In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3146

Alexis M. Herman, Secretary of Labor,

Plaintiff-Appellee,

v.

Local 1011, United Steelworkers of America,
AFL-CIO, CLC,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. CA 2:97-CV 409--Rudy Lozano, Judge.


Argued February 11, 2000--Decided March 23, 2000



 Before Posner, Chief Judge, and Manion and Kanne,
Circuit Judges.

 Posner, Chief Judge. Section 401(e) of the
Labor-Management Reporting and Disclosure Act of
1959, 29 U.S.C. sec. 481(e), makes all members in
good standing eligible to run for office in the
union’s triennial elections subject to
"reasonable qualifications uniformly imposed."
The constitution of the steelworkers
international union conditions eligibility for
local office on the member’s having attended at
least eight of the local’s monthly meetings (or
been excused from attendance at them, in which
event he must have attended one-third of the
meetings from which he was not excused) within
the two years preceding the election. Noting that
the rule disqualifies 92 percent of the almost
3,000 members of Local 1011 of the steelworkers
union, the district judge, at the behest of the
Secretary of Labor, upon cross-motions for
summary judgment declared the rule void.

 The Act’s aim was to make the governance of
labor unions democratic. Local 3489, United
Steelworkers of America v. Usery, 429 U.S. 305,
309 (1977); Wirtz v. Hotel, Motel & Club
Employees Union, Local 6, 391 U.S. 492, 496-98
(1968); Wirtz v. Local Union No. 125, Laborers’
Int’l Union, 389 U.S. 477, 483 (1968); Donovan v.
Local Union No. 120, Laborers’ Int’l Union, 683
F.2d 1095, 1102 (7th Cir. 1982). The democratic
presumption is that any adult member of the
polity, which in this case is a union local, is
eligible to run for office. U.S. Term Limits,
Inc. v. Thornton, 514 U.S. 779, 793-95, 819-20
(1995); Powell v. McCormack, 395 U.S. 486, 547
(1969). The requirement in the U.S. Constitution
that the President be at least 35 years old and
Senators at least 30 is unusual and reflects the
felt importance of mature judgment to the
effective discharge of the duties of these
important offices; nor, as the cases we have just
cited hold, may Congress or the states supplement
these requirements. It would be absurd to think
that Senators, for example, should be required as
a qualification of holding office to have
attended a specified number of Senate sessions so
that they would better understand how the Senate
operates and the nature of the issues it deals
with.

 As an original matter we would think it, not
absurd, but still highly questionable, to impose
a meeting-attendance requirement on aspirants for
union office, at least in the absence of any
information, which has not been vouchsafed us,
regarding the character of these meetings. All we
know is that they are monthly and that the
union’s constitution requires that all
expenditure and other decisions of the union’s
hierarchy be approved at these meetings; yet
despite the formal power that the attendants
exercise, only a tiny percentage of the union’s
membership bothers to attend--on average no more
than 3 percent (fewer than 90 persons). We are
not told whether an agenda or any other material
is distributed to the membership in advance of
the meeting to enable members to decide whether
to attend and to enable them to participate
intelligently if they do attend. We do not know
how long the meetings last or what information is
disseminated at them orally or in writing to
enable the attenders to cast meaningful, informed
votes. For all we know the only attenders are a
tiny coterie of insiders not eager to share their
knowledge with the rest of the union’s members.
Cf. Leonard R. Sayles & George Strauss, The Local
Union 99-101 (rev ed. 1967); George Strauss,
"Union Democracy," in The State of the Unions
201, 209-10 (George Strauss, Daniel G. Gallagher
& Jack Fiorito eds. 1991). "Unduly restrictive
candidacy qualifications can result in the abuses
of entrenched leadership that the LMRDA was
expressly enacted to curb." Wirtz v. Hotel, Motel
& Club Employees Union, Local 6, supra, 391 U.S.
at 499. Cf. Donovan v. CSEA Local Union 1000,
American Federation of State, County & Municipal
Employees, 761 F.2d 870, 875 (2d Cir. 1985),
remarking the "tight grasp of incumbent leaders."
 All we know for sure about this case, so far as
bears on the reasonableness of the meeting-
attendance requirement, is that the requirement
disqualifies the vast majority of the union’s
members, that it requires members who have not
been attending meetings in the past to decide at
least eight months before an election that they
may want to run for union office (for remember
that the meetings are monthly and that a
candidate must have attended at least eight
within the past two years unless he falls within
one of the excuse categories), and that the union
itself does not take the requirement very
seriously, for it allows members who have
attended no meetings to run for office, provided
that they fall into one of the excuse categories.
The categories are reasonable in themselves--
service with the armed forces, illness, being at
work during the scheduled time of the meeting,
and so forth-- and they expand the pool of
eligibles from 95 union members to 242, of whom
53 attended not a single meeting. But if the
meeting-attendance requirement were regarded as a
vital condition of effective officership,
equivalent in importance to the LMRDA’s
requirement that the candidate be a union member
in good standing, the fact that a member was
without fault in failing to satisfy it would not
excuse the failure. Doyle v. Brock, 821 F.2d 778,
786 (D.C. Cir. 1987); Marshall v. Local 1402,
Int’l Longshoremen’s Ass’n, 617 F.2d 96, 98 (5th
Cir. 1980). To excuse compliance would be like
permitting a blind person to fly an airplane
provided that he had become blind through no
fault of his own, or a nonunion member to run for
office if he would be a member if only he were a
steelworker rather than a stockbroker. So many of
the union’s members are excused from the meeting-
attendance requirement that there could be an
election for officers of Local 1011 at which none
of the candidates satisfied the requirement.

