Government employees

Wisconsin Public-Sector Union Limits Suffer Courtroom Setback

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Public unions and their friends in government

That big, bad Wisconsin law that restricted the collective bargaining rights of (most) unionized state workers may have won at the polls, but it lost a round in court. In a case brought by government workers' unions, Circuit Judge Juan B. Colas ruled that the law violated constitutional rights, including freedom of association, free speech and equal protection, and issued an injunction against the enforcement of the law's provisions.

In his judgment in Madison Teachers, Inc. et al v. Scott Walker (PDF), Colas wrote:

It is undisputed that there is no constitutional right to collective bargaining. Similarly, there is no constitutional right to a government-subsidized housing program. Yet the courts have held that once the government elected to offer subsidized housing it could not condition eligibility for it upon surrender or restriction of  constitutional right unless that surrender or restriction was necessary to prevent a substantial evil that would threaten the operation of the program. In the same way, when the government elects to permit collective bargaining it may not make the surreder or restriction of a constitutional right a condition of that privilege.

Colas goes on to argue that the Wisconsin legislation so closely associated with Governor Scott Walker "impose significant and burdensome restrictions on employees who choose to associate in a labor organization." Specifically, union members can bargain collectively only for cost-of-living increases, while non-union members can negotiate on their own without limitation, and aren't bound to assume the costs of collective bargaining by union members, even if they end up benefiting from the outcome of union efforts.

Colas also makes the odd argument that union members equal protection rights are violated because the Wisconsin law created "distinct classes" that are treated differently. The two classes are unionized government workers and non-unionized government workers, and he rejects the state's defense that these classes are self-selected when workers choose whether or not to join a union. Calling the differential treatment of people based on their voluntary decisions an equal protection violation seems a hell of a stretch, but this is far from the first courtroom decision to faall into that category.

The Illinois Policy Institute suggests that the point Judge Colas concedes — that collective bargaining by public employees "is no constitutional right" — is likely to get him reversed. In fact, the Supreme Court has recognized that public-sector unions are in a separate and more powerful position than private-sector unions largely because of the "special character of the employer" which is usually politically divided and divorced from the economic concerns of your average for-profit business. As such, they can be subjected to greater constraints.

If Judge Colas's decision is politically motivated — and Governor Walker's office insists it is — so might be any higher-court ruling as the case is appealed. And while we know that public sentiment isn't supposed to enter into judicial decisions, it's worth noting that Reason found generally favorable opinions toward restrictions on public-sector unions among residents of the Badger State when we polled them earlier this year, and many respondents were disappointed that police and firefighters were exempted from its provisions.

Oh, and since Judge Colas is so concerned about "distinct classes," let's not forget that there really are two classes in this country: those of us who produce, and the public employees who feed off us. The Wisconsin court decision was just the latest round in America's own version of class warfare.

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  1. The cartoon needs more labels.

  2. It is undisputed that there is no constitutional right to collective bargaining. Similarly, there is no constitutional right to a government-subsidized housing program. Yet the courts have held that once the government elected to offer subsidized housing it could not condition eligibility for it upon surrender or restriction of constitutional right unless that surrender or restriction was necessary to prevent a substantial evil that would threaten the operation of the program.

    So the government offers favorable zoning to one property but not to another property…

    Well you know where this is going…somehow I doubt Judge Colas would find for offering favorable zoning for any property owner who asked for it.

  3. The most significant reform in Wisconsin by far was ending payroll deduction of union dues. Once that happened, AFSCME lost 2/3 of its membership in Wisconsin, showing that the majority of public union membership in that state was involuntary.

    -jcr

    1. The next step is a sunset provision to automatically decertify unions ‘shops’ every few years absent an affirmative majority vote to continue.

  4. Just like the CTU strike, and as Matt Welch pointed out a couple of years ago, this is merely what it looks like when groups of “entitled” people fight over the last pieces of a steadily shrinking pie.

    I expect it to get uglier as time goes on. RAHAHAHAHAHAHAHAHAHA!

