Wisconsin Judge Strikes Down Collective Bargaining Law

The battle over Wisconsin's public sector union reform continues.

It sometimes seems as if the battle in Wisconsin over the reforms to public employee collective bargaining passed under the watch of Governor Scott Walker and a Republican legislature will never end. The attempts to pass the law led to a protest that lasted for weeks at the Wisconsin State Capitol and recall elections, including a massively failed effort to recall Walker and his Lt. Governor earlier this year. On the legal side, the law faced an early challenge in the Wisconsin Courts for alleged violations of the state’s “open meetings” law and was in fact struck down on that ground by a Dane County Circuit Court Judge last year. To make things more interesting, the law became an issue in the re-election bid of Wisconsin Supreme Court Justice David Prosser while the case was still pending in Circuit Court. Prosser ended up winning the election narrowly, thus preserving the Republican majority on the Court. Several months later, the Wisconsin Supreme Court reversed the Circuit Court decision and upheld the law on the “open meetings” challenge.

After the Supreme Court decision and the failure of the recall effort, it might have seemed as though the fight over the collective bargaining law was over, at least until the next round of state legislative elections. As it turns out, though, things were just on hiatus, and they’ve now been revived because a Dane County Circuit Court Judge has struck down key provisions of the law as unconstitutional:

Gov. Scott Walker’s law repealing most collective bargaining for local and school employees was struck down by a Dane County judge Friday, yet another dramatic twist in a year and a half saga that likely sets up another showdown in the Supreme Court.

The law remains largely in force for state workers, but for city, county and school workers the decision by Dane County Judge Juan Colas returns the law to its status before Walker signed the legislation in March 2011.

Colas ruled that the law violated workers’ constitutional rights to free speech, free association and equal representation under the law by capping union workers’ raises but not those of their nonunion counterparts. The judge also ruled that the law violated the “home rule” clause of the state constitution by setting the contribution for City of Milwaukee employees to the city pension system rather than leaving it to the city and workers.

(…)

The ruling also appeared to strike down for local workers a requirement that they pay half of the contribution to their pensions and, for workers within the state of Wisconsin health insurance system, pay at least 12% of their premiums. Those cost savings have been crucial for local governments and schools in dealing with the more than $1 billion in cuts in state aid over two years that Walker and GOP lawmakers passed last year to close a state budget hole.

In his decision, Colas noted that the law limited union workers to cost-of-living salary increases through bargaining while other employees were free to seek larger raises. Colas said the state lacked a reasonable basis for making that distinction.

Colas also noted that the law grouped workers into different classes, since local police and firefighters kept all their bargaining rights under the law but other workers did not. In making these distinctions, the law ultimately infringed on workers’ rights to associate with one another freely and to be treated the same way under the law, the judge found.

The home rule section of the constitution states that the state can only pass laws that uniformly affect cities and villages. Colas found that the law violated that part of the constitution by prohibiting the City of Milwaukee from paying the employees’ share of their pension contributions.

Colas ruled against the plaintiffs on two of their claims, saying that Act 10 did not violate the constitution provisions on special legislative sessions and did not violate a prohibition against taking property without due process.

No doubt, opponents of the Wisconsin law will be heartened by this decision. However, Ben Jacobs correctly points out that they should temper their joy and consider the consequences of this decision: 

While some liberals may celebrate this as a victory in that state’s manichean struggle between supporters and opponents of the right of public sector workers to unionize, it may prove counterproductive in the long term. The case will eventually be appealed to the state’s Republican leaning Supreme Court, which is likely to return to the status quo. In the meantime, it is likely to only stir up outrage in the Badger State.

Regardless of what one thinks about Wisconsin’s collective bargaining law, voters have already repeatedly weighed on it. The state has seen recall elections for Governor, for about a third of the seats in its state senate as well as a passionately contested race for the State Supreme Court. These have all been portrayed as referendums on Act 10 and the results have given a narrow, but decisive advantage to Walker and his allies.

Voters worn out by nearly two years of back and forth on collective bargaining are not likely to view the judge’s decision kindly. It represents a court usurping the settled will of Wisconsin voters. This is likely to produce a backlash in November.

Paul Ryan’s presence on the Republican ticket has already helped the GOP in Wisconsin. Combined with this decision, it could be enough for Romney to pull off an upset in the normally Democratic leaning state on Election Day.

