Ep. 34: So sue me: Amendment 1 lawsuit

The most important issue on the Nov. 8 general election ballot is something most Illinoisans haven’t heard about yet. As it stands right now, when voters head to the polls this fall, the very  first question on the ballot will ask if Illinois should amend its constitution to grant Illinois union leaders the most extreme powers in the nation.

What is Amendment 1? Dubbed by proponents as the “Workers’ Rights Amendment,” the Illinois Right to Collective Bargaining Amendment, also known as Amendment 1, would place four distinct labor provisions into the Illinois Constitution:

1. a “fundamental right” to organize and bargain;
2. the right to bargain over wages, hours, working conditions, economic welfare and safety at work – i.e., virtually anything;
3. a prohibition forbidding lawmakers from ever interfering with, negating or diminishing those rights; and
4. a prohibition against right-to-work laws.

Taken together, these provisions would give union leaders more power than state lawmakers. The ability of union leaders to override state laws by negotiating contrary provisions into union contracts would be permanently enshrined in the Illinois Constitution.

But is it legal? The National Labor Relations Act governs private-sector collective bargaining nationwide – and preempts state laws that would attempt to do so. The “fundamental right” to collective bargaining isn’t something a state can just grant to private-sector employees, because it is a federal issue.

Simply put, Amendment 1 to the state constitution would violate the U.S. Constitution.

So sue me. Well, we did just that. On April 21, the Illinois Policy Institute joined with the Liberty Justice Center and Chicago Public Schools parents and teachers to challenge the legality of Amendment 1. The case, Sachen v. the Illinois State Board of Elections, et al., seeks to take Amendment 1 off the ballot. Plaintiffs allege the amendment is preempted by federal law, which makes it unconstitutional.

Tell me more. The amendment language is written so broadly that it creates a legal issue. The language in Amendment 1 could have been written to make right-to-work unconstitutional in Illinois, as it did in a previous version of this amendment filed in 2019. It could have been written to guarantee rights to public sector employees only. It wasn’t. Instead, the current phrasing creates a litany of problems, could lead to unparalleled power by a special interest group and most importantly, is unconstitutional.

If the amendment is left as it is, it could lead to years of follow-up legal battles. It should be taken off the ballot now before it confuses voters. And the state should not be spending taxpayer funds promoting an unconstitutional amendment. Unions aren’t taking our lawsuit lightly because they know if we’re successful, it would disrupt their plans for expanding their power. As NPR reports, “The ballot initiative will have a full-scale campaign behind it beginning later this spring, orchestrated by labor-backed independent expenditure committee Vote Yes for Workers Rights.”

What happens if the case fails? “The practical effect [of Amendment 1] is that a union will be able to rewrite laws it doesn’t like just by negotiating a contrary provision in its contract. If the employer doesn’t agree? The union goes on strike. And government officials’ hands will be tied,” I wrote in RealClear Policy. Besides being director of labor policy and staff attorney for the Illinois Policy Institute, I am an attorney on the lawsuit.

Of particular concern is the second provision of Amendment 1 – the expansion of mandatory collective bargaining subjects beyond wages, hours, and other terms and conditions of employment.

In the past 10 years, the Chicago Teachers Union has walked out five times over affordable housing, mental health and other issues that were not wages and hours.

Two of lead plaintiff Sarah Sachen’s four children have learning disabilities. When CTU union bosses closed schools in early 2021 and again in early 2022 to strike over in-person teaching plans, Sachen’s children suffered.

“My middle two, in sixth and third grade, are on individualized education plans, and are still over a year behind due to the school closures. Remote learning is dreadful for children with special needs. It’s so difficult to catch them up,” Sachen said. “The strike just disrupts everything because you’re ripping schedules out from children who are used to a defined structure.”

The Illinois Constitution would empower government union leaders to demand and strike over a much wider range of topics including social agendas on housing, immigration, “restorative justice,” wealth redistribution and defunding the police. It could create a precedent harmful to parents and students.

Stay tuned. A Sangamon County judge has been assigned to the case and will evaluate the plaintiffs’ petition. If she grants our request to hear the case, it will move forward and she will determine whether the amendment should be removed from the ballot. The case is likely to move through the appeals courts before there is a final determination.