Both right-to-work and union rights are on midterm ballots. What would they do?

Two midterm ballot measures, in states roughly 500 miles apart, offer two visions of labor rights in America.

The first referendum, in Illinois, would seek to codify collective bargaining rights in the Illinois constitution. It wouldn’t be the first time a state has done so — New York, Hawaii, and Missouri also have such state constitutional protections — but it would be the first time voters affirm union bargaining rights via ballot measure. Illinois would also become the first state in the nation with a constitution that bans laws that exempt workers from paying dues for union representation, colloquially called “right-to-work” laws.

In Tennessee, a state where unions have comparatively much less strength, voters will decide on the opposite question: whether to codify “right-to-work” in their state constitution. Tennessee is one of 27 states with “right-to-work” laws already on the books, but only nine have theirs enshrined in their state constitution. The last state to do so was Alabama in 2016.

Even though Tennessee has had its right-to-work law enacted since 1947, Republicans in the state say they need to take additional steps to protect Tennessee’s status quo, pointing to Congressional Democrats’ “Protecting the Right to Organize Act,” which passed the House in 2021. The Democrats’ omnibus federal labor reform bill would, among other things, ban state right-to-work laws. Tennessee Republicans also point to Democrats’ recent failed attempt in Virginia to repeal their state “right-to-work” law as more evidence that Tennessee’s law could come under future threat.

Over the last decade the number of states with “right-to-work” laws rose from 22 to 27, and Sen. Rand Paul (R-KY) has introduced the “National Right-to-Work Act” in an attempt to cement the anti-union statute country-wide.

Meanwhile, public opinion for unions is at its highest point in nearly 60 years, with 71 percent of Americans expressing support in Gallup’s most recent annual survey. The upcoming midterms offer a glimpse at how these favorable feelings may play out on the ground.

Tennessee’s constitutional Amendment 1: Codifying “right-to-work”

Tennessee has been a “right-to-work” state since 1947, the same year Congress passed the Taft-Hartley Act that restricted the power of labor unions. Supporters of codifying right-to-work in Tennessee’s constitution say their law has driven job growth and worker pay in the state, and will ensure Democrats can’t repeal or chip away at it in the future.

The state’s top Republicans are gunning for the amendment. GOP Governor Bill Lee declared a “Right-to-Work Week” in early March to honor the “Tennessee tradition” of respecting whether one wants to be in a union or not. More recently Lee and former Gov. Bill Haslam released a video urging voters to approve the amendment, saying the 75-year-old state statute has been “a key ingredient in the effort to bring high-wage jobs to Tennessee.”

Erik Schelzig/AP

Tennessee is not a state where unions have much power, and workers lost two factory-wide UAW union drives at the Volkswagen plant in Chattanooga in 2014 and 2019. Still, UAW represents about 3,000 workers at the General Motors plant in Spring Hill, and unionized Kellogg workers in Tennessee went on strike last fall.

The Tennessee AFL-CIO and state Democrats are leading the fight against the amendment, launching ads seeking to educate voters about the consequences of codifying right-to-work in the state constitution. “We’ve seen big wins this year, last year, at John Deere and we can continue this momentum if we get unionization across this state,” said one Spring Hill UAW member in an ad released last month. “One way to do that is to make sure this amendment fails.”

Representatives from the coalitions fighting against and for Amendment 1 did not return requests for comment.

Business groups for now are expressing confidence about their chances, and point to a 2019 survey from the Beacon Center, a conservative think tank based in Nashville, that found 68 percent of Tennesseans back right-to-work, with 13 percent opposed and 19 percent undecided.

Illinois’s Amendment 1: Right to Collective Bargaining

Illinois, a state with trifecta Democratic control, is in a different position. Still, it was less than five years ago that the state had a Republican governor who prioritized weakening organized labor. As part of his economic development plan, former Republican Gov. Bruce Rauner promoted “right-to-work zones” — urging local towns or counties to vote on whether workers should have to pay dues when represented by a union.

Rauner was also behind the landmark Janus v. AFSCME Supreme Court case that ultimately barred public-sector unions from charging fees to non-members for collective bargaining.

When Democratic Gov. J.B Pritzker was elected in 2018, he quickly signed a law banning “right-to-work zones.” Still, union advocates say they don’t want to keep playing ping-pong with each administration, and see the Illinois constitution as a more sturdy vehicle for ensuring worker rights. The impact of the pandemic on workers, supporters say, also heightened their resolve to push for the amendment.

“I think the fundamental thing people are responding to is that collective bargaining is one of the most powerful ways to raise wages,” said Joe Bowen, a spokesperson for the Vote Yes for Workers’ Rights coalition. “And your workplace should never be less safe just because someone else is holding political office or because of the Supreme Court.”

