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Do Democratic Party employees qualify for union protection? Missouri case could have big impact

From left, attorneys Eric Banks, Catherine Hanaway and Bill Freivogel.
Evie Hemphill
St. Louis Public Radio
From left, attorneys Eric Banks, Catherine Hanaway and Bill Freivogel.

The National Labor Relations Board issued a complaint against the Missouri Democratic Party in September, saying it violated federal law by firing a data specialist who’d been working to organize party employees.

But the party is fighting back. As the St. Louis Post-Dispatch reports, it says the federal agency has never asserted jurisdiction over a political party before — and that doing so raises First Amendment issues. Telling the state party how to do business would represent unconstitutional governmental interference with its right to free speech, it argues.

At least one prominent Republican agrees. Speaking on St. Louis on the Air’s Legal Roundtable on Tuesday, former speaker of the Missouri House Catherine Hanaway said the case could have huge consequences, not just in the Show-Me State but across the U.S.

The U.S. Supreme Court has held that political contributions are a form of speech, noted Hanaway, who is currently chair of the Husch Blackwell law firm. She believes that translates to party activity.

“When it so directly impacts the ability to state a message and have an impact on the outcome of elections, I think it's protected by the First Amendment,” Hanaway said.

Of Missouri Democrats, she added: “As much as I might disagree with just about everything they have to say, I think they should be able to speak and not be governed by the National Labor Relations Board and its employees [not] allowed to unionize. Everything about political campaigns could be corrupted by that decision, quite honestly.”

Bill Freivogel, an attorney and journalism professor at Southern Illinois University Carbondale, noted that the National Labor Relations Board has jurisdiction over news organizations, despite their First Amendment protections.

“You do have to look at the statute that defines ‘employer,’ and it has exclusions for the United States [government employees], Federal Reserve banks, state government, labor unions themselves,” he noted. “But it doesn't have any exemption for political parties.”

“It doesn’t right now, Bill,” Hanaway replied. “I assure you, if this keeps going the wrong way, Congress will act.”

Eric Banks, a former city counselor and state prosecutor now in private practice at Banks Law, said he agreed with Freivogel that the law as now written is on the workers’ side. He believes the party workers should be allowed to unionize.

Of the Democratic Party’s argument that it’s not engaged in “commerce,” he said, “I can’t think of too many folks who exist without engaging in commerce. I think that when I buy a stamp and put it on an envelope and mail it to somebody to advocate for a position one way or the other, that's engaging in commerce. So I am not buying the argument that they're not engaging in commerce.”

Beyond the merits of the Missouri Democrats’ argument, Hanaway noted the juxtaposition of a political party dependent on union support fighting unionization of its own workers. “I think its opposition is very ironic,” she said.

The NLRB, the Rams and more
Listen to St. Louis on the Air's Legal Roundtable tackles the issues of the day

Legal Roundtable panelists also discussed the surprisingly short sentence given to a former St. Louis police officer who was found guilty of beating a colleague working undercover as a protester, the litigation surrounding the Rams’ unceremonious departure from St. Louis, and a controversy surrounding attorney-client privilege in a high-profile Ozark County murder case.

St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill and Lara Hamdan. Jane Mather-Glass is our production assistant. The audio engineer is Aaron Doerr.

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Sarah Fenske served as host of St. Louis on the Air from July 2019 until June 2022. Before that, she spent twenty years in newspapers, working as a reporter, columnist and editor in Cleveland, Houston, Phoenix, Los Angeles and St. Louis.
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