Jacobs is correct on one point, with the exception of a handful of State Senate seats (the terms of which end at the end of this year anyway), the great battle of Wisconsin was for most part a complete victory for Governor Walker and the collective bargaining law. Presented with their clearest opportunity  to repudiate the law earlier this year, the people of Wisconsin voted in favor of Walker, and presumably the law, in a recall election that had 360,000 more people turn out to vote than the 2010 Gubernatorial Election did. In the months running up to the recall this year, there were already signs that voters were burned out by the constant political bickering that had enveloped their state ever since the Capitol Building protests had started. As Jacobs says, if the voters really bought the public sector union’s argument here, they would’ve said so at the polls. They didn’t, and that’s going to be an issue that Republicans  are going to exploit in this years mid-term state legislative elections. Will it make the state more likely to go for Romney? I don’t know about that. Right now, the state is at +1.4 in Obama’s favor in the President’s favor over at RealClearPolitics, and all the polls that have been taken there since Ryan was named to the Republican ticket have had the race with in a four point range, most of them much less than that. If this decision leads to higher turnout among the people who voted for Walker earlier this year, then that could put the state in the Romney/Ryan column.

Legally, the decision here seems to be incredibly vulnerable on appeal. The law has long recognized that states have the right to dictate the terms of public employee bargaining rights in a manner that private employers have never had. Indeed, Franklin Roosevelt himself was opposed to the very idea of public employee unions:

Roosevelt’s reign certainly was the bright dawn of modern unionism. The legal and administrative paths that led to 35% of the nation’s workforce eventually unionizing by a mid-1950s peak were laid by Roosevelt.

But only for the private sector. Roosevelt openly opposed bargaining rights for government unions.

“The process of collective bargaining, as usually understood, cannot be transplanted into the public service,” Roosevelt wrote in 1937 to the National Federation of Federal Employees. Yes, public workers may demand fair treatment, wrote Roosevelt. But, he wrote, “I want to emphasize my conviction that militant tactics have no place” in the public sector. “A strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government.”

And if you’re the kind of guy who capitalizes “government,” woe betide such obstructionists.

And, for many years, Courts distinguished between public sector unions and private sector unions when it came to collective bargaining:

 Courts across the nation also generally held that collective bargaining by government workers should be forbidden on the legal grounds of sovereign immunity and unconstitutional delegation of government powers. In 1943, a New York Supreme Court judge held:

To tolerate or recognize any combination of civil service employees of the government as a labor organization or union is not only incompatible with the spirit of democracy, but inconsistent with every principle upon which our government is founded. Nothing is more dangerous to public welfare than to admit that hired servants of the State can dictate to the government the hours, the wages and conditions under which they will carry on essential services vital to the welfare, safety, and security of the citizen. To admit as true that government employees have power to halt or check the functions of government unless their demands are satisfied, is to transfer to them all legislative, executive and judicial power. Nothing would be more ridiculous.

The very nature of many public services — such as policing the streets and putting out fires — gives government a monopoly or near monopoly; striking public employees could therefore hold the public hostage. As long-time New York Times labor reporter A. H. Raskin wrote in 1968: “The community cannot tolerate the notion that it is defenseless at the hands of organized workers to whom it has entrusted responsibility for essential services.”

It wasn’t until public sector unions became a political force inside the Democratic Party that things started to change and, of course, once they did, the unions were able to use their political power to increase their bargaining power and vice versa. Arguing, as the Judge here essentially does, that this political power play somehow creates a Constitutional right strikes me as absurd. The state of Wisconsin could have decided never to authorize collective bargaining by public sector unions to begin with. The argument that, once they have done so, they don’t have the right to reform that process when it has clearly become injurious to the fiscal health of state and city governments alike is to find something in the Constitution as is simply not there.

Interestingly, the Judge here concedes that there is no such thing as a Constitutional right to collective bargaining, and the Illinois Policy Institute suggests this could be his undoing on appeal. Indeed, if there is no Constitutional right to “collective bargaining,” then it is absurd to argue that your constitutional rights have been violated when the state decides to reform the bargaining process. This isn’t a matter of Constitutional rights, it’s a matter of the state regaining control of its fiscal situation, and there’s nothing in the Constitution that forbids that.

The case is, of course, going to be appealed, although it’s unlikely that we will get a decision before Election Day. Instead, one more time, this issue will be fought out in Wisconsin’s electoral system. If they lose again, maybe the opponents of collective bargaining reform will finally get the message.