The amendment to the Illinois Constitution’s Bill of Rights would provide “employees” with “the fundamental right to organize and to bargain collectively.” The amendment also provides “that no law shall be passed that interferes with, negates, or diminishes the right of employees to organize and bargain collectively” — the aforementioned provision banning right-to-work.

Seth Perlman/AP

Opponents have accused union advocates of intentionally misleading the public about who would benefit from the amendment, since the National Labor Relations Act (NLRA) forbids states from interfering with private-sector labor law. On the Vote Yes for Workers’ Rights coalition website it states the amendment would “guarantee every Illinoisan has the right to join together with other workers to negotiate for better pay, improved benefits, and safe working conditions.”

Democratic state Sen. Ram Villivalam, a sponsor, acknowledged the amendment intentionally “refers to ‘employees,’ and not to workers or individuals” given the National Labor Relations Act’s power over private-sector workers. Bowen defended the language. “It applies to everyone in the state, but more specifically it applies to any employer-employee relationship not covered by the NLRA,” he told Vox. “There are hundreds of thousands of employees who do not currently have protection under the NLRA because they’re in exempt classes — like supervisors or agricultural workers — or they’re public sector.”

Conservative opponents also claim the measure would unduly empower public sector unions, leading to longer and more expensive contract negotiations, higher taxes to fund pensions and other benefits, and more political resistance to budgetary reforms. The conservative Wall Street Journal editorial board called the Amendment “a Big Labor Takeover.” The Illinois Policy Institute, a libertarian think tank, argues the amendment will raise property taxes by $2,100 over the next four years if the amendment were to pass, an estimate other labor experts say is unfounded and Bowen describes as “just fundamentally not true.”

A study published by researchers at the Illinois Economic Policy Institute and the University of Illinois at Urbana-Champaign contends the amendment would be good economically for the state, and that union workers have fared better and paid more in income tax than non-union Illinois workers.

While business groups oppose the amendment and say it will make the state less competitive, groups like the Illinois Chamber of Commerce are not actually spending big to defeat it, acknowledging that their resources are being saved for Illinois Supreme Court races and some state legislative seats.

Shaun Richman, a labor scholar at SUNY Empire State College, told Vox that unions in Michigan a decade ago tried to protect union rights and ban right-to-work via ballot initiative, but were unsuccessful. “The effect, however, was to piss off a Republican governor who had been willing to let the matter lie and turned around and pushed for the right-to-work law as a ‘fuck you’ to labor who wouldn’t leave well enough alone,” he said. “So, in that regard, I am a little surprised to see unions in Illinois try the same thing.”

What research says about right-to-work

The Taft-Hartley Act, which enabled state right-to-work laws, followed a period of strong labor organizing in the 1930s and ’40s. A dozen states, primarily in the south, passed the anti-union statutes following the Taft-Hartley Act, with laws spreading over time to the southwest where unions were also politically weak.

FPG/Archive Photos/Hulton Archive/Getty Images

“Really, unions have only experienced right-to-work laws as an attack on union membership and financial resources in union strongholds since the Tea Party wave of 2010,” said Richman.

Interpreting the research on right-to-work can be tricky and economists have debated how much the laws can explain various patterns in wage and job growth. Additional confusion comes from the fact that sometimes the conclusions of right-to-work studies differ depending on the ideological leanings of the researchers. The right-wing National Institute for Labor Relations Research, for example, found that right-to-work states had an average job growth rate twice that of non right-to-work states between 2008 and 2018, and experienced greater economic growth and lower unemployment on average.

The left-leaning Economic Policy Institute (EPI), by contrast, has found that right-to-work laws did not boost job growth and are associated with lower wages and benefits for all workers. “By restricting the capacity of unions to bargain for workers and thus lowering wages and benefits, RTW laws lower tax revenues and reduce aggregate demand,” EPI said in a report published in 2018.

Two economic papers published in the last year also reached different conclusions about the consequences of right-to-work laws. The first found right-to-work laws associated with increased manufacturing employment, increased employment, and greater upward mobility. The second found that right-to-work laws lower wages and unionization rates.

Despite the high approval ratings unions have right now among the American public, Richman says banning right-to-work will always be a tough issue for labor to campaign on, since it doesn’t immediately impact worker power or win new unions for workers.

That said, Richman said he feels a rare bout of optimism regarding labor’s future on the federal level. “If the Democrats hold the House, make gains in the Senate, and end the filibuster in order to protect abortion rights there’s a good shot at following that up with fixing labor law,” he said. “It’s not lost on people that the map of abortion bans and the map of right-to-work states almost perfectly overlap for very similar reasons. I think people would be ready for an argument that some human rights are so important that they can’t be left to the states to play political football.”