On Friday afternoon, Facebook exploded with news that a Dane County judge had once again overturned key parts of Act 10, the “Budget Repair Bill” that took away key bargaining rights for members of state and local Wisconsin unions.
I was skeptical. After all, the same thing happened in March, the case went to the Supreme Court and the ruling was struck down. Besides, overturning a bargaining law based on the freedoms of speech and assembly seemed rather farfetched. (Here’s a link to the ruling itself.)
Also, striking down a law that’s already been used in bargaining for over a year seemed like it would have some far reaching consequences. And it does, though what those are remains to be seen.
Let me clear a couple things up right off the bat. The ruling doesn’t apply to state employees because no state unions took part in the lawsuit. The plaintiffs were Madison Teachers, Inc. a Madison teachers union and Public Employees Local 61, a union representing employees of the City of Milwaukee. If a state union had also been a plaintiff, it would apply to the state as well. Along with that, technically this ruling only applies to those two specific unions and won’t apply to the whole state unless the appeals court also agrees with Judge Juan Colas. However, both the plaintiffs and the Attorney General’s office are considering this ruling as applying to the whole state. So for now, it does.
Second, this will definitely be appealed, and because of that, the Attorney General’s office has a right to ask for an injunction on the ruling until the appeals process is over. Van Hollen announced on Saturday that he would be seeking one. If that injunction is granted, nothing changes until this again reaches the Supreme Court. Because believe me, it will.
Now, for some context.
Act 10/the “Budget Repair Bill/whatever else you want to call it did a few things. (You can try to muddle through the bill itself here, but I don’t recommend it.) One, it created two different types, or “classes” of unions. There are “public safety” unions, which include some police, some firefighters and some other unions, most of whom supported Walker in his 2010 election bid. (Of course, that had nothing to do with who was chosen to count as a public safety union. Nothing at all.) Then there’s every other union, now called “general” unions. General unions are no longer allowed to deduct dues from the paychecks of their members, make non-members of their profession pay “fair share dues,” doesn’t allow them to bargain for wages above cost of living increases and makes general unions have to recertify every year. Public safety unions don’t have to abide by those rules.
There are some other changes, but that’s basically what all the fuss has been about. And rightfully so. Unions use dues to fund pretty much everything they do. Without being allowed to take wages from paychecks, even if the members ask for it, they’re getting less money. By making it so you can’t get higher than cost of living increases if you’re part of a union, it makes more sense to NOT be part of one. Making non-members not have to pay “fair share” dues means that when a union bargains for all the members of a profession, all non-members benefit from the union’s work without having to pay the union for it’s help. It’s a lose-lose-lose-lose situation for the unions that really doesn’t have anything to do with balancing the budget.
So there are a few different main challenges presented by the plaintiffs in this case.
- The Act was passed in violation of special session rules.
- The Act violates the right to free speech and association.
- The law violates what’s called the “Home Rule Law.”
One is pretty straightforward, all in all. The Governor can call a special session of the Legislature and can say what the Legislature is going to talk about when they get there. In Executive Order #14, Walker said one of the purposes of the session was to discuss the Budget Repair Bill and then began circulating that through the Legislature.
The plaintiffs tried to say that the session was to talk about budget repair, not the bill itself. A flimsy argument all in all. As Judge Colas said: “The question in evaluating the governor’s call is whether it served the purpose of notice to the public and the legislature of the nature of the business to be conducted at the special session. Those purposes were served in this case by the specific reference to the Budget Repair Bill and the concurrent submission of the legislation and a summary of it to the legislative leadership.”
Now we get to the interesting stuff: the second challenge based on free speech and assembly.
Remember how I said the bill created two different classes of unions and restricted what members of unions can bargain for versus nonunion members?
Well, there’s this little thing called the First Amendment and in it it says that Congress shall make no law prohibiting freedom of association. Now, Walker argues that while the statutes “burden the economic effectiveness of plaintiff’s associational activities,” the Act doesn’t take away the right to associate in the first place.
However, that doesn’t fly based on precedent in other cases. In Lawson v. The Housing Authority of the City of Milwaukee the court ruled that holding out privileges – such as being able to bargain for pay above the cost of living – as a condition of non-membership in an organization is a more subtle encroachment of liberties, but “may be equally violative of the constitution.”
Colas holds that Act 10 does the same thing here: “(These statutes) single out and encumber the rights of those employees who choose union membership solely because of that association and therefore infringe upon the rights of free speech and association guaranteed by both the Wisconsin and United States Constitutions.”
He says it also violates Equal Protection, which is essentially the obligation of the state to treat people equally unless it can prove it has a really good reason not to. To prove that the government is violating Equal Protection, you have to show that the law “treats members of a similarly situated class differently.” However, if the state can show a rational basis for doing this, then the court will support it. (Rational basis is generally up to the court.)
And the statute does do just that. There are now two classes of employees, municipal employees represented by unions and municipal employees NOT represented by unions.
Now, the state argues that they didn’t actually create the classes. Instead, people decide what class they belong to when they decide whether or not to join a union.
Side note: That makes ABSOLUTELY NO SENSE! AT ALL. It makes so little sense I can’t even think of a simile for it.
Anyway, Judge Colas disagreed and said that the state is treating people in similarly situated classes differently, both in terms of rights and in terms of payroll deductions. I won’t get into payroll deductions, but needless to say there are now three classes: general unions, public safety and transit unions, and then there is everyone else. Each group is similar but treated differently. ‘Nuff said.
The third challenge is to Wisconsin’s “Home Rule” Law. Essentially, this is like the separation of powers between federal and state, but at a more local level. Municipalities can decide what to do with their workers unless a law is passed that affects the entire state. Milwaukee had passed an ordinance that said that the City would pay the employees’ share of their pensions. That is now illegal under Act 10. Judge Colas ruled that the law interferes with Milwaukee’s power to govern it’s “local affairs.”
Now, I have to admit things like the Home Rule are not my forte. I can talk about the First Amendment all day long, but that’s kinda my thing.
So if you want a better explanation of the Home Rule, you won’t find it from me.
Phew. It’s been a long time since I’ve done a legal analysis. Let me know if I missed anything, and in the meantime, you have all the details to be that one smart-ass in the conversation who actually knows what’s going on. Enjoy!