakers who prefer anonymity chills speech, and has the potential to suppress it entirely.

Read the full piece

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