    1. That running out of other people’s money thing. You can’t have this big benevolent government that liberals want if the public employees are bankrupting the government. In a sane world liberals would be the ones most upset by public employee salaries. But that would require liberals to understand there is such a thing as scarcity.

      1. “But that would require liberals to understand there is such a thing as scarcity.”

        This! I am always dumbfounded when I talk with someone and they truly don’t realize there are economic limits to anything.

      2. Liberals want government “service” to be the most attractive and rewarded professional choice. In their minds public workers represent an elite who should not only be paid better, but should also be given special privileges.

  5. Ha, here’s the thousand comment post I was talking about:

    https://reason.com/blog/2011/02…..ent-should

    1. Can any libertarian explain to me why the government should decide for unions whether they have a right to use collective bargaining or not? Isn’t that… *Fascism*?

      Oh wait, I forgot, you guys see public employees as subhumans, and you thoroughly approve of using democratic *force* to subjugate them.

      Taxation even via democracy is theft, forcing public unions to disintegrate via democracy (and faked fiscal problems that busting unions won’t solve) is not fascism.

      Why do you libertarians insist you are free-thinkers who abjure both parties equally? You weigh republican to the degree where you even abandon your own philosophy just to side with them against the hated Obama. Fucking scum.

      Good times.

      1. It would seem that the basic “right” you speak of is employment it will. Collective bargaining shouldn’t be a problem as long as people aren’t compelled to join the union and the employer is allowed to replace employees who strike or who won’t agree to a contract. Even work rules would be okay, as long as the employer could decide use non-union members if the union insisted on work rules that were unacceptable. And employees shouldn’t be forced to pay dues to an organization just for the right to be employed.

        Eliminate these coercions, and free association wouldn’t be an issue and unions would be just fine

        1. excuse me – “employment at will”

        2. You do realize I was quoting from a comment in the thread sage was referring to right? Probably not though since you’re retarded.

  6. Calling the differential treatment of people based on their voluntary decisions an equal protection violation seems a hell of a stretch…

    But not the first time it’s been argued.

    1. Indeed. The conservative christian argument is this:

      Homosexual behavior is voluntary. Therefore the state can discriminate against homosexuals without violating the equal protection clause.

      1. Yes and argument Judge Colas’ argument is just as stupid as that one. But I tend to expect a little more from Judges.

    2. Not sure if that dog is going to hunt, though. Religious belief is a voluntary decision and religion is a protected class under EPC jurisprudence.

      I’ve never seen a good explanation of why the EPC should apply to certain classifications but not others… and you can’t extend it to every possible classification without creating total chaos.

  7. I’m always amazed by the difference in connotation between the “government sector” and “public sector” and between “government employee” and “public employee;” the latter makes you think of some noble mother theresa type, while the former brings visions of six guys leaning on their shovels while two are actually working, or of some slow-moving and officious clerk impeding progress just because she can…

    Stossel takes it a bridge too far when he uses the term “government schools” in place of “public schools” but otherwise he definitely on to something

    1. Why? They are government schools.

      1. By getting away from the fact of government operation, by obfuscating this key fact, the govt-fanciers are probably trying to insulate themselves from criticism for the less-than-stellar record of the govt schools. If they had a stellar record, wouldn’t the govt-fanciers be trumpeting the fact of government ownership rather than trying to obscure it?

      2. its not a question of correctness, it’s a question of what the listener’s subconscious is willing to accept without pushing back…”government schools” seems stridently perjorative, and as such, the listener’s defenses are up…

        It would be an interesting study to do word association with a random cross section of the population to gauge reactions

        1. So the truth should be avoided because it might be difficult for some people to accept? That makes you a coward.

          1. normally i would respond that your comment marks you as an ignoramus, but why get drawn into an ad hominem exchange…

            When you make a public policy point, why don’t you couch it in terms that mark you as a rabid extra chromosome type and see how many people you influence?

            I’ll do my best to make sure the format of my message doesn’t detract from the content and see if i am any more successful …

            This could be the policy equivalent of the Darwin awards…

            1. You say you are not going to use ad hominem yet use them anyway. So not only are you a coward but you’re a pussy as well. Congratulations.

