by Clara Morrison

This November, Vermonters will vote on Proposal 3 or “Prop 3,” a constitutional amendment that has largely been advertised as a way to enshrine the constitutional right to organize and collectively bargain. Vermonters already have that freedom. The First Amendment guarantees every worker in this country the right to peaceably assemble, associate, and join a labor union if they choose. No statute or ballot measure is needed to protect a right that already exists and that no one can take away.

What Prop 3 actually does is far more consequential. It would write into the Vermont Constitution a permanent ban on any future right-to-work laws for public or private sector employees, meaning future legislatures would be constitutionally barred from passing legislation banning union-membership-as-a-condition-of-employment agreements.

The language also forbids any law that “interferes with, negates, or diminishes” collective bargaining rights, which could block Vermont from adopting the kind of guardrails on union dues arrangements that other states already have on the books. A requirement letting a worker cancel a dues-deduction authorization on demand, rather than only during a narrow annual opt-out window, could plausibly be read as “diminishing” a union’s bargaining position. So could a rule ending the practice of having public employers deduct and remit union dues on the union’s behalf, effectively serving as the union’s unpaid payroll processor at the expense of the taxpayers. That’s not a modest civil-liberties update, but a severe cap on the legislature’s ability to protect workers and taxpayers from union overreach.

To understand why unions are pushing this amendment so hard, you have to go back to the Supreme Court’s 2018 decision in Janus v. AFSCME. For over 40 years, public-sector unions in non-right-to-work states could collect mandatory “agency fees” from employees who chose not to join the union but were still covered by its collective bargaining agreement. The Court struck that down 5–4, ruling that forcing a public employee to subsidize a union’s negotiations with the government amounts to compelled political speech in violation of the First Amendment. When a union negotiates with the government over pay and staffing, it’s shaping how taxpayer money gets spent — so charging workers for those negotiations forces them to fund political speech they may not agree with.

The practical effect was immediate and large: more than five million public employees nationwide were suddenly free to stop paying union fees. AFSCME’s own internal polling after the ruling found that only about 35% of its members said they would definitely keep paying dues once payment became voluntary. Five years later, a 2023 Mackinac Center analysis found the predicted exodus largely materialized: 22.2% of employees opted-out, meaning roughly 1.2 million fewer public employees are paying union dues nationally than would have been the case had Janus never been decided. Unions across the country lost a guaranteed revenue stream and, with it, some of the certainty that had underwritten their political operations for decades.

Vermont’s Prop 3 is the private-sector unions’ answer to that vulnerability, and an attempt to make sure they never face the same test public-sector unions failed (arguably the strongest evidence in support of the need for right-to-work laws in the first place). If a union only survives when workers are compelled to pay for it, that’s a sign the union doesn’t reflect what most workers actually want, which is precisely the case for letting Vermonters in the private sector make the same choice for themselves rather than locking the status quo in for good.

And yet, unions and their allies in Montpelier are moving to protect themselves by foreclosing the option, following the path Illinois took in 2022 with a similar constitutional right-to-work ban. Illinois remains the only other state to go this far, and its amendment has stirred up legal questions: a lawsuit arguing the ban is preempted by the National Labor Relations Act (which reserves the right-to-work choice to the states, not necessarily to a state’s constitution in perpetuity) was dismissed only as premature, and not decided on the merits. That fight is expected to resume now that the amendment is in effect, and Vermont’s version would likely invite the same challenge.

There’s also a straightforward economic case for keeping the option open, setting aside the compelled-speech and political-power concerns for a moment. A 2021 Harvard University study by economists Benjamin Austin and Matthew Lilley, examining outcomes in counties on either side of state right-to-work borders, found that right-to-work status is associated with meaningfully better economic performance: higher population growth, a higher employment-to-population ratio, a manufacturing employment share roughly 28% higher, lower unemployment, lower (especially childhood) poverty, and substantially higher upward economic mobility for people who grew up in the bottom half of the income distribution. The effects cut across nearly every measure of a healthy, opportunity-rich labor market. And for a state like Vermont, facing population decline, an aging workforce, and out-migration of young workers, permanently closing off a policy tool associated with employment and population growth is a risky choice to lock into the state’s constitution.

The second, more immediate argument against Prop 3 is fiscal. Rising healthcare costs for public employees are costing taxpayers, and Prop 3 would take some of the tools to moderate costs off the table. Arizona’s legislature passed a bipartisan bill this year directing the state to study replacing its traditional group health plan for public employees with Individual Coverage Health Reimbursement Arrangements (ICHRAs) — which Governor Scott recently showed interest in exploring (at least for the private sector) in his July healthcare executive order. Under the Arizona model, the state sets a fixed, tax-free, cost benefit that employees use to purchase the health plan that best fits their needs, and unlike a state group plan, the coverage stays with the employee if they leave public service. Whether or not Arizona’s approach is the right one for Vermont, it represents an option for controlling health costs that would be made unavailable by Prop 3.

Healthcare isn’t the only benefit under strain. Vermont’s pension system is not in good shape either, and rising healthcare costs are compounding that problem, since retiree health benefits are part of the same overall liability. As of the most recent actuarial reporting, the Vermont State Teachers’ Retirement System is about 63% funded and the State Employees’ Retirement System about 73% funded, leaving a combined unfunded liability well north of $2.8 billion, even after several years of reform and strong investment returns pulled the numbers up from a low point of $4.5 billion just a few years ago. Nearly 20% of the state workforce is approaching retirement eligibility, meaning the bill is going to come due quickly. Vermont needs to preserve its ability to negotiate benefit and pension packages and reforms that serve the public interest, not lock in whatever arrangements happen to exist today.

Illinois offers a cautionary tale: its state pension systems are the worst-funded in the nation, sitting at roughly 47% funded with about $143 billion in unfunded liabilities, a crisis driven by a bargaining and legal environment that made structural reform, like shifting new hires to defined-contribution or hybrid plans, legally and politically almost impossible, leaving taxpayers to foot the bill. Vermont is not yet an Illinois. But Prop 3 pushes it further down that road at a time when lawmakers should be preserving every tool available (including the option of right-to-work status and greater bargaining flexibility) to bring the state’s pension obligations under control.

A third concern is that Prop 3 could work against unionized employees in certain situations. A statewide labor mandate, say a paid family and medical leave program, or a workplace heat-and-cold safety standard, could be challenged as improperly substituting legislation for terms that should be settled at the bargaining table, although a Vermont court siding with that theory seems unlikely. Still, when lawmakers guarantee a benefit to every worker regardless of union status, it technically undercuts one of the practical reasons to keep paying dues because it limits negotiation options — which is why there was union pushback when Minnesota adopted its own paid-leave law. If unionized workplaces were then exempted from a state mandate as a result of a successful challenge, Vermont could end up with two different rulebooks, and unionized employees could be deprived of certain benefits because of their union status.

Vermont workers already have the right to organize. What they don’t have, and what Prop 3 would take away before legislators could debate it through ordinary lawmaking, is the state’s flexibility to govern its relationship with unions as circumstances demand (whether that means considering right-to-work, setting reasonable guardrails on union contracts, or controlling pension and healthcare costs) no matter how the economic or fiscal picture changes in the decades ahead. That’s a permanent policy restriction for a temporary political moment, driven by the unions’ response to post-Janus revenue anxieties rather than by any demonstrated failure of Vermont’s current labor law. Voters should ask themselves whether they’re comfortable closing off that option forever.