In the Act 10 ruling, a handy boost from, of all places, the Citizens United case | Wis.Community

In the Act 10 ruling, a handy boost from, of all places, the Citizens United case

Aside from the ruling itself, which is an important if partial win for Wisconsin public employee unions, one of the most interesting aspects of Federal Judge William Conley's order overturning two key aspects of Act 10, Gov. Walker's anti-union law, is a key precedent he cited in favor of the unions.

Ironically, Conley, of the Western Wisconsin U.S. district court, drew heavily on language in Citizens United, the case in which the US Supreme Court ruled that corporations in essence could spend unlimited sums of money on campaign-related activities.

The Citizens United decision has been reviled by the vast majority of citizens (up to 80 percent, in some polls) as well as labor unions, whose own political campaign efforts already were swamped by corporate cash before Citizens United turned the latter's faucets wide open.

So how can Citizens United be a precedent in favor of labor union rights? Because the judge ruled that the most pernicious aspects of Act 10 amounted to an unconstitutional restriction by the State of Wisconsin on the free speech of public employee unions affected by Act 10, which was all of them excepting "public safety" unions representing police and firefighters, unions that supported Walker's campaign for governor. From the section of the judge's opinion that discusses the law's removal of automatic payroll deduction as a way for general employee unions to collect member dues:

Defendants [the Walker administration] also concede that general employee unions have lost dues and will continue to lose dues because of this barrier to ease of payment... Selectively prohibiting public employers from providing this service to general employees and their unions necessarily diminishes their speech--both general employees’ ability to support their union financially, as well as the union’s ability to fund its speech. See Citizens United, 130 S. Ct. at 898 (noting that less spending on speech "‘necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of the exploration, and the size of the audience reached’"...

Moreover, the fact that unions can create alternative means to collect dues does not ameliorate this restriction. Cf. Citizens United, 130 S. Ct. at 897 (finding speech of corporations hindered even though corporations could speak through the "burdensome alternative" of PACs).

In short: Conservatives hoist with their own petard! Not only is the otherwise evil Citizens United decision now brought to bear on behalf of public employee unions, but Judge Conley may have anticipated that the State of Wisconsin will appeal his ruling to the federal appeals court, and presumably, if that court concurs with the decision, on up to the US Supreme Court.

It might be hard even for right-wing ideologues like Justice Antonin Scalia to overturn Conley's ruling, if in so doing they have to contradict their earlier reasoning in Citizens United. On the other hand, no one's ever accused the Supreme Court's current conservative members of being consistent or particularly fair-minded. But at least the marker is in there: Conservatives simply can't have it both ways while remaining logical and just. History, of course, suggests they'll try, nevertheless.

In another part of his decision, Judge Conley addressed the argument between state government and the labor unions regarding whether the unions' "rights" were being violated. Read the judge's comment and savor:

Defendants criticize plaintiffs’ use of the term "rights" as in the phrase "collective bargaining rights," implying that plaintiffs’ use is intended to suggest an inalienable, or at least constitutional, right to collectively bargain... . At least in a legal context, however, the term "rights" need not be so fundamental. Thus, courts often refer to rights derived from other sources... . Since collective bargaining rights for state and local public employees are a creature of state statute, a fact that neither plaintiffs nor defendants dispute, defendants’ criticism is, at best, a linguistic red herring.

The judge didn't go on to say this, but I will: There is your description of Walker-style politics in a phrase: red herring. As in this entire, misbegotten law.

Published

March 30, 2012 - 8:29pm

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