              1. RBS: When you get past 10th grade debate club, you’ll understand the importance of presentation in addition to truth.

          2. No, it makes him an effective advocate for his (and your) position. Massagers of the truth have done far more to advance liberty than those who blurt out whatever truth comes to mind.

        2. We should use Suprynowicz’s “propaganda indoctrination camps”.

    2. Although the “government employee” vision is probably closer to reality.

  8. “…those of us who produce, and the public employees who feed off us.”

    I like your posts, and I agree with you (and Reason) on most issues, including this one. But this kind of rhetoric alienates people (besides being unfair), and I see it with increasing frequency on Hit Run.

    1. I think there is a lot more polarization between the public and private sector advocates. This is not limited to our side. See, for example “you didn’t build that.”

      1. I think there is a lot more polarization between the public and private sector advocates.

        Agreed.

        I’m on the verge of losing a very close friend because I criticized sweet contracting deals and horrible policy advocacy on the part of fucking prison guard unions.

        He immediately tried to turn the conversation in to me acting like a robber barron waging war on the “working class.” When I asked about all of the working class people who work in the private sector who pay taxes and don’t draw a paycheck from the taxes of others while not instilling power in unions which seek at every turn to take yet more money from others’ paychecks and advocate for horrible policy that benefits only them at the expense of mostly poor and lower middle class people (such as harsher sentencing and the fight against drug liberalization laws), I got a stern “No, you don’t get it. FUCK YOU.”

        Some people see public union workers (and their unions) simply trying to carve out a better living for themselves, completely ignoring or otherwise setting aside that the said living is directly supported by others who are taken from.

        1. Private workers also get their pay from the people they serve, the difference is that it is much harder for them to evade that fact than it is for public union workers. Private workers learn to be grateful and appreciative of customers who could bring their money elsewhere. Public workers never have to learn that, it seems to become more about them and what they “deserve” with each passing year. Less about demonstrating value to the people they say owe them more money.

    2. How is it unfair? They take from us, without our consent, and provide shitty service in return if they provide anything at all. You could argue that they have the consent of the public in general, but when the majority of the public is composed of takers, it’s more sensible to think of that half as “them”, entirely separate from “us”, and with irreconcilably opposed interests.

    3. Fairness comes when they stop stealing from my wallet and provide a service like I do, strictly along voluntary terms. That would be fair. You don’t think their theft alienates me but accurate rhetoric alienates them? Poor babies.

      What is up with the sensitivity mongers pretending to be on our side of late?

    4. What is that public employees actually produce? Other than inertia, lethargy, parasitism, dead dogs, ruinous debt, entire forests of paperwork wiped out, stuffed pockets, corruption and sleaze, that is.

      1. National security, contract enforcement, criminal deterrence.

        1. Yes, their “deterrence” is positively criminal.

  9. I curious as to whether the court injunction essentially forces non-union members to pay union dues.

    How is it fair for a court injuntion to basically compell positive action on the part of third parties?

  10. It’s only unfair in that it understates reality. It could accurately be called “New Nobility”. In my city they steal through public/ private synergies which are vehicles for graft and corruption. Hell, even the local head of the school board has personal security detail and a driver. They vote themselves raises, hire cronys, and win elections from prison because they promise manna to the leeches who make up the majority of the population.

    1. Meant as a response to nadamo

  11. Oh, and since Judge Colas is so concerned about “distinct classes,” let’s not forget that there really are two classes in this country: those of us who produce, and the public employees who feed off us.

    Why is a private school teacher “productive” and a charter school teacher a parasite? I’d love to hear a coherent explanation.

    1. I’d love to hear what it’s like to be under five feet tall, joe.

    2. One is given taxed ie stolen money in exchange for usually mediocre or worse teaching. The other nobly performs a job in voluntary exchange.

      1. I think the part he takes issue with is the “productive” part. If public school teachers aren’t producing anything, he posits, how can we say private school teachers are producing anything?