 The requirement is paternalistic. Union members
should be capable of deciding for themselves
whether a candidate for union office who had not
attended eight, or five, or for that matter any
meetings within the past two years should by
virtue of his poor attendance forfeit the
electorate’s consideration. Local 3489, United
Steelworkers of America v. Usery, supra, 429 U.S.
at 312; Wirtz v. Hotel, Motel & Club Employees
Union, Local 6, supra, 391 U.S. at 504; Donovan
v. Local Union No. 120, Laborers’ Int’l Union,
supra, 683 F.2d at 1105; Donovan v. CSEA Local
Union 1000, American Federation of State, County
& Municipal Employees, supra, 761 F.2d at 875.
The union’s rule is antidemocratic in deeming the
electors incompetent to decide an issue that is
in no wise technical or esoteric--what weight to
give to a candidate’s failure to have attended a
given number of union meetings in the recent
past. Wendell Willkie, when he ran for President
in 1940, and Dwight Eisenhower, when he ran for
President in 1952, had never held political
office; would anyone have doubted that the
electorate was capable of deciding whether this
circumstance should disqualify either of them
from being President? And since most union
members interested in seeking an office in the
union are likely to attend meetings just to
become known, Seymour Martin Lipset, Martin A.
Trow & James S. Coleman, Union Democracy: The
Internal Politics of the International
Typographical Union 222-24 (1956), the rule is
superfluous.

 The briefs debate the precise significance to be
attached to the percentage of union members
disqualified from running for office by a
challenged eligibility requirement, and to a
regulation of the Department of Labor that
suggests in a footnote that any requirement which
disqualifies 90 percent or more of the members
might be (not that it would be) invalid per se.
29 C.F.R. sec. 452.38(a) n. 25. We agree with the
union that the footnote is entitled to little
weight. It is vague; it is inconsistent with the
body of the regulation, which makes no factor
controlling; and the only reason the Department
gave for it (see "Eligibility Requirements for
Candidacy for Union Office," 60 Fed. Reg. 26388,
26390 (May 17, 1995)) is the perceived futility
of bucking a decision by the District of Columbia
Circuit that appeared to have adopted the per se
approach, Doyle v. Brock, supra. And it is wrong.
As Judge Boudin noted in Herman v. Springfield
Massachusetts Area, Local 497, 201 F.3d 1, 4 (1st
Cir. 2000), the percentage of union members
disqualified from running for office by an
attendance requirement is a function not only of
the reasonableness of the requirement but also of
the members’ inclinations. Under conditions of
pervasive apathy, a requirement of attending even
a single meeting might disqualify the vast bulk
of the membership. That is true here. Only 14
percent of the members attended even one meeting
within the last two years. Yet the Department of
Labor does not argue that therefore even a one-
meeting requirement would be unreasonable.

