Wisconsin Public-Sector Union Limits Suffer Courtroom Setback


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.