        At least in part, I agree with him. Not all public school teachers are bad at what they do. Nor are all public school teachers overpaid. It depends on the district. It is in particular parts of the country (such as Chicago) that we see overpaid teachers with underperforming students.

        1. But from a philosophical standpoint, without a free and uncoereced exchange between equal actors, we can never know for sure if that public school teacher is productive or not. With a private school good teachers remain and bad teachers get fired. If for some reason all the teachers are terrible, the parents pull their kids out of school and find new schools, and the bad school goes bankrupt. Government schools are totally insulated from the most important market force: the mechanism of choice.

          1. I’m not convinced that “productive” is equivalent to “selected by the market”. I’d say that most firefighters are productive despite being employed in a non-market situation, and there are plenty of unproductive morons making money in the private sector.

            Michael Moore, for example, is totally successful in the private sector, but to call him “productive” would be a strange thing.

            1. If someone isn’t willing to pay you to do it of their own free will, you’re not a producer, you’re a parasite.

              Moore produces a product people are willing, even eager to buy without anyone putting a gun to their head to force them. It’s really kind of a basic bit of moral reasoning Tulpa.

              1. If someone isn’t willing to pay you to do it of their own free will, you’re not a producer, you’re a parasite.

                Being paid doesn’t mean you’re producing something. I can pay a tutor for my kid, and the tutor can teach the kid utter crap, thus “producing” nothing. I can pay a person to stick needles all over my body to cure cancer, and yet it doesn’t cure my cancer.

                Also, we don’t want to fall into the false choice of “producing or not producing”. It isn’t that public school teachers can’t produce. It’s that they don’t produce enough to justify the levels of money being pumped into them.

              2. So you’re arguing that the only activities that are “productive” are ones that someone is willing to pay you to do?

                Childbirth, parenting, volunteering…

                1. Those transactions are famously hard to value. Only paid work makes it into anyones calculation of gdp.

    3. The answer is that besides the participants of the exchange, it’s none of anybody’s damn business if the private school teacher is productive. For the socialist public school system it’s everybody’s business which means nobody cares. I realize that there are exceptions but they seem to be….well…the exception.

    4. He did overstate his case there, but you’re nitpicking. You read the entire post and this is all you have to criticize?

      1. Obama gave a long speech and all you can criticize is “you didn’t build that?”

  12. Enough with the half-measures. Wisconsin legislature just needs to get it over with and make themselves a right-to-work state. Let anyone in any job chose whether or not s/he wants to pay union dues.

  13. The argument that the government can’t pay you to surrender constitutional rights has been around for a while but it never made economic sense. It should obliterate any conditions on government money at all, even for employees and contractors (or the government could just evade restrictions by counting everyone getting welfare or a grant as a contractor).

    1. To clarify, you pay people to do or to not do certain things. People have a de facto right to not come into work; employers pay people to surrender free time and come into work. Without conditions on money, you are making the government unable to participate in commerce. Of course, the courts don’t take the argument this consistently. They really just want a way to protect certain activities without endangering some subsidy checks. This line of caselaw has always been ridiculous.

      1. In the example of subsidized housing, the problem is that govt housing crowds cheap, private sector housing out of the market, so that poor people would essentially be forced to surrender their rights if the govt conditioned subsidized housing on surrendering rights.

        To my POV, the problem is the existence of subsidized housing.

  14. t is undisputed that there is no constitutional right to collective bargaining. Similarly, there is no constitutional right to a government-subsidized housing program.

    And he should’ve just stopped there. That was the high point of the decision.

  15. The problem is not just the unions. It’s also the fact that we have such high hopes for the outdated and narrow model of forcing kids through an educational assembly line. Kids should not be forced to go to school. Even if there is a choice of which school you have to send your kid to, you’re still in danger of having your kid with peers who would be better off with a job and/or whose parents just use the institution as a babysitter.

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  17. Hmmm, the drawing accompanying the piece is unusual: a left-handed handshake. Wonder if that has any significance…

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