Wisconsin’s Anti-Union Model Faces Reckoning as Top Court Shifts

A Wisconsin law that sharply curtailed public employee unions and became a lodestar for the Tea Party movement is the latest target of a small but growing campaign by organized labor to upend red-state legislation in the courts.

A lawsuit filed Nov. 30 with a state circuit court takes aim at Act 10, a 2011 law by then-Gov. Scott Walker (R) that places strict limits on collective bargaining and dues collection, and increases the share of benefits paid by unionized teachers, bus drivers, government support workers, and other public employees.

Government-sector unions seek to leverage the state Supreme Court’s recent flip from a conservative to liberal majority as their only probable opportunity to get rid of the law in the foreseeable future given that the legislature remains dominated by Republicans. Democrat Janet Protasiewicz tipped the scales by winning the April 4 election, which attracted national attention and became the most expensive state judicial race.

The effort follows unlikely outcomes in Missouri and Kentucky, where courts have overturned anti-union laws. And unions aren’t the only issue in the Democrats’ sights. The Wisconsin Supreme Court is already considering Republican-drawn legislative maps and is expected to take up a major abortion case soon.

Act 10 has taken a perilous toll on Wisconsin unions, which have lost more than a third of their members since the law took effect, according to US Bureau of Labor Statistics data.

Starting in 2015, union membership in Wisconsin dipped below the national average and hasn’t exceeded it since. And in 2022, just 7.1% of the workforce belonged to a union—a third of what it was in 1989—also reflecting a decades-long erosion of Midwest manufacturing jobs and aftershocks of the Great Recession.

“Historically a public-sector job was a destination-style job,” said Wayne Rasmussen, an electronics technician for Racine Unified School District and president of SEIU Local 152. “And now it’s a stepping stone. The school district is less able to retain qualified employees.”

But Walker and his allies—characterized by the Tea Party’s fiscally conservative, anti-regulation movement—have defended the reforms. They point to savings for taxpayers by mandating bigger employee contributions to health care and retirement benefits.

“We put the power back in the hands of the people we elect at the local level,” Walker said in an interview. “The school boards, the city councils, the county boards—as opposed to the union bosses—to make decisions.”

Wisconsin Governor Scott Walker speaks at the American Action Forum January 30, 2015 in Washington, D.C. Walker’s Act 10 in 2011 became a Tea Party landmark and set him up for an unsuccessful presidential run in 2016.

Photo by Win McNamee/Getty Images

Proponents of Act 10 also noted previous attempts to repeal the law through the political process, including a high-profile recall campaign that Walker survived in 2012.

“They’ve been trying to overturn it through the legislature and the ballot box and have been wholly unsuccessful,” said Brett Healy, president of the conservative John K. MacIver Institute for Public Policy, which estimates Act 10 has saved taxpayers $16.8 billion as of this year.

Act 10 also made it easier for school districts to fire low-performing teachers and retain good ones, said Walker, now president of the Young America’s Foundation, a conservative activist organization for youth.

The former governor pointed to the state’s standardized test scores and graduation rates, which typically meet or exceed national averages.

“We’ve seen tremendous success,” Walker added. “All the attacks they said at the time, how this would devastate schools, proved be just that—attacks. They don’t match reality.”

Public v. Public

The Wisconsin plaintiffs include two locals of the American Federation of State, County, and Municipal Employees and the Wisconsin arm of the Service Employees International Union. They’re homing in on a small piece of Act 10 in their constitutional challenge: an exemption that allows public safety officers to have more robust unions than other public workers.

The law banned public employees from bargaining over hours and general conditions of employment, limiting negotiations to wages alone. Even then, the law prohibits raises greater than the cost of living as calculated by the consumer price index, leaving unions little room to maneuver.

It also required public employees to contribute more to health care and retirement, and mandated unions go through the intensive process of holding annual recertification elections and collecting dues from members one by one.

Those restrictions don’t apply to most police and firefighters unions, however. Walker said that aspect of the law was meant to protect public safety, but opponents claim it was a gift to his political supporters, since police and firefighter unions are usually among the only labor groups to support Republican candidates.

In Missouri, a public safety carveout led the state’s Supreme Court to overturn a similar law in 2021, finding that it violated equal protection rights guaranteed under the state constitution.

And in Kentucky, a state circuit court judge in September ruled against a law prohibiting most public sector unions from collecting dues through payroll deductions, citing an “unconstitutional distinction” between public safety officers and other public employees.

The union plaintiffs in Wisconsin must convince the court that there was no rational basis for the division, said Carla Katz, a labor law professor at Rutgers University. Central to their strategy has been pointing out that some public safety officers, such as conservation officers and capitol police, weren’t included in the exemption.

“It’s clear disparate treatment,” said Ben Gruber, a conservation officer and president of AFSCME Local 1215 who is a plaintiff in the case. “The wardens of Local 1215 are certified law enforcement offices by the state Department of Justice. We carry firearms. We have arrest and citation powers. We do all of the things that our brothers and sisters in law enforcement across that state do. We are public safety.”

Walker, for his part, said he wanted to ensure that communities wouldn’t be left without emergency services—but now believes that wouldn’t be a problem.

“We knew we were able to handle things within state government that would require backup plans if union employees tried to walk off the job,” Walker said, reflecting on his thinking in 2011. “What we didn’t know at the time is whether or not we could handle more than 2,000 municipalities and counties across the state and guarantee that there would be no slowdowns or gaps in coverage.”

“What we’ve seen since is you can very easily do that,” he continued. “If that’s what they’re arguing for then go petition the legislature and the governor to add fire and police.”

The case is Abbotsford Educ. Ass’n vs. Wis. Emp’t Relations Comm’n, Wis. Cir. Ct., No. 2023CV003152, complaint filed 11/30/23.