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Wisconsin Judge Throws Wrench Into Labor Law

A circuit judge in Dane County, Wisconsin has ruled that the state’s controversial law limiting public sector unions is unconstitutional. Previously in different cases the Wisconsin Supreme Court and a federal district court have largely upheld the law.

It will take time for the lawyers to sort this one out. Is the Dane County judge, as fans of the law suggest, a liberal outlier whose ruling will quickly be reversed on appeal? Or, as the law’s opponents contend, is the new decision a heartening endorsement of basic constitutional rights that puts a stake through the heart of an ill-conceived bill?

We shall see. Historically, public employees have not automatically enjoyed the same collective bargaining and union rights that workers in the private sector have. States have been thought to have the right to either concede or withhold collective bargaining rights from their employees. Once conceded can those rights be taken away? Or, is the old doctrine that states are at liberty to accept or reject unions for their workers itself unconstitutional?

An important argument that in our view makes a lot of sense holds that state and municipal workers have the right — and the ability — to form powerful political associations which can lobby for their interests through normal political channels. Many politicians would think twice about crossing a state teacher association, just as they don’t like to attack powerful lobbies like the AARP or the NRA. That’s a power over their employers that private sector workers don’t have. Giving public sector workers two bites at the apple — they can and do lobby through the political process and then they can use the collective bargaining process as well to fight for their interests — is, in our view, too much, and it leads to bad public policy.  Example: the imploding public pension systems around the country whose escalating costs are forcing state and municipal governments to cut vital services to service pension plans.

The lawyers will wrangle over these and related points for some time to come. In the meantime, though, polls show that the law remains popular though controversial in Wisconsin, and cities and towns across the state are benefiting from its provisions. One way or another, what Wisconsin needs most is an end to the lawfare over the issue. A year of upheaval, legislative votes, three separate court cases and decisions, recall elections for legislators and the governor: at some point this needs to stop.

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