Here’s the opinion:

Madison Teachers Inc Et Al v. Walker

FILED UNDER: Campaign 2012, Labor Unions, Law and the Courts, US Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. Stan25 says:

    The left/unions will never give up on that fight. They will still fight it if even the SCOTUS rules that the law passed by the Wisconsin legislature is valid,

  2. Tim says:

    @Doug,

    If they lose again, maybe the opponents of collective bargaining reform will finally get the message.

    Oh, please! Really? The fact is that nobody these days, on EITHER side, EVER gets the message, despite how many times they get hit upside the head with it.

  3. Rick Almeida says:

    Good analysis, Doug. Thanks.

  4. mantis says:

    So Doug, your argument is that since reforming the collective bargaining process is constitutional, every possible way it could be done is constitutional?

    Also, you don’t really address the decision in any, you know, legal terms. Just political ones. Just because you are unfamiliar with the Wisconsin constitution doesn’t mean “the people have spoken” is an acceptable constitutional argument. As you know, the people have supported unconstitutional laws before.

  5. wr says:

    @Stan25: “The left/unions will never give up on that fight. They will still fight it if even the SCOTUS rules that the law passed by the Wisconsin legislature is valid, ”

    Unlike the Right, of course. We all know that once the Supreme Court weighs in on an issue, conservatives just accept that as the law of the land and move on. As with, say, abortion.

  6. al-Ameda says:

    What was interesting is that while Walker’s law repealed most collective bargaining rights for state, school and local employees, it allowed public safety workers – police and firefighters – to retain collective bargaining rights.

    This was all about busting unionized public employees who typically vote Democratic, while leaving alone unionized public employees who typically vote Republican.

  7. James Young says:

    You’re right. This decision won’t survive once the adults get ahold of it.

  8. James Young says:

    @al-Ameda: Whether that’s true or not, it is plainly within the power of a state to repeal monopoly bargaining for differing cohorts of government employees. California has a number of different laws for different kinds of government employees. The logic of this decision suggests that distinctions between them makes all of them unconstitutional, an uncommonly silly argument.

  9. OzarkHillbilly says:

    @Stan25:

    The left/unions will never give up on that fight. They will still fight it if even the SCOTUS rules that the law passed by the Wisconsin legislature is valid,

    Absolutely right Stan. We will never give up, we will fight for our rights up until the day we step into our graves, and if possible we will fight from there too.

    Is that a problem?

  10. Dave says:

    As a life long resident of Wisconsin, I find it insane how many people from outside of the State continue to tell us the recall was a referendum on Act 10. I dislike Walker quite a bit yet I voted for him in the recall because the recall was a large waste of money and had no merit under the Constitution of Wisconsin. I know many independents who feel the same. The people that keep loudly yelling about this being a referendum are outside parties and the rabid base on both sides. The state is very embattled and I wouldn’t be surprised if overall voter turnout is down for this election. I know more than a few people on both sides who have just given up.

  11. stonetools says:

    So conservative guy doesn’t like that the court struck down a law in favor of a conservative policy. What did I miss?

  12. al-Ameda says:

    @James Young:

    The logic of this decision suggests that distinctions between them makes all of them unconstitutional, an uncommonly silly argument.

    I do not recall making that argument, I merely observed that Walker’s preference was to bust the public employee unions that voted Democratic, and leave alone those that voted Republican.

  13. Rick Almeida says:

    @James Young:

    Whether that’s true or not, it is plainly within the power of a state to repeal monopoly bargaining for differing cohorts of government employees

    If this is indeed “plainly” true, please give a brief analysis of how such treatment doesn’t violate the equal protection guarantees of the 5th and 14th Amendments.

  14. An Interested Party says:

    Conservatives and libertarians constantly cite FDR when they talk about public employee unions, but one wonders if FDR would feel the same way today, considering the vast changes that have taken place in this country, especially where unions are concerned…this argument that conservatives and libertarians use sounds similar to the argument that MLK would be a Republican if he were alive today…

  15. Barry says:

    Doug: “While some liberals may celebrate this as a victory in that state’s manichean struggle between supporters and opponents of the right of public sector workers to unionize, it may prove counterproductive in the long term. The case will eventually be appealed to the state’s Republican leaning Supreme Court, which is likely to return to the status quo. In the meantime, it is likely to only stir up outrage in the Badger State.”

    Bull. This is just a right-winger concern-trolling liberals, warning them that winning will just p*ss off the right.