Understanding Proposal 3 – The Right to Collectively Bargain

On November 3, Vermont voters will be asked to decide whether to amend the Vermont Constitution to include protections for collective bargaining.

Proposal 3 is being described as a workers' rights amendment, but there is more to it than simply protecting the right to join a union.

What does Proposal 3 actually do?

The amendment would:

1. Establish a constitutional right for employees to organize, join a labor union, and collectively bargain over wages, hours, working conditions, and workplace safety.

2. Prohibit future Vermont laws that interfere with, negate, or diminish those collective bargaining rights.

3. Prevent future state laws from prohibiting agreements between employers and unions that require union membership as a condition of employment.

That third provision is particularly important because it would prevent Vermont from adopting a right-to-work law, which generally prohibits requiring union membership or financial support as a condition of employment.

Don't workers already have these rights?

Yes, many Vermont employees already have collective bargaining rights under existing state and federal laws.

The distinction is that Proposal 3 would place additional protections into Vermont's Constitution, making them more difficult to change through the ordinary legislative process.

Why do supporters favor Proposal 3?

Supporters, including the Vermont AFL-CIO, argue that collective bargaining gives workers a stronger voice in negotiating wages, benefits, workplace safety, and employment conditions.

They also argue that union representation benefits everyone covered by a collective bargaining agreement, including employees who might not otherwise choose to contribute financially to the union.

Supporters believe these protections should not depend on which political party controls the Legislature. They point out that similar constitutional protections were adopted in Illinois in 2022.

Why do opponents have concerns?

Opponents generally raise three issues.

Individual worker choice: They argue that employees should have the freedom to join and financially support a union, but also the freedom to decline. Proposal 3 would prevent Vermont from adopting a right-to-work law that guarantees that choice.

Future legislative flexibility: Once these provisions are placed in the Constitution, future lawmakers would have less flexibility to change Vermont's labor laws. Changes inconsistent with the amendment could require another constitutional amendment rather than an ordinary legislative vote.

Affordability and economic competitiveness: Critics argue that restricting future labor-law changes could affect employment costs, government spending, and Vermont's ability to compete economically. They point to differences in costs and population growth between right-to-work states and other states. However, these comparisons do not establish that union laws alone caused those differences.

What happens if Proposal 3 passes?

The Vermont Constitution would be amended to include these collective bargaining protections. Existing federal labor laws would still apply, and Vermont would be constitutionally prohibited from adopting a right-to-work law.

What happens if Proposal 3 fails?

The Vermont Constitution would remain unchanged. Existing collective bargaining protections under state and federal law would remain in place, and future legislatures would retain their current authority to consider changes to state labor laws, subject to federal law and other constitutional protections.

Understanding Proposal 4 – Vermont's Equality of Rights Amendment

On November 3, Vermonters will vote on Proposal 4, a proposed amendment to the Vermont Constitution that would add a new Article 23 addressing equality of rights.

At first glance, the proposal sounds straightforward. Who doesn't believe in equal rights? However, as with any constitutional amendment, the actual language matters.

What would Proposal 4 do?

The amendment contains three major provisions:

1. Equal protection: It would explicitly guarantee equal protection under Vermont law.

2. Protected characteristics: It would prohibit the state from denying equal treatment based on race, ethnicity, sex, religion, disability, sexual orientation, gender identity, gender expression, or national origin.

3. Measures addressing historical discrimination: It would allow measures intended to provide equality of treatment and opportunity for groups that have historically experienced discrimination.

It is the wording and potential interpretation of these provisions, particularly the third, that have generated disagreement.

Don't Vermonters already have equal rights?

Vermont already has significant protections against discrimination through state law, the Vermont Constitution, and the Equal Protection Clause of the U.S. Constitution.

Supporters argue that existing protections should be explicitly strengthened in Vermont's Constitution so they cannot easily be changed by future legislatures.

Opponents question whether the additional language is necessary and whether it could create new legal uncertainty.

Why do supporters favor Proposal 4?

Supporters argue that the amendment would provide stronger, lasting protection against discrimination.

They believe that explicitly identifying protected characteristics would give courts clearer guidance and ensure that future lawmakers cannot easily weaken these protections.

Supporters also defend the final provision, arguing that treating people equally under the law does not necessarily prohibit programs designed to address longstanding discrimination.

The Vermont Human Rights Commission has expressed support for protecting the ability to maintain such programs.

Why do opponents have concerns?

Opponents have raised several questions about the amendment's wording and possible consequences.

1. Why list certain protected groups but not others?

Although the amendment begins by guaranteeing equal protection to everyone, its second sentence specifically identifies nine protected characteristics.

Constitutional law professor Peter Teachout raised concerns about using a closed list rather than more inclusive wording.

For example, age, weight, body type, and other characteristics are not specifically identified.

Teachout suggested using language such as "on grounds such as" to make clear that the list is illustrative rather than exhaustive.

The concern is not necessarily with protecting the listed groups, but with whether future courts might interpret the language differently for characteristics that are not specifically named.

2. What does the final sentence mean?

The final sentence allows measures intended to provide equality of treatment and opportunity for groups historically subjected to discrimination.

Supporters view this as an important safeguard for programs addressing existing inequalities.

Opponents question whether it could allow government programs to provide different treatment based on group identity.

The language does not automatically establish or fund new programs, but it could become relevant when courts evaluate challenges to existing or future policies.

3. Could Proposal 4 affect government spending?

Some opponents argue that the amendment could provide additional constitutional support for diversity, equity, and inclusion programs, potentially affecting future government policies and expenditures.

Supporters respond that these programs help address barriers and unequal opportunities.

The amendment itself does not appropriate money or establish a specific spending requirement. Any financial impact would depend on future policies and legal interpretations.

4. Is the amendment necessary?

This is another central disagreement.

Supporters believe constitutional protection is appropriate precisely because ordinary laws can be changed.

Opponents argue that Vermont already has extensive protections and that constitutional amendments should be written with exceptional clarity before becoming part of the state's founding document.

What happens if Proposal 4 passes?

The proposed Article 23 would become part of the Vermont Constitution. Courts would then interpret and apply its provisions when relevant legal questions arise.

Existing state and federal constitutional requirements would continue to apply.

What happens if Proposal 4 fails?

Existing constitutional and statutory protections against discrimination would remain in effect.

The proposed Article 23 would not be adopted. Lawmakers could pursue a differently worded amendment in the future, but the constitutional amendment process would have to begin again.