On Election Day, Conflicting Constitutional Amendments on the Ballot in Illinois and Tennessee

Between 2016 to 2020 voters approved over 700 state constitutional amendments, but not all contrast as starkly as two amendments on the Tennessee and Illinois ballots this coming Tuesday. If approved, Tennessee would enshrine Right-to-Work in its state constitution, while Illinois would constitutionally ban Right-to-Work and add a right to collectively bargain.

The proposed Illinois amendment does not expressly use the phrase “Right-to-Work,” but it addresses it by banning future laws that prohibit employers from making union membership or union dues “a condition of employment.” By allowing companies to make union membership a job requisite, the Illinois amendment would potentially force workers to fund a union they may not support.

Conversely, Right-to-Work laws ensure workers cannot be made to join an association—like a union—or pay dues to it as a requirement for employment. These laws protect freedom of association in the workplace by giving workers the freedom to choose if associating (or not associating) with a union is the best option for them. Not surprisingly, states with this policy tend to be more prosperous and have faster wage growth than non-Right-to-Work states. This is a critical variable that is measured in ALEC’s annual Rich States, Poor States report.

The Illinois amendment contains another component involving the right to organize and collectively bargain. It gives Illinoisians a state constitutional right to “organize and to bargain collectively… for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety at work.”

“Wages, hours, and working conditions” are fairly standard collective bargaining terms, but the ending terms “economic welfare and safety at work” are vaguer. There is already concern that the resolution offers no insight into what exactly these terms include, and as multiple articles indicate, the real battle will be determining what exactly these terms do not include.

Unlike Illinois’ Amendment 1, Tennessee’s Amendment 1 focuses solely on Right-to-Work. The Volunteer State passed Right-to-Work legislation in 1947, joining nine other states that also passed such statutes that year alone, and it still numbers among the 28 states that now have Right-to-Work laws. With its Amendment 1, Tennessee would take these efforts a step further by enshrining Right-to-Work in the state constitution. If voters support the amendment, no future law could be passed “to deny or attempt to deny employment to any person by reason of the person’s membership in, affiliation with, resignation from, or refusal to join or affiliate with any labor union or employee organization.”

Perhaps this seems like an unnecessary step, given that there is no discernable pressure in Tennessee to revoke the Right-to-Work law. However, there has been a repeated effort against Right-to-Work policies somewhere else that could impact Tennessee: Washington, DC.

A federal bill titled The Protecting the Right to Organize (PRO) Act is characterized by organizations like the US Chamber of Commerce and others as a union “wish list” or the “holy grail of pro-union labor law reform.” It includes such measures as allowing secondary boycotts of companies not involved in labor negotiations, removing anonymous voting from unionization votes, and forcing the reclassification of independent contractors to employees. (See ALEC model policies against these practices here, here, and here.)

Nestled amongst these expansions of unionization processes is a small inclusion that would wipe away Right-to-Work laws across the states. It states, “collective bargaining agreements providing that all employees in a bargaining unit shall contribute fees to a labor organization… as a condition of employment shall be valid and enforceable notwithstanding any State or Territorial law.”

The PRO Act passed in the House of Representatives earlier this year but stalled in the Senate, despite serious efforts to whip votes. Not to be deterred, proponents found a second potential vehicle for passage in President Biden’s infrastructure plan, the failed American Jobs Plan, and it was a major topic in President Biden’s Labor Day speech.

The election results on Tennessee’s and Illinois’ amendments will send a clear message about what each state thinks of Right-to-Work laws. They will also send clear messages to residents about how each state values (or undervalues) worker freedom. The Volunteer State could live up to its name by keeping union membership voluntary. Illinois, on the other hand, risks forcing workers to support organizations they oppose and the ensuing economic consequences as companies and individuals continue to flee the state.