Act 10, unions 0

On Friday afternoon came the news that the U.S. Seventh Circuit Court of Appeals reversed a federal judge and declared the Act 10 public-employee collective bargaining reforms were constitutional.

That probably ends any hope of a federal case against Act 10. It may be appealed to the U.S. Supreme Court, but it seems unlikely that the court would even agree to take it up. It is, after all, an issue of policy, and while there is a constitutional right to belonging to a union, there is no constitutional right to collective bargaining.

Among other things, the unions argued Gov. Scott Walker and GOP lawmakers created two classes of employees in exempting some public safety workers from the changes. They also argued Walker specifically exempted some public safety unions because they had backed him politically in the 2010 guv race.

But the appeals court rejected those arguments, writing the state was free to impose the collective bargaining limits on state employees and had a rational reason for exempting some public workers from the changes.

The court took note of the reaction to the introduction of the legislation, including the thousands that descended on the Capitol to protest and some public employees who called in sick to join in, as an example of why the state had a rational reason for exempting some public safety workers.

“Distinguishing between public safety unions and general employee unions may have been a poor choice, but it is not unconstitutional,” the court wrote.

The Wall Street Journal:

The unions argued that Mr. Walker’s limits on collective bargaining, the requirements that a union be recertified each year by a majority of its members and the elimination of the payroll deduction of dues were illegal because they exempted cops and firefighters. Supposedly this amounts to discrimination by creating two categories of public employees. They also argued that the payroll deduction clause violates the First Amendment.

Ponder that claim for a moment: Wisconsin’s failure to automatically subtract union duties from paychecks endangers free speech because it requires organized labor to persuade its own members that its activities are valuable enough to contribute to voluntarily. Normally such moonshot claims would get tossed out of court, but the unions found two credulous lower court judges who invalidated parts of the law.

The Equal Protection claims were first to go. The Seventh Circuit held that it was rational to fear a retaliatory strike from police and firemen that could endanger public safety, and thus the two-tier system protects a legitimate state interest.

As for the First Amendment, the court ruled that Wisconsin has no obligation to help unions fund political or other spending, in accord with a slew of Supreme Court and appeals court precedents. “The Bill of Rights enshrines negative liberties,” wrote Judge Joel Flaum in the 74-page decision. “It directs what government may not do to its citizens, rather than what it must do for them.”

Automatic payroll deductions aren’t a right but a subsidy for political speech—a special privilege created by the government, not the permanent monopoly entitlement that government unions imagine.

The same goes for public-employee unions, and Judge Flaum notes that to protect another legitimate state interest—affordable government and “a rational belief that public sector unions are too costly for the state”—one alternative to the Walker reforms “would appear to be the outright elimination of all general employee unions.” Hmmm. For now, Mr. Walker and Wisconsin taxpayers can savor one more vindication.

Wisconsin Democrats declared the reforms were divisive. As if anything Walker’s predecessor did — say, increasing state income taxes — wasn’t divisive. In case you haven’t noticed, politics is divisive, at any level. Anything that requires a yes–no vote is divisive. If the number one criterion of responsible politics was not being divisive, elective bodies would do nothing beyond approving the minutes and passing resolutions for Wisconsin ________ Day.


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