MADISON — A Wisconsin Supreme Court hearing Monday begins a pivotal — and possibly decisive — act in the legal battle over Gov. Scott Walker’s controversial collective bargaining law.
Should the court uphold the decision by Dane County Circuit Court Judge Juan Colas to strike down key parts of the law, known as Act 10, unions likely would file additional legal challenges, said Marty Beil, executive director of the Wisconsin State Employees Union.
It also could cost Walker politically in the state, where he faces re-election next year, should the court overturn the law, said University of Missouri political science professor Peverill Squire.
But if the court upholds Act 10 — which many consider a more likely outcome given the court’s conservative-leaning majority — it would vindicate Walker, who has laid the foundation for a presidential run in 2016 in part on his anti-union credentials, Squire said.
“Certainly it strengthens his re-election effort to be confirmed by the court,” Squire said. “It will affirm his hero status among Republicans looking for someone to run hard against the unions.”
Meanwhile, public employee unions and their supporters in the state would have to turn their focus to a political battle that Beil said could take six to eight years or more to win.
“That means that we’ve got to work harder changing the Legislature and putting a governor in the east wing that supports worker’s rights,” Beil said. “We’re in a marathon here, we’re not in a dash.”
Walker said last week that the law not only has helped save billions of dollars for taxpayers, but also allowed local governments to hire and fire based on merit, pay based on performance, and put the best and the brightest in classrooms and government positions.
“That’s a tremendously positive benefit,” Walker said. “I would wager to guess that most local officials in this state … will tell you right now it would be a very, very difficult situation for them if somehow Act 10 was not upheld.”
Democratic gubernatorial candidate Mary Burke countered that “Act 10 divided and weakened our state.” In a statement to the State Journal she offered a clearer indication than before that she supports repealing the law.
“I support the right of our public sector employees to collectively bargain, and I would work with the Legislature to see how we could restore those rights,” Burke said. “Collective bargaining rights for public workers doesn’t conflict with making sure we have efficient, effective and accountable government.”
Two years in the courts
Monday’s hearing comes after more than two years of legal wrangling over the law, which curbed collective bargaining for most public employees, prohibited the automatic collection of union dues and required unions to recertify annually, among other things.
Of five major legal challenges to the law, the Colas ruling in Madison Teachers Inc. vs. Scott Walker is the only one standing that declares parts of the law unconstitutional. The other cases have been rejected by judges from local circuit courts to a federal appeals court. One challenge by the AFL-CIO was rejected by U.S. District Judge William Conley, but remains under appeal.
Given the federal precedent upholding the law, it won’t be surprising if the court splits 5-2 or even unanimously overturns the Colas decision, said Rick Esenberg, a lawyer and president of the conservative Wisconsin Institute for Law and Liberty. The court is officially nonpartisan, but conservatives hold a 4-3 majority.
“It’s quite clear that there’s no constitutional right to collectively bargain,” Esenberg said. “If, as I suspect will happen, the state Supreme Court upholds Act 10, I think that’s effectively the end of litigation regarding Act 10.”
Lester Pines, who is representing MTI in the case, agreed that a defeat for his side would signal the end of the legal challenge to Act 10, with the exception of the AFL-CIO case. But assuming the court will split along ideological lines is a “very superficial analysis of this situation.”
Pines said he will argue that Act 10 violates state and U.S. constitutional protections of the freedom of association. The law allows employers to give raises of any amount to nonunion employees, but restricts raises for unionized employees to an inflationary increase.
“The law is designed to penalize people from making an associational choice,” Pines said. “There’s no guarantee on either side of the case that when the court closely looks at the constitutional issue that it’s going to go one way or the other.”
The Supreme Court’s decision, which isn’t expected until early next year, might not settle the fate of union contracts that have been signed since Colas ruled, including one that MTI entered into with the Madison School Board earlier this year.
Pines said even if the court upholds the law the contract should remain in effect through June 30, 2015, but Esenberg said Madison taxpayers or teachers who don’t want to pay dues could sue to void the contract.
Court battle gains national attention
The case is being watched nationally, especially as many states are facing the types of fiscal problems that Walker used Act 10 to address in Wisconsin, said Roger Pilon, vice president for legal affairs for the Cato Institute, a libertarian think tank.
“I think this case is a harbinger of things to come in other states that are similarly strapped because of improvident promises that were made in the past to public sector unions,” Pilon said.
The case will generate more national attention if the Colas decision is upheld and parts of the law remain overturned because it would be unexpected, said Wilma Liebman, a guest lecturer at Cornell Law School and former chairwoman of the National Labor Relations Board.
“Whether it has broader implications for public sector bargaining, it’s hard to know because the damage has already been done,” Liebman said.
Since Act 10 passed in 2011 amid tens of thousands of protesters storming the Capitol and Senate Democrats fleeing the state to temporarily block its passage, other Republican-led states have tried to scale back collective bargaining at the urging of national conservative groups.
But none have been as successful as Wisconsin, said Richard Boris, director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at City University of New York.
Boris said Act 10 — by requiring annual elections, prohibiting automatic dues collection, known as fair share, and not allowing unions to bargain over benefits and working conditions — knocks out all three legs from the stool that has allowed public sector unions to thrive for decades.
The Colas decision, he noted, did not restore all three legs. Prior to Act 10 employers had to bargain with employees or have their differences settled by a third-party arbitrator. Act 10 prohibited employers from bargaining over anything but an inflationary increase in wages.
Colas struck down the prohibition, but did not restore arbitration, leaving the decision whether to bargain in the hands of the employer. That includes whether to allow automatic dues collections on behalf of unions.
“If they want the right to collectively bargain in any real sense, they’re going to have to convince the voters of your state that everybody’s rights are jeopardized if unions can no longer function,” Boris said.
Public employees are already grappling with how to win back support from voters who re-elected Walker by a seven-point margin in 2012 after opponents collected about 900,000 signatures to recall him.
“We know that we’ve got to reach out to our communities, let them know what unions stand for and how we advocate for both students and neighborhood public schools,” Wisconsin Education Association Council president Betsy Kippers said. “We’ve got to continue that no matter what the outcome of this case.”