Dear President Obama: Don’t Do These

Every pundit with a keyboard and at least one hand is writing about what President-Elect Barack Obama (I’ll never get tired of that) should do in his first fifteen minutes as president. Obviously, he should immediately rescind stupid Bush executive orders: over the weekend, he indicated that he would do as much. Two Bush executive orders are scheduled for the chopping-block: one that placed a moratorium on federally-funded stem cell research from new lines of embryonic stem cells (remember when that was the most our country had to worry about?) and another that prohibits federal funds from being used for overseas family-planning organizations that suggest abortion among their family-planning options. Obama also plans for his new EPA to reverse the Bush EPA’s decision to prohibit California and a dozen other states from enacting their own carbon emissions standards.

These are great! But there are two things that have been bandied about — with varying degrees of sincerity — that are not that great.

The Employee Free Choice Act

Democrats have been trying to get the Employee Free Choice Act (H.R. 800) passed for over a year. Bush promised to veto it. Obama has said he endorses it. EFCA provides another method for workers to form unions. Currently, the process for forming unions is as follows: a group of workers that wishes to unionize submits a petition to the National Labor Relations Board alleging that a “substantial” number of employees wishes to form a union. This is proven by 30% or more of the employees signing a petition indicating that they want to form a union. The NLRB schedules a hearing to determine if a question of representation exists. If NLRB determines that a question does exist, then it directs “an election by secret ballot” to occur.

EFCA would create an alternative method for forming a union: if a majority of employees signs a petition indicating that they wish to form a union, and those employees sign “valid authorizations” indicating as such, then NLRB will bypass the election process mentioned above and immediately certify the union. This is referred to as “card check” legislation.

EFCA contains other provisions, like permitting binding arbitration if management and the new union fail to agree on a contract within 90 days. It also strengthens protections for employees forming a union, more clearly defining what, exactly, an employer cannot do to employees forming a union (threaten to terminate employees or otherwise harass or discriminate against them during or after the union-organizing process, e.g.). The fine for such interference is increased from $5,000 to $20,000.

Strengthening penalties is the good part of this legislation. Eliminating the secret ballot is the bad part. Labor organizations like the AFL-CIO have been lobbying for this legislation for a long time, arguing that the union-creation process is long and difficult, and in the time between when employees sign the initial petition and when the NLRB calls for the election, management can attempt to dissuade employees from joining the union. If this is true, it still doesn’t explain why the Express process for forming a union must eliminate the secret ballot. The whole point of having a secret ballot in union elections is to protect employees from intimidation or retaliation, from the union as well as from the management. President Obama should veto this legislation or tell Democrats in the Senate to amend it so as to include a provision for secret ballots. There’s no reason why employees shouldn’t have secret ballots.

The Fairness Doctrine

Prior to 1987, there was a fairness doctrine, also called the equal time rule, present in broadcast television and radio. I’ll quote the above-linked website’s description of it, since it’s simple and good:

Simply put, a station which sells or gives one minute to Candidate A must sell or give the same amount of time with the same audience potential to all other candidates for the particular office. However, a candidate who can not afford time does not receive free time unless his or her opponent is also given free time.

(Upon reading the website linked above, I realized that it was written by Howard Kleiman, the very Miami University communications professor whose class first got me interested in First Amendment law!)

Obama and other Democrats have toyed around with the idea of resurrecting the fairness doctrine. A lot of them blame the rise of conservative talk radio (specifically, Rush Limbaugh) on the elimination of the fairness doctrine. With no requirement for equal time for all sides, the airwaves skewed to the right, creating a pulpit from which people like Rush, Michael Savage, Glenn Beck, Sean Hannity, et al. can spew their Republican talking points. Democrats have attempted, in Air America, to create a similar network of their own, but it isn’t nearly as popular.

Legislating “fairness” is a terrible idea, both in principle and in execution. Just last week, the FCC and Fox Broadcasting duked it out in the Supreme Court over the issue of “indecency.” I can only imagine the tremendous amounts of litigation that would ensue from such a doctrine. That’s just the execution. On the issue of fairness, who is the government to determine “fairness”? The idea that the government exists to provide equity of points of view runs contradictory to the First Amendment. All the government does is guarantee that any side has a platform free from government interference; what the sides choose to do with that platform, or the degree to which they choose to use it, is up to them. The fairness doctrine could also give false dichotomy to scenarios in which there really aren’t two points of view (evolution/intelligent design comes immediately to mind; to suggest that both theories have equal veracity and should be debated equally is ludicrous; intelligent design does not deserve to be legitimized by placing it on par with evolution).

President Obama, please don’t pass the Employee Free Choice Act — not unless it’s altered to specify secret ballot elections. And please, please, please don’t bring back the fairness doctrine; it may work pragmatically to stem the tide of conservative talk radio, but as a theory, it’s broken and could lead to the inclusion of points of view that might otherwise be correctly disdained through the marketplace of ideas.