Monday, November 7, 2011

What Is With Wisconsin?

Labor, Collective Bargaining, and the Wisconsin Supreme Court
By Nicole Nielson

Nicole Nielson, a third year student at Albany Law School, is a member of the Albany Law Review, the student Executive Editor of the Law Review's annual State Constitutional Commentary issue, and a Senior Editor of the Center. In this paper, prepared for the State Constitutional Adjudication seminar at the law school in the Spring 2011 semester, she explores the Wisconsin Supreme Court's labor and employment jurisprudence over the past 10 years, with the state's recent restrictions on collective bargaining as a backdrop.
[Note: The day after this post was published, the voters of Ohio repealed similar restrictions on collective bargaining that were recently enacted in that state under the felicitously named "Jobs Budget " law.]

During the winter of 2011 Wisconsin state budget cycle, Governor Scott Walker proposed a bill that would have a drastic impact on the collective bargaining rights of the state’s public employees. At first, the legislature balked, with the senators of the state’s Democratic Party literally fleeing across the border to prevent the requisite quorum to pass the bill. Eventually, under the watchful, critical eye of the nation, the bill passed. The executive branch and the legislature had presumably prevailed to eviscerate the spirit and concept of collective bargaining. Engaging the judicial process, advocates filed for, and were granted, an injunction at the state county circuit court level, disputing the validity of the new legislation, which stripped away previously authorized rights for labor with respect to collective bargaining. 

Nothing happens in a vacuum, and Wisconsin is no exception. Although the influence of special interest money in the election campaign of 2010 was often cited in the media as a driving force in the proposed legislation, it was not the only factor. In context, the “Budget Repair Bill” reflects genuine discontent with the current economic reality, as well as a generalized public perception that the unionized public employees have an unfair benefit when compared with private sector employees. This perception exists on a national level, but is inconsistent with Wisconsin’s generally progressive attitude and historical approach to labor in both the public and private sectors. The context in which the perception of distrust and unfairness related to public employment began to garner supporters a while ago – it did not develop overnight. It is the manifestation of longstanding tensions between labor and employers that have been percolating for years.

As an independent branch of the state’s government, charged with exercising checks and balances on the powers of the executive and legislative offices, the Wisconsin judiciary would necessarily be called upon to interpret and enforce the provisions of the controversial collective bargaining rights legislation which was passed despite epic protests. The involvement of the judicial branch commenced quickly – challenges to the legislation started making their way through the court system. As the state’s highest court, the Wisconsin Supreme Court would likely have the final say on the implementation of the legislation.*
* Citations to references in this introduction are available in the paper.
Read the entire paper HERE.