A lot of people assume that unions are legally the same as corporations, but that’s not true. The First Amendment freedom of assembly is interpreted to grant a wide area of protection to any gathering of like-minded individuals for any purpose (right up until they start committing crimes or waging war against the United States). A group of like-minded people, of any size, has the right to gather into an association without any paperwork or legal requirements. A fan club that has a large membership and officers with specific duties and may even collect membership fees is a good example of an association that may not have any legal recognition as such. Similarly, those unions of laborers that are organized but not incorporated should be interpreted as expressions of each person’s individual right of assembly, even when such unincorporated unions have agreed to be recognized as labor unions under the Fair Labor Standards Act (FLSA), which is the position taken in the FSFP, MTA and TAG proposals.
A very small percentage of labor unions are actually incorporated or have created organizations that are incorporated in some way. This is in addition to being regulated under the FLSA. The National Education Association is registered as a “labor union” in most states but incorporated as a “professional association” in a few. The Writers Guild of America, West, operates a separate foundation that is incorporated as a non-profit charitable organization. Many unions operate their own Political Action Committees (PACs) or super PACs, organized under IRS code section 501(c) or section 527, which might or might not be incorporated separate from the union itself.
When the question of unions arises in a conversation on amending the Constitution, it’s important to note that all collections of individuals can conceivably be described as unions and that members enjoy the same First Amendment freedom of association as anyone else, irrespective of the legal structure that the union operates under. It is not those individual union members, with their unalienable freedom of association, that are being addressed with respect to abolishing constitutional rights for artificial entities. It is only the legal apparatus – the piece of paper that represents the union organization – that is being described here.
A constitutional amendment that abolishes constitutional rights for all artificial entities would, by definition, abolish constitutional rights for unions inasmuch as they are legal fictions created by the association of their members but it would not, in any way, diminish the right of the members or, therefore, the right of unions to exercise individual member rights in appropriate circumstances, including protecting any encroachments by government on individual constitutional rights as expressed by association with the union.
In this sense, the FSFP, MTA and TAG proposals treats unions exactly the same as incorporated businesses, placing both on a level playing field within the framework of the U.S. Constitution, without diminishing those rights that individuals exercise by their association with unions. Many anti-amendment critics will raise the specter of unions to suggest that organizations like FSFP, MTA and TAG are trying to create an unfair advantage for organized labor. Since the language in all three proposals treats labor unions exactly the same as incorporated businesses, this is patently false. On the other hand, some of the concern emanates from union households and their supporters who see an amendment as yet another legal maneuver to marginalize labor and diminish membership. Nothing could be further from the truth and that’s why it’s critically important to understand that those unions really have much more to gain than lose with the proposals from FSFP, MTA and TAG.
As interpreted in the Supreme Court decision in the case of Knox v. SEIU, among other cases, union leaders do not have the same unilateral authority to direct member resources that corporate CEOs do in commanding shareholder resources right now. Citizens United didn’t level anything. But there is a silver lining in this pretzel logic of the court. Leaders of labor unions are construed in law to be deriving any standing they have to exert constitutional rights directly from the individual rights of their members, whereas corporations are construed to be asserting the constitutional rights of the artificial entity that is the corporation itself. Stripping constitutional rights from both types of legal fiction initially places the union in a better position to assert the individual rights of its members than corporations do vis-à-vis their shareholders, many of which are artificial entities themselves with no corresponding rights to assert. And the smaller pool of retail investors they do count as shareholders are routinely kept in the dark and asked to sign-off on proxy forms once per year. By contrast, unions have decades of experience organizing rapid reaction processes and pulling together last-second votes of the full membership. The advantage in spending and lobbying power enjoyed by corporations can be offset by the advantage unions have in organizing and outreach.
Constitutional rights for legal fictions gives corporations, with the massive resources at their disposal, equal standing with individual citizens and immunities from government intrusion that labor unions do not currently enjoy. Unions, already reeling from a rapid, multi-decade decline in membership, resources and bargaining power, are forced to prioritize their spending on activities that can have the widest impact. The result is less litigation to force corporate criminals to comply with labor law in order to free up resources to support politicians that promise to fight for the kind of legislative relief that can improve conditions for the largest number of workers. Abolishing rights for all legal fictions does two things: it undermines a whole swath of legal mechanisms corporations have used to dismantle hundreds of regulatory regimes, including labor rules; and, as an important prerequisite to dramatically decreasing the amount of money in political campaigns, it would ultimately free-up resources to pursue vigorous litigation to force corporate scofflaws into compliance.
As part of dramatically decreasing the amount of money in politics, one long-term goal is to reduce the non-stop media blitz that has characterized modern campaign seasons and empower the Congress to enact strict firewalls between anything goes editorial opinion and (best good-faith effort at) truthful news reporting. With strict rules in place, both corporations and unions will have less opportunity to spend large sums on media campaigns. This allows unions to redirect resources to their natural advantage in retail politics – organizing, outreach, voter education, and get-out-the-vote efforts. The decades-long decline in union influence and membership is attributable, in large part, to the manipulation of the truth by the corporate media. Breaking up the media conglomerates and providing sanctions for deliberately spreading falsehoods under the banner of journalistic reporting would break that party up almost instantaneously. This doesn’t represent a new advantage for unions, but the removal of a significant disadvantage, like lifting an anvil off one’s head.
Those decades of non-stop corporate media manipulation have turned unions into a lightning rod for partisans. Treating corporations and labor unions as equals in the Constitution removes the partisan excuse from corporatist arguments for opposing an amendment. Including all legal fictions in the proposal doesn’t just remove the appearance of partisan politics, it actually makes the proposal non-partisan. We may not ever convince the 20% of far-right reactionaries that we’re not out to get them, but we can’t do this without their right-of center cousins, and special treatment for labor unions would be a barrier to their support. More American voters are slowly becoming aware that unions have been treated more as enemies of the state than associations of citizens in recent decades, despite media coverage to the contrary. Treating both sides the same, not giving an advantage to one side or the other, in addition to being the most honest approach to the Constitution, is the most reliable way to win support from political centrists and self-described moderate conservatives.
Probably the most principled reason on a constitutional level is that unions subject to regulation under the FLSA are essentially artificial entities in law, created by the power of government. And governments at all levels are creations of we the people, the original sovereign power of the United States. We the people have rights and we endow our governments with powers, which they use to carry out the duties we assign to government, like protecting the peace and defending the nation. One of those powers is the power to create charters that endow individuals and groups with extra privileges and immunities for the purpose of engaging in a variety of activities. It makes no structural sense to endow the creations of our creations with the same unalienable rights as the original creators, us. We the people are at the top of the food chain. Government is subordinate to the people. And legal fictions of all types, including labor unions, are subordinate to government. Ignoring that intrinsic structural principle is just as constitutionally unjustifiable as the notion of corporate rights itself.
In conclusion, it cannot be argued that labor unions depend on constitutional rights to protect their membership because no such interpretation exists right now. The Supreme Court has already prevented labor unions from asserting their own rights as legal fictions, forcing unions to depend on gaining standing in court by asserting the individual rights of its members. For all intents and purposes, labor unions already occupy the legal class that the FSFP, MTA and TAG proposals would place all legal fictions within. If adopted as written, corporations and labor unions, as artificial entities, would have the identical constitutional status. Americans believe in a level playing field but most don’t realize just how few rights unions share with corporations right now. The average American is already sold on equal treatment under the law. Placing labor unions with all other legal fictions in the same constitutional class is keeping with that spirit while also providing unions with a tactical advantage they do not have with respect to corporations.