State Senator Gilbert Baker is having trouble writing a constitutional amendment that he hopes might carry him to the U. S. Senate. That ought to be hard, if not impossible, to do. Manipulating the state’s fundamental law for political gain once got you nowhere, but it has become the go-to strategy for politicians and parties.
Jim Johnson circulated petitions in 1956 to put on the ballot a constitutional amendment requiring state officials to do everything possible to prevent the federal courts from integrating the public schools. The amendment passed, to be repealed by voters nearly 40 years later, but Johnson lost his simultaneous bid to be elected governor.
But for the past 20 years Republicans have put emotional issues on the general-election ballot that Republican candidates can rally around and get out the vote: abortion, gay marriage, gay adoptions and foster parenting. It has proven to be moderately effective in ramping up the vote for Republicans.
Union baiting looks like the strategy for 2010.
Baker, the former state Republican chairman who is pondering a race for the U S. Senate, filed a proposed constitutional amendment that he says would require elections by secret ballot before a company would have to bargain with a union. That would be in case Congress and the president change the federal labor rules to require employers to bargain with employees when most of them signed cards for a union to represent them on wages and benefits. The state Constitution in that eventuality would still protect the company from having to negotiate with its employees.
Of course, Baker does not describe his proposal in those terms. He says it’s all about protecting the employees by forever guaranteeing them the secret ballot. It is not about the secret ballot but about labor-management relations. Now, labor-management decisions rest entirely in the hands of the employer. No matter how many union requests that workers sign, the company decides if an election will be held and it dictates the terms. The union card-check bill pending (and doomed) in Congress would let a majority of workers decide if an election will be held or if there will be negotiations for a contract.
Twice, the attorney general has rejected Baker’s proposal. It is too ambiguous for voters to know what they are voting to do, he said. Baker and the group he says he represents, something called Save Our Secret Ballot in Arkansas, will get another chance to write an amendment that is clear and viable. As it was submitted, it might require elections in any number of situations.
If election by secret ballot is a sacrosanct way of transacting commercial activity, then indeed it should be forcibly applied to other commercial matters as well, perhaps the choosing of company directors and executive officers, the awarding of contracts and subsidiary relations. There is nothing about a wage contract that should make it subject to a secret ballot. It is one form of democratic expression, a fairly recent one, but not the only legitimate one.
A bigger hurdle for Baker is that nothing that he and corporate lawyers can write into the Arkansas Constitution will change the timeless rule of constitutional federalism. The federal government has pre-empted jurisdiction in labor-management relations. A congressional act, even a regulation of the National Labor Relations Board, pre-empts any contrary provision of the state Constitution. Baker’s amendment, if it is ratified, won’t alter the rules on bargaining that Congress lays down.
Arkansas learned that when the 1988 amendment prohibiting the use of public funds for abortions was invalidated after its first application because it ran afoul of federal regulations for Medicaid.
But that really is immaterial. Putting it on the ballot and giving candidates a chance to stand foursquare for the secret ballot and against union bosses are all that matter. The mere utterance of “union bosses” gets people’s blood boiling. The amendment is a means, not an end. Who cares whether the proposition carries or if it ever does anything?