Don't Drink the Tea. Think With the WE.
Sep
2012
18

The Implications of Wisconsin’s Act 10 Being Ruled Unconstitutional

Last week, Wisconsin Judge Juan Colas struck down sections of Governor Scott Walker’s signature legislation, known as Act 10, which restricts the power of workers and unions in the state. Passage of Act 10 lead to the Wisconsin uprising of 2011.

The decision reopens the topic for debate just weeks before the election and will serve to further deepen the divide that has been driven into Wisconsin’s polity. Since Gov. Walker’s victory in the Recall Election, many have viewed the issue as dead, but with Colas’ decision it rises like a phoenix, complete with new predictions and correlations.

Colas deemed the law unconstitutional because it creates two separate classes of employees. The Washington Post looks at how the court’s decision will effect the November election:

Labor’s enthusiasm could be rejuvenated: Walker’s victory in the June recall election was a big blow to organized labor, which invested significant resources trying to defeat him. Friday’s ruling is a much-needed bit of good news for public unions — even if it is only temporary.

Wisconsin’s polarization isn’t going away: The 2011 anti-Walker protests in Madison were followed by a contentious state Supreme Court election, and then two rounds of recalls that brought millions of dollars of outside money into the state. The result was a sharply polarized electorate in which undecided voters have become very rare and most people have formed hardened opinions on one side or the other.

The debate over collective bargaining isn’t over: When Walker won his recall, many observers thought that would be the last (major) word in the Wisconsin debate over Walker’s controversial law. Republicans won the reaffirmation of their policies they had sought, while Democrats were forced to deal with the defeat at the highest level.

Friday’s decision could re-open the debate. Democrats in Wisconsin who for two years have sought to use Walker as a political bogeyman lost some momentum when he won the recall. They may find new strength in their arguments, if Act 10′s legal standing isn’t sound.

Judge Colas’ decision has been written off by Gov. Walker as the ramblings of a “liberal activist judge,” but if upheld it could stop other states from taking similarly extremist action against unions. At the heart of the case, according to Colas, is the differential treatment of union and non-union employees and the imposition of an improper burden on the free speech and right to association of union members:

Namely, Act 10 prohibits local governments from offering unions a base wage increase above the cost of living, or negotiating about other terms of employment — limitations that do not apply to employees who are not represented by a union. Likewise, it prohibits automatic payroll deductions for union dues, but only because the dues go to a labor union.

Employees may retain the right to organize into unions, but “only if they give up their right to negotiate and receive wage increases greater than the cost of living,” Judge Colas wrote. Those who don’t join unions “are rewarded by being permitted to negotiate for and receive wage increases without limitation.”

The law singles out unions “solely because of the purposes for which the organizations are formed and the employees choose to associate.”

Colas’ judgement also invokes the 14th Amendment, suggesting that Act 10 violates its equal protection clause. Interestingly, as pointed out by Reuters, the equal protection argument is the same one being used to defend gay marriage. Last month, when the First Circuit of the U.S. Court of appeals found the 1996 Defense of Marriage Act to be unconstitutional, it cited the 14th amendment’s equal protection clause:

If you allow same-sex couples to marry – as eight states and the District of Columbia now do – you can’t economically discriminate against them (by denying the ability to file joint tax returns or withholding Social Security benefits) simply because they are not heterosexual.

While very different scenarios, the basic argument holds true with Wisconsin’s Act 10: by having differing legalities for different groups, Act 10 does not allow for equal protection under the law.

From a legal perspective, the Wisconsin law has something of an Achilles’ heel. It created an unprecedented distinction between “public safety” employees (basically police and firefighters) and “general” state employees (everybody else), and did not restrict the organizing or collective-bargaining abilities of unions in the former group. The stated rationale for this disparate treatment was that restricting the bargaining rights of police and firefighters might make it more likely for them to strike, which would threaten public safety….

…creating two classes of labor unions is a legal minefield, just as two classes of marriage is.

It will be interesting to see how the awakened Act 10 debate effects both the Presidential race — the state is an important battleground — and the Senate race between Democrat Tammy Baldwin and Republican Tommy Thompson.

Recent polling by Public Policy Polling shows that the President has a slight lead over Mitt Romney, 49% to 48%. In the Senate race, Tammy Baldwin leads former Wisconsin Governor Tommy Thompson by three percentage points.

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