 We think the proper approach, and one that is
consistent with the case law, see Local 3489,
United Steelworkers of America v. Usery, supra,
429 U.S. at 310-13; Wirtz v. Hotel, Motel & Club
Employees Union, Local 6, supra, 391 U.S. at 499;
Donovan v. Local Union No. 120, Laborers’ Int’l
Union, supra, 683 F.2d at 1103; Usery v. Local
Division 1205, Amalgamated Transit Union, 545
F.2d 1300, 1303-04 (1st Cir. 1976)--even Doyle v.
Brock, supra, the most "per se" of the opinions,
concedes that "a requirement that has a large
antidemocratic effect" might be justified by
"show[ing] that the requirement serves valid
union interests," 821 F.2d at 785--is to deem a
condition of eligibility that disqualifies the
vast bulk of the union’s membership from standing
for union office presumptively unreasonable. The
union must then present convincing reasons, not
merely conjectures, why the condition is either
not burdensome or though burdensome is supported
by compelling need. This approach distinguishes,
as Judge Boudin did, between impact and burden.
Herman v. Springfield Massachusetts Area, Local
497, supra, 201 F.3d at 3; see also Reich v.
Local 30, Int’l Brotherhood of Teamsters, 6 F.3d
978, 988 (3d Cir. 1993); Usery v. Local Division
1205, Amalgamated Transit Union, supra, 545 F.2d
at 1303. A requirement that to be eligible to be
a candidate a member of the union have attended
one meeting of the union in his lifetime would
not be burdensome even though it might disqualify
a large fraction of the union membership simply
because very few members took any interest in the
governance of the union. That defense is
unavailable here, however. Requiring attendance
at eight meetings in two years imposes a burden
because it compels the prospective candidate not
only to sacrifice what may be scarce free time to
sit through eight meetings, but also, if he is
disinclined to attend meetings for any reason
other than to be able to run for union office, to
make up his mind whether to run many months
before the election.

 The burden is great enough in this case to place
the onus of justification on the union. The only
justification offered is that the requirement of
attending eight meetings in two years encourages
union members who might want to run for office,
perhaps especially opponents of the incumbents,
to attend union meetings (since otherwise they
may not be eligible to run), thus bolstering
attendance at the meetings and fostering
participatory democracy. The slight turnout at
the meetings suggests that this goal, though
worthy, cannot be achieved by the means adopted;
the means are not adapted to the end, suggesting
that the real end may be different. So far as
appears, the union has given no consideration to
alternative inducements to attend meetings that
would not involve disqualifying from office more
than nine-tenths of its members. No argument is
made that a three-meeting requirement (upheld in
Herman v. Springfield Massachusetts Area, Local
497, supra) would fail to satisfy the union’s
reasonable desire that its officers be both
experienced and committed to the union. It is
true that even a three-meeting requirement would
have disqualified more than 90 percent of Local
1011’s members. But there is still a big
difference. Under the rule challenged in this
case, a union member who wanted to be sure of
qualifying for eligibility to run for office
might have to start attending meetings as much as
a year in advance of the election, because he
might miss one or more meetings for reasons that
the union does not recognize as excusing (such as
vacation or family leave) and because the union
might cancel one or more meetings. And yet a year
before the election an issue that might move a
union member to incur the time and expense of
running for office might not even be on the
horizon. Local 3489, United Steelworkers of
America v. Usery, supra, 429 U.S. at 310-11.
(This reasoning led the Supreme Court in Anderson
v. Celebrezze, 460 U.S. 780, 790-92 (1983), to
hold unconstitutional an early-filing deadline
for persons wishing to run as independents in
elections for public office.) Suppose for example
that six months before the election the union’s
president were unexpectedly indicted for having
stolen union funds with the connivance of the
other officers. That is an event that might
galvanize opposition to incumbents. But not
having been foreseen it could not play a
galvanizing role, or as much of a galvanizing
role, were it too late for any but a handful of
union members to qualify to run against the
incumbents.

 The district court was right to invalidate the
meeting-attendance requirement as unreasonable,
and the judgment is therefore

Affirmed.
