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COMMENTARY: Wisconsin Supreme Court slams door on challengers to union-reform law

By   /   June 30, 2011  /   6 Comments

By Scott St. Clair

While Gov. Scott Walker and Republicans in the Wisconsin Legislature pitched near shut-out political ball delivering up a package of government-sector labor reforms last winter, the state Supreme Court had to come in from the bullpen as the closer.
It threw high, hard heat to slam the door shut on Walker opponents who sought to tie his reforms up in what many considered politically motivated legal challenges that were made in the hopes that they could stall long enough to get Walker called on account of darkness or rain or whatever.
In an unusually sharp rebuke to the Dane County Circuit Court’s order preventing Walker’s budget repair bill from taking effect, the majority harshly criticized the circuit court judge for having “usurped the legislative power which the Wisconsin Constitution grants exclusively to the legislature.” That was only the beginning.
The bill eliminates union power to negotiate everything except salaries for most government employees, restricts a union’s ability to take dues from a worker’s paycheck, requires an annual vote of workers on whether they want to keep their union and more.
Like similar measures in many states, it was passed to address serious state budget problems, in Wisconsin’s case an immediate budget shortfall of $137 million with $225 million in additional red ink from previous legislative raids on a designated state fund.
The court decision is but the latest in the nation’s biggest and most watched labor-relations soap opera. Since the beginning of the year, high political drama, massive protests, near riots and demonstrations of all kinds have made Wisconsin must-see TV. Unions and their allies have done an effective job of getting their message and their militancy noticed by the public.
But have they gone too far? Some say so, especially when union protesters converged on a recognition ceremony for Special Olympics athletes that featured brief and nonpartisan remarks by Gov. Walker. Dressed as zombies, the protesters worked hard, in the words of one reporter, to make the event all about them.
And what’s a protest without a tent city encampment? Union supporters pitched camp around Capitol Square promising to stay there until they’re listened to. It’s odd that they didn’t do this last winter when it would have been effective because now it’s seen as a nuisance.
The Supreme Court majority gave a civics lesson in separation of powers reminding the dissent and lower courts that it’s wrong for judges to substitute their version of what public policy should be for the Legislature’s. “Choices about what laws represent wise public policy for the State of Wisconsin are not within the constitutional purview of the courts.”
Judges shouldn’t butt into the legislative process when they think things aren’t going as they would like, the court said. As Justice David Prosser, who had just been re-elected to the court after a bruisingly ugly union campaign against him, wrote in concurrence, “Attacking the constitutionality of an act after it has been published is quite different from attacking its validity before it becomes law.”
In other words, you have to let the legislative process do its thing before a court can have its say.
The two dissents read like weepy episodes of Oprah. Complaining that the majority refused to be as slow as molasses in restraining a local judge who jumped at the chance to exceed her constitutional authority, they asserted a right to second-guess the Legislature. And they thought it untidy that the majority refused to defer to the trial court’s 48-page opinion and decision because it was, well, 48 pages long. After all, the judge worked so hard on it!
One dissent said that, while the majority had the authority to act, doing so was in bad taste — a sort-of judicial wearing of white socks with a tuxedo. Don’t interfere unless you have a compelling reason, and while this case presents us with one, we need to contemplate our judicial-navels until it’s too late.
In fact, the delay in implementing the bill caused by the court challenge has given many Wisconsin agencies and local governments time to put together sweetheart deals favoring unions, an abuse the bill was designed to prohibit.
This in the state that, in 1959, first gave government workers the right to join unions. Wisconsin was in the vanguard of government-sector unionization, and now it’s in the vanguard of realizing what a mistake that was.
To be clear: Private-sector unions and employers are not affected by any of this — this is strictly between state and local governments and the unions that represent state and local government employees.
In Wisconsin the fight now shifts back to the political arena where nine state senators —  six Republicans and three Democrats —  face recall elections next month. The effort against the Republicans is fueled by anger against the bill, while the Democrats are being targeted because they fled the state last winter to prevent a necessary quorum in the Senate to deal with the bill’s fiscal matters.
The acrimony is so bad that Democratic Rep. Fred Clark, who is challenging a Republican senator in one of the recall elections, was caught on a voicemail saying that he wanted to “smack around” a female constituent who wouldn’t support him.
The Badger State isn’t alone in union troubles. In New Jersey, Republican Gov. Chris Christie and Democratic leaders in the Legislature have reached agreement on a bill to suspend negotiations on pensions and health care benefits for four years in order to address a $120 billion unfunded pension and benefit problem.
Unions are so furious that they’re calling New Jersey “Nazi Germany,” Gov. Christie “Adolph” and the legislative leaders Nazi “generals.” Back-bench Democrats who depend upon union support are also angry, but a coalition of Republicans and reform-oriented Democrats should carry the day.
In Michigan, government-sector unions are targeting private businesses owned by Republican legislators in order to squeeze them where they live. That this could mean layoffs in the businesses doesn’t concern the unions. In the private sector, this would be an illegal secondary boycott and punishable under federal law.
A bill to allow retroactive double payment for some workers’ compensation claims is being rushed through the Rhode Island Legislature faster than you-know-what through a goose. Backed by labor and outside interests that stand to benefit financially from it, the bill is fiercely opposed by new Rhode Island State Treasurer Gina Raimondo.
The lawyer hired by Connecticut government-sector unions to negotiate with the state bragged about how he threatened Democratic Gov. Dan Malloy, who was elected with strong union support, with “a war with state employee unions (that) was a path to mutually assured destruction” and how that helped him cut a sweet deal. While it freezes wages for two years, it guarantees government-sector workers won’t be laid off, and it gives them hefty pay hikes in years three through five of the unusually long contract. Under the circumstances, it looks like Connecticut taxpayers will suffer assured destruction all by themselves.
Abuses aren’t restricted to unions. In Ohio, a program that allows some police and fire management officials to retire as millionaires is under scrutiny by policy organizations and the Legislature. Of course, that’s being attacked as an assault on public safety by those who stand to get rich from the program.
It’s hard to find a state where something similar isn’t happening. Unions are fighting tooth and nail against reforms because they know that a defeat in any state only adds fuel to the fire in other states. As Wisconsin goes, so goes the nation.
Imagine how it will be in Wisconsin now that dues won’t automatically be taken from a government worker’s check and sent to the union? Having to assume the role of bill collector to harass past-due dues payers ought to make unions real popular. They should be scared.
Scott St. Clair is a journalist and political writer who recently moved to New Jersey from Washington state where he was the investigative reporter for the Freedom Foundation, a non-partisan, non-profit public policy think tank.  He came to the Garden State to follow his heart and because, for what he does, the fields are ripe for the harvest. He can be reached at [email protected]


