Late Friday afternoon a liberal Dane County judge struck down key parts of Wisconsin's collective bargaining reforms. The measure dealing with public sector unions has been at the heart of a protected political battle that started with large street demonstrations at the state capitol when the measure was introduced, and culminated early this summer with the overwhelming re-election of Governor Scott Walker in an historic - but failed - recall attempt. Democrats and labor unions, furious that conservative lawmakers and the governor would propose that public employees contribute more to their taxpayer funded pension and healthcare plans, have resorted to the courts to defeat the law.
According to Tom Kamenick, an attorney with the Wisconsin Institute for Law and Liberty, Judge Juan B. Colas' decision concluded that the following portions of the law violated union members' First Amendment and equal protection rights:
- Limiting the scope of collective bargaining for general employees to base wages;
- Requiring a referendum to increase wages for general employees above the cost of living;
- Prohibiting general employee unions from imposing "fair share" dues on non-members;
- Imposing annual recertification elections on bargaining representatives for general employees;
- Prohibiting payroll deductions for unions for general employees;
Democrats and liberals reacted with glee to the decision. Assembly Minority Leader Peter Barca (D-Kenosha) declared, "This is a huge victory for Wisconsin workers and a huge victory for free speech." Barca also referred to collective bargaining and public sector union membership as "constitutional rights."
The Wisconsin Constitution does not contain any mention of a right to collective bargaining. Judge Colas admitted in the decision that he was relying on an interpretation of the Constitution and not any specific provision itself to justify his actions to offer constitutional protection to collective bargaining.
Immediately apparent from the decision was that a lone county level judge could issue an opinion that effectively (if temporarily) reverses a law passed by the legislature, signed by the governor, found constitutional by the state's judiciary, and affirmed in electoral victory after electoral victory, even culminating in the most votes ever received by a Wisconsin gubernatorial candidate. At the heart of the matter is the question of whether or not taxpayers can control their own government and its priorities or whether they will become the pawns of labor unions seeking to strengthen their own control on government and enrich the pockets of their own leaders.
The taxpayer-as-servant-to-unions concept was actually advanced as a legal theory by the labor union plaintiffs in the case. In his decision Judge Colas summarily reviewed the union's argument that the reform took away the property of labor unions in Milwaukee. That property would have been the contract backed up by taxpayer's wallets. Although dismissing the argument, Colas did in substance side completely with the unions.
In reasoning that the collective bargaining reforms violated the freedom of association rights of public sector union members, the judge concluded that because an individual could join a union but not achieve the outcome he or she wanted whatever limited those outcomes was unconstitutional. Put another way, because the reforms mean that unions can't always get what they want (a stunning development for them) then those who join a union are suddenly having their constitutional rights trampled upon.
Liberals and advocates of bigger government have long confused constitutional protections for equal freedom to exercise a right with the equal success of one's exercise of that right. It is the infatuation with insuring equal outcomes (as opposed to equal opportunity) that has led to policies such as big spending stimulus packages and massive government buyouts of once-private enterprises.
Judge Colas' argument that union members suffered a constitutional harm when they did not get the outcomes they wanted is akin to arguing that government must also buy printing presses and subsidize newspaper sales to prop up the First Amendment's free speech clause.
Even though accepted by a lower court, the arguments advanced by the union plaintiffs may not stand on review because the state's highest court has already considered the law constitutional. Until the court hears - if they eventually do - these specific arguments, however, the state of the law's enforcement will be in flux.
The political outcome of the decision may not be what unions and Democrats want, all immediate cheering aside. Nearly every time a candidate has been on the ballot and the issue has been the hot-button reforms, Republicans have won. Turnout during the recall election exceeded that of normal gubernatorial campaigns and the GOP victory defied the theory that high turnout elections in Wisconsin must mean defeat for Republicans. With polls showing Wisconsin increasingly in play and targeted by both the Romney and Obama campaigns, a move that fires up the GOP base to a tempo similar to that of the June recall will no doubt hurt the Obama-Biden ticket's chances of carrying the state.
Democratic U.S. Senate candidate Congresswoman Tammy Baldwin hails from Madison but has been trying to overcome the negative perception many out-state Wisconsinites have of Madison's liberal politicians. Baldwin's chances largely ride alongside those of President Obama's in the state, and similarly the decision could hurt her image if voters see this as a progressive Madison judge interfering with a matter already decided by months of hard political fighting.