Wisconsin Anti-Union Law Upheld and Why It Doesn’t Matter

A panel of federal judges upheld key parts of Wisconsin Gov. Scott Walker’s controversial Act 10, a state law that largely undoes collective bargaining rights for public sector union members. But here’s the news. The decision is not that big of a deal.

In a 2-1 decision the 7th Circuit Court of Appeals said the law’s ban on automatic dues withdraws and mandate that unions re-certify every year did not violate First Amendment freedom of association protections. The unions may decide to ask the full Seventh Circuit Court of Appeals to review the panel’s decision or they could skip that step and appeal the decision directly to the U.S. Supreme Court, though it’s unlikely the Roberts Court would agree to hear the matter without the entire Seventh Circuit weighing in first.

The decision would appear to be a significant loss for union supporters, but it’s not as bad as it seems. Two other lawsuits challenging the legality of Act 10 are still pending, including one last fall that struck down those same parts of the law. That case is now under review before the Wisconsin Court of Appeals and is not affected by the federal ruling.

Also, while the judges upheld the constitutionality of the donation bans and re-certification requirement, the opinion is hardly a warm embrace of Walker’s motives, tactics or the law itself. “The United States Constitution does not forbid all legislation that rewards friends and punishes opponents. The principal provisions of Wisconsin’s Act 10 may fit that description, but they are still constitutional under the generous standard of rational-basis review” the court wrote. In support of its conclusion that Walker’s legislative cornerstone amounts to base partisanship. The court quoted comments by Senate Majority Leader Scott Fitzgerald (R-Juneau), who said just before the law passed, “If we win this battle, and the money is not there under the auspices of the unions, certainly what you’re going to find is President Obama is going to have a . . . much more difficult time getting elected and winning the state of Wisconsin.” Said the court in response: “While Senator Fitzgerald’s statement may not reflect the highest of intentions, his sentiments do not invalidate an otherwise constitutional, viewpoint-neutral law.”

Naturally, Wisconsin Republicans were quick to applaud the decision, calling it a significant victory and totally ignoring the fact that the law remains largely blocked and the claims that Act 10 violate the Wisconsin state constitution have always been seen as the stronger challenges. Not that we could expect Walker and his crew to actually deal in facts.

Of course, the status of the legal challenges to his signature union-busting legislation may be the last thing on Walker’s mind and he faces ongoing scrutiny for federal corruption charges. There’s a real chance Walker could see a federal indictment soon, a fact that can’t be lost on Republican leadership as it tries to figure out whether to embrace or repel Walker for the 2014 election.

No matter what happens in the legal challenges we can all look at Wisconsin as the place where the shallowness of the modern-day conservative movement finally found a face — any maybe its first felon.