  • John H

    It’s about time. Public enterprise is functionally bankrupt, and the union bosses are morally bankrupt. The only remaining move to perfect the whole mess is a US government bankruptcy.

  • Meri

    Walker testified in front of the US Congress that his union busting did not have anything to do with the budget. Get your fact straight. Also peoples’ selection for jobs includes deciding whether or not they would choose a union or nonunion location. Having worked in nonunion schools I longed for a job in a public school because it paid a living wage and decent benefits. I don’t need politicians with special interests at heart to change the laws supposedly on my behalf, I can make those decisions myself.

  • GRJ

    Excellent commentary!

  • Metro

    @Meri I’m sure Gov. Walker used the terms “union-busting”, when he addressed congress. Can you post the link you are referring? I’m betting that your post is a gross exaggeration. Teachers are not under-paid anymore. Check their salaries and factor in the results (dropout rates lower than most industrialized nations!). Time for merit pay like everyone else.

  • JessB

    Your ridiculous reading of the minority dissent is laughable. “Weepy”? They criticized the majority for playing fast and loose with the fact, and any lawyer would agree that they did. This mostly a lost cause though, righty media drones do love their lies, and pointing them out only gets you attacked for being a “union thug” or a “lazy hippie.” Thanks, GOP, for turning citizenry so thoroughly against one another.


  • Lynda Holton

    Wisconsin leads! The definition of a Tri-Vecta? Walker, Johnson and Ryan.