This Article conceptualizes a novel basis for defending laws that strengthen labor unions from First Amendment challenge: the argument that these laws are adequately tailored to advancing a compelling state interest in reducing economic inequality’s transmission into political inequality. The Article makes two principal contributions. First, it updates criticisms of the Supreme Court’s campaign finance decisions’ rejection of any compelling interest sounding in political equality. The Article does so by bringing recent constitutional scholarship to bear on that criticism and by explaining how recent improvements in social scientists’ ability to track different economic brackets’ political influence call for the Court to reexamine the prudential concerns that motivated the Court to reject such an interest. Second, the Article is novel in conceptualizing how the interest in reducing economic inequality’s transmission into political inequality could provide a basis for defending union-strengthening laws that have faced, currently face, or may soon face First Amendment challenge.
To show that such laws are quite plausibly adequately tailored to advancing this interest, the Article explains how unions reduce wealth-based distortions of political influence both by reducing economic inequality through collective bargaining and by organizing political power among low-income and middle-class workers. This dual mechanism distinguishes union-strengthening laws from other methods of reducing wealth-based political inequality. The Article focuses especially on showing why this distinction means proposals to reduce economic inequality through tax and transfer are likely not less restrictive alternatives to First Amendment-impinging laws that strengthen unions.
Political Equality and First Amendment Challenges to Labor Law,
90 U. Cin. L. Rev.
Available at: https://scholarship.law.uc.edu/uclr/vol90/iss2/4