This week, the state of Michigan passed and Governor Rick Snyder signed into law new right-to-work legislation. The two measures ban unions from requiring workers to pay membership dues. The tactics employed by supporters to pass the measures show they have learned from recent efforts. The measures were attached to an appropriations bill, which exempts it from being taken to a referendum. The measures also exclude firefighters and police, groups that were critical in overturning similar measures in Ohio. The right-to-work effort underway in a number of states also demonstrates the power of conservatives at the state level, despite the Republican loss in the presidential election.
Last week, Sophia Lee, an assistant professor of law at the University of Pennsylvania Law School, presented a chapter on her forthcoming book at the Miller Center’s GAGE Colloquium. Lee’s new book provides insight into the current situation by examining the history of two important and powerful, but competing movements since the 1930s – the civil rights movement and the right-to-work movement. Her book explains why the state action doctrine survived the civil rights and conservative revolutions, and explores the implications of this history for the workplace and beyond.
The thriving right-to-work movement at the state level today has its roots in the 1940s. Though it hasn’t always been politically successful, the right-to-work movement has been deeply intertwined with the conservative and anti-New Deal movement. Lee documents one of the earliest conservative efforts to apply the Constitution to the workplace. In 1944, Hollywood impresario and showman, Cecil B. deMille brought a lawsuit to the court challenging the constitutionality of a one-dollar fee levied on him by his union. Lee notes that this was the first of many campaigns to pass a right-to-work law banning mandatory support for unions in the state of California. According to Lee:
Like the black railroad workers of his day, deMille struggled to articulate why the Constitution reached his workplace. To say he was unsuccessful would be an understatement. The California courts found his claim near incomprehensible. But deMille was not deterred. He spent the rest of the 1940s building a foundation to champion the right-to-work and taking his constitutional theories to the prominent public pulpits at his disposal.
In the 1950s, right-to-work advocates, with the help of deMille, formed their first organizations dedicated to getting the Supreme Court to declare mandatory support for unions “in conflict with the Bill of Rights.” Although the right-to-work movement won potentially promising precedent in the Supreme Court, it didn’t achieve all that it had hoped for.
It wasn’t until the late 1970s that a vast majority of workers finally surmounted the state action hurdle when the federal court extended constitutional principles to workplaces governed by the National Labor Relations Act. In 1979, Harry Beck, a telephone company worker, won a federal district court ruling against the Communications Workers of America, arguing the union had violated his First Amendment rights by collecting agency fees beyond those “allocable to collective bargaining, contract administration and grievance adjustment.”
The right-to-work movement also achieved an important political triumph when the Republican Party pledged support for its efforts in its 1980 Party Platform:
The Republican Party reaffirms its long-standing support for the right of states to enact "Right-to-Work" laws under section 14(b) of the Taft-Hartley Act.
The political freedom of every worker must be protected. Therefore, the Republican Party strongly supports protections against the practice of using compulsory dues and fees for partisan political purposes.
Yet, despite Ronald Reagan’s election, right-to-work legal efforts were complicated by the administration’s competing commitments to the Republican Party and a commitment to a strict construction of the Constitution. Lee examines the challenges to Beck’s case and the role of the Reagan Justice Department in the Supreme Court’s hearing of the case. While the right-to-work movement remained an important Republican constituency, according to Lee, constitutional politics in the Reagan administration placed the movement outside out of the conservative legal mainstream.
Even in spite of historical setbacks, the right-to-work movement appears to be on the up-swing once again. This time around, rather than tactically focusing on the courts, its efforts center on targeting state legislatures. For more on the history of right-to-work efforts and the conservative movement, read Sophia Lee’s paper here.