Wisconsin “Citizens United”

On Friday March 30, 2012, Federal District Judge William M. Conley struck down key provisions of Governor Scott Walker’s marquee legislation, WI Act 10, which stripped public workers across the State of Wisconsin of their right to collectively bargain. Although Judge Conley ruled that the State was within it’s right to deny public workers their bargaining rights, he enjoined the State from prohibiting the collection of dues, requiring yearly re-certifications of unions, and the mandate requiring that a majority of union members participate in elections.

In an interesting twist of fate, Judge Conley cited “Citizens United v. Federal Election Commission” multiple times in his ruling. Citizens United is the controversial Supreme Court ruling that opened the floodgates of Corporate spending in U.S. elections. It also allowed the formation of Super PACs, 501(c)(4) non-profit corporations that can raise unlimited amounts of contributions to run “issue ads”. The ruling struck down provisions in the 2002 Bipartisan Campaign Reform Act, popularly known as the “McCain-Feingold Act.” It specifically referred to prohibitions on “electioneering communications” by corporations, unions and individuals. Perhaps the most contentious aspect of the ruling was the majority’s opinion that corporations must be afforded the same First Amendment Protections as individuals. Key provisions of McCain-Feingold regulating the airing of “issue ads” had previously been struck down in “Federal Election Commission v. Wisconsin Right to Life, Inc.”

Judge Conley wrote:

“…..unions engage — indeed, one of their core functions is to engage — in speech.  See Citizens United v. Fed. Election Comm’n. 130 S. Ct. 876, 900 (2010) (“Corporations and other associations, like individuals, contribute to the discussion, debate and the dissemination of information and ideas that the First Amendment seeks to foster.”…….There is no dispute that the plaintiff unions engage in speech……This speech is not limited to the realm of politics, but also constitutes other forms of expressive activity…..

Under Act 10, general employees may still pay voluntary dues and their unions may still engage in speech, including political speech. In that way, Act 10 does not prohibit general employee unions’ or their members’ speech, but it does bar the most efficient method by which these unions collect and their members pay dues. Defendants also concede that general employee unions have lost dues and will continue to lose dues because of this barrier to ease of payment.”

“General Employees” is a category of public workers created by Act 10 to differentiate them from those exempted from the law, specifically most Firefighters and Police Officers. In his ruling, Judge Conley reasons, that the State could have mandated yearly recertification by the “general employee” unions except:

“….the court finds this onerous recertification provision would typically pass the admittedly low bar of rational basis review, but for defendants’ failure to articulate and this court’s inability to posit, how an annual, absolute majority vote by a wholly-voluntary union could rationally advance a reasonable purpose. Unlike the concern over work stoppages by public safety employees restricted as to their bargaining rights, the requirement for annual proof of support by an absolute majority of union members applies only to general employee unions who are unable to compel any participation of any employee in its union activities, even the payment of a “fair share” fee. The only right granted this union is to bargain collectively on an adjustment in base pay. Even if this Governor and the Legislature had a reasonable concern that this remaining bargaining right might be abused, the concern is not rationally advanced by an unprecedented burden on a voluntary union’s right to continue to exist from year to year. On the contrary, it seems irrational to impose this unique burden on a voluntary union with highly restrictive bargaining rights while maintaining far less burden on public safety unions in which involuntary membership and monetary support continue to be mandated by law.”

The creation of two classes of unions by Act 10 repeatedly runs afoul of the Supreme Courts reasoning in its ruling on “Citizens United v Federal Election Commission”. Specifically, the court expressed concern that “The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion.”

Signaling their intent on appealing the ruling, Governor Walker’s spokesman Cullen Werwie said on Friday, “We are confident that the 7th Circuit Court of Appeals will continue to uphold the constitutionality of the law,” It will be interesting to see how the Administration argues against key provisions of the “Citizens United” ruling in their attempt to rehabilitate Act 10. In the meantime, public employee unions in the State of Wisconsin have been given a reprieve from an almost certain demise, and are assured to exercise their political clout in the wake of recall elections set for June 5, when automatic due deductions are reinstated, no later than May 31, 2012.


Testimony: Remembering March 9, 2011

Arthur Louis:

I was at work at a coffee shop on the east side, almost had to quit my job and leave but my boss was amazing and came in to cover the rest of my close.

Samantha Masterton:

I had been feeling very helpless and isolated from the events in Madison. I organized a small protest in Wausau on March 9 to champion workers’ rights and so I could be with some like-minded people and not feel so alone. During the protest, someone shared the erroneous news that Walker had removed collective bargaining from the budget bill, so even though everyone was skeptical, we were happy for a few minutes until we found out the truth.

Laura Chern:

I was at a meet and greet for JoAnne Kloppenburg. Someone interrupted her stump speech because she received a text. Half the room left for the Capitol right then.

Ryan Wherley:

I was leaning over the first floor railing of the Capitol rotunda, having gone home early from work to visit the doctor and try and cure whatever had ailed me since the beginning of the protests. This was my first time inside the Capitol since the building had gone into illegal lockdown and I had come that day to see what the atmosphere was like now that all of the signs had been taken down and the masses of humanity had dried up. Around maybe 4:45, a woman came running up to the same balcony I was on and began screaming bloody murder that someone within the TAA had learned that the Repugs were splitting the bill and going into session at 6 p.m. She yelled something along the lines of “Get on your damned phones…call, tweet, text, I don’t care what you do, just get people down here as quickly as you possibly can!!” At that point, no more than 20 to 25 silent protesters were present in the Rotunda. I instantly descended the stairs and went running to my car in the nearby parking ramp to gather up my protest signs. By the time I returned to the Capitol no more than ten minutes later, there was already a line of maybe 100 people waiting to go through the building’s metal detectors. I was stunned. As I made my way in, the whole crowd was making a beeline for the corner of the Capitol the illegally-called meeting would take place in. The sheer amount of people crammed into the several floors as the clock ticked nearer to 6 was incredible. I had staked out a spot no more than fifteen feet outside of the door leading to the destruction of fifty years of workers’ rights in Wisconsin. I had heard noisy crowds in the early