A liberal Dane County judge has struck down Act 10, the 2011 law that defanged most public employee unions in Wisconsin. The action will next move to the Supreme Court, whose liberal majority will no doubt uphold that ruling should the case reach them before August.
But is that a good thing? And what would Wisconsin voters do if, as should be the case, it was up to them?
Dane County Judge Jacob Frost ruled this week that Act 10 was unconstitutional because it didn’t provide equal protection under the law. The Republican authors exempted police and firefighter unions from their law without providing any sufficient rationale for doing that. And, in fact, they did not exempt others in the same category of workers, such as the Capitol Police and DNR wardens. It looks to me like Frost has made a strong argument.
But it’s also largely an abstract technicality, not that abstract technicalities aren’t exactly what circuit courts should be examining. I think Frost did his job.
My issue with all this is that — like it or not — Act 10 was a big public policy choice. It was ultimately decided — in ugly fashion — by the elected Legislature. If it were to be repealed it should be repealed by the Legislature, not by the courts.
If this were left to Wisconsin voters in a referendum — or if it became the key issue in electing a legislative majority — which way would they go? I suspect they might leave the law in place.
In an exhaustive report a couple years ago, the Wisconsin State Journal found that Act 10 worked pretty much as intended. Estimates are that, in its first decade of applicability, it saved taxpayers as much as $12 billion. If voters were given a choice between saving $12 billion and restoring union rights to public employees, I think I know how that would come out.
As for the legal action, that’s interesting. The unions which brought the suit want to now go straight to the Supreme Court with a view that the court will uphold Frost. They want to get the case before the court before August because it’s possible that, if conservative Brad Schimel defeats liberal Susan Crawford in the April election for an open seat, the court’s majority will flip back to conservatives when Schimel would be sworn in on August 1st.
For all intents and purposes, at least on the big questions, the Supreme Court has become just another legislative branch. We know that Schimel would vote to save Act 10 while Crawford will vote to repeal it. The legal arguments won’t matter, except as window dressing to cover previously decided political questions.
I suppose we could then make a strained case that this is democratic after all since, if the election hinges on Act 10, the voters will essentially decide its fate by choosing Schimel or Crawford. But that’s not the way it’s supposed to work and it’s not good for our system in the long run. The courts should be referees, not authors of public policy.
Act 10 is a major public policy question that should be decided by the Legislature and, by extension, the voters. And, in fact, there’s a fair chance that the Democrats will take back the Legislature in 2026 and we can see then if they want to change direction. That’s the way it should work. I suspect that opponents of Act 10 want it struck down by the courts because they’re not sure how this would go even if Democrats were in the legislative majorities.
Back in 2011, protesters against Act 10 chanted that “this is what democracy looks like.” The implication was that the people did not want Act 10. But do they?
Yellow Stripes & Dead Armadillos 
It wasn’t the elimination of collective bargaining that cut $12 billion in spending, it was the increased contributions to health care & pension that were passed alongside it. It was an extremely unfair policy that resulted in a small dip in pay for well-paid public employees but a huge pay cut for blue collar public workers like janitors etc.
I think how voters would act depends less on the facts than on how the issue was framed by Democrats & labor groups. People across the country generally regard public school teachers well and believe they should be well-compensated. And polls show that approval for unions is at the highest it has been in decades. Trump is appointing one of the few union-friendly Republicans in Congress to be labor secretary!
In 2011-12, the self-satisfied incompetents running the state Dem Party and union groups missed a historic opportunity to make a case for a labor revival. They expected voters to oust a sitting governor to protect rights that most of them don’t enjoy themselves. They never told a story about why everybody who had been battered by the Great Recession deserves more from their boss but that Scott Walker was cutting pay for janitors so that he could cut taxes for billionaires.
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Outside the 77 Square Miles Surrounded By A Sea Of Reality, Act 10 has been, and remains, wildly popular.
When they were no longer beholden to the obscenely overpriced WEA Trust Insurance***, many rural school districts were able to, among other spiffs, increase teachers’ pay.
***MONEY QUOTE: “(B)ut it’s the ultimate irony if WEA Trust is somehow arguing a lack of competition killed its health insurance business. What happened is exactly the opposite. COMPETITION RESULTING FROM ACT 10 BROUGHT DOWN THE UNION.” (bolds/caps/italics mine)
Factor in that those rural districts haven’t been duty-bound to MMSD…um…priorities like who can use which bathroom, permitting students to be wild and disruptive, Drag Queen Story Hour, lowering academics standards instead of trying to meet them, and reprimanding children on a METERED BASIS.
Those hicks; when will they ever learn…
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I hear critiques of Supreme Courts along the lines of “The legal arguments won’t matter, except as window dressing to cover previously decided political questions” a lot. But Supreme Courts largely determine issues of constitutionality. Constitutionality is a matter of opinion. We could write our constitutions to be more specific, but we didn’t, so they are open to interpretation. Interpretation is a political exercise. Almost anything can be decided to be constitutional or unconstitutional. Thus, yes, those we appoint to Supreme Courts are inherently political and always have been and always will be, unless we revise our constitutions to be more specific.
To this case, I think the most straightforward course of action is to remove the public safety exemption. If it’s so great to not have public sector unions, that should apply to everyone. The Cons brag about how much $ we’ve saved, it’d be a ton more if we didn’t have public safety unions.
I’m not a lawyer, but I don’t think we should make laws that only apply to some of us but not others without a strong rational basis in the public interest. I have yet to see a strong rational basis in the public interest for the public safety exemption in Act 10. There was do doubt a strong rational basis in the political interest 😉
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