If nothing else, Wisconsin’s public-sector unions are as unrelenting in the courts as they are in the streets. But they’re still no closer to their goal of overturning a 2011 law limiting their collective bargaining abilities. On April 18, a three-judge panel of the U.S. Court of Appeals, Seventh Circuit, unanimously ruled that the law, Act 10, did not violate free speech, free association or equal protection rights of unions representing employees of the City of Madison and the rest of Dane County. The ruling, which upheld a district court decision in September, concluded the State of Wisconsin is not required to maintain policies that support private associations such as unions. This case is separate from one in January 2013 in which the Seventh Circuit Court, by 2-1, upheld the entirety of the law.
National Legal and Policy Center many times has chronicled this highly contentious tug of war in Wisconsin since it began in February 2011, weeks after Republican Governor Scott Walker took office. Facing a two-year, $3.6 billion budget deficit, Gov. Walker developed a fiscal austerity plan, the centerpiece of which was Act 10. The measure, among other things, would require state and local employees to contribute more toward health and retirement plans; prohibit government officials from negotiating with employee unions (save for public safety workers) on anything but wages and salaries; require a vote by more than half of all potentially affected workers to support the union in annual elections; and index pay increases to a measure of inflation unless otherwise approved by voter referendum. Public-sector union activists and their Democratic Party supporters responded with barely checked fury. During the week of February 14-18, 2011, union members and their supporters surrounded and took over the State Capitol Building in Madison. In a choreographed act of solidarity, all 14 Democratic state senators on February 17 drove away in unison to undisclosed out-of-state locations and stayed indefinitely. Lacking a quorum for passage of legislation, government in Wisconsin effectively was paralyzed. During that weekend, as many as 70,000 anti-Walker protestors jammed the streets of Madison.
The Capitol demonstrators left the building in early March. Soon after, the all-Republican Senate, by an overwhelming 18-1 margin, followed the next day by the State Assembly in a 53-42 vote, passed the union curbs as a freestanding bill. Democratic senators, realizing their AWOL approach had outlived its purpose, came home. In April, Republican lawmakers included the labor reforms as part of the larger Wisconsin Budget Repair Bill (i.e., Act 10). That, too, passed. Unions and their allies shifted their focus to the courtroom in hopes of invalidating the law on procedural grounds. A state judge sided with them, blocking the law from taking effect. As could be expected, the administration appealed. That June, a bitterly divided Wisconsin Supreme Court overturned the ruling and upheld the law by a 4-3 margin.
The unions, undeterred, switched to a recall strategy. They launched a petition campaign to target several pro-Walker legislators for removal from office in hopes of creating a Democratic majority in the Senate. The effort very nearly succeeded, but fell short. At that point, unions and their allies decided to go after the big prize, Governor Walker himself. Gathering the requisite signatures, they put an election on the ballot for June 5, 2012. But Walker prevailed against his opponent, Milwaukee Democratic Mayor Tom Barrett, as he had in November 2010, and by roughly the same margin. It was back to court. In September 2012, Wisconsin State Circuit Judge Juan Colas (Dane County) struck down the collective bargaining limits of Act 10 insofar as they applied to municipal, county and school district employees. State Attorney General J.B. Van Hollen filed an appeal; Judge Colas denied the motion.
Complicating the standoff even further was the fact of federal legal action. In the summer of 2011, a coalition of seven public-sector labor organizations filed suit in U.S. District Court in Madison to overturn the law. The plaintiffs would achieve a partial victory. In March 2012, U.S. District Judge William Conley, an Obama appointee, while upholding most of the law, invalidated two key features. The State of Wisconsin, he concluded, did not have the authority to: 1) prevent union officials from deducting dues from member paychecks; or 2) require annual union recertification votes. As neither side was satisfied with a partial victory, both appealed. The second time would prove to be a clear-cut victory for the Walker administration. In a 2-to-1 majority, the Chicago circuit court upheld the law in its entirety. Even the dissent was only partial. The 74-page decision read: “Act 10 places no limitations on the speech of general employee unions, which may continue on any topic or subject.” The lead union plaintiff, the Wisconsin Education Association Council, denounced the decision, calling Act 10 “a ploy to eliminate workers’ rights to have a voice through their union – political payback for citizens who didn’t endorse the governor.”
Organized labor wasn’t about to accept this setback, certainly not with yet another federal case going on. Two unions, representing employees of the City of Madison and Dane County, also in 2011, had sued to overturn the law on grounds that its collective bargaining restrictions violated their civil liberties. But last September, Judge Conley ruled that the restrictions were constitutional. The unions quickly appealed. That brings us to the latest ruling of April 18. A three-judge panel of the Seventh Circuit Court of Appeals unanimously affirmed Judge Conley’s decision. Judge Joel Flaum, a Reagan appointee, wrote that the law “does not proscribe any conduct by the unions themselves.” He added: “It (the law) does not prohibit the unions from forming. It does not forbid them from meeting. Nor does it prevent the unions from advocating on behalf of members in any way they see fit.” Attorney General Van Hollen praised the ruling as a “victory for the law and for Wisconsin taxpayers.”
As one might guess from this festival of litigation, however, it’s not a final victory. The unions still have the option to appeal to the U.S. Supreme Court. Union attorney Bruce Ehlke stated that he will review the new ruling and discuss it with his clients. An appeal hardly can be ruled out. In addition, two state cases have yet to be resolved. The Dane County case is still active and set for a Wisconsin Supreme Court ruling. The other case, a challenge filed by the Wisconsin Law Enforcement Association, is currently before a state appeals court. It remains on hold pending the result of the Dane County case.
Public-sector union collective bargaining has been a main reason, if not the main reason, for budgetary shortfalls in many states and localities. Governor Walker and his top aides took no pleasure in drafting and urging passage of Act. But at the same time, they didn’t want Wisconsin to join Illinois, California, New Jersey and other states in coping with union-driven wage/salary and especially benefit commitments that have reached almost unsustainable levels. A study released last September by the Glen Allen, Va.-based State Budget Solutions, for example, concluded that state public employee pension long-term liabilities exceed assets by more than $4 trillion. In Wisconsin, as in a number of other states, public officials are taking steps to ensure fiscal soundness, knowing they are accountable to taxpayers who make public-sector jobs possible. As the Wisconsin situation draws to what one hopes, finally, is a conclusion, the courts should grasp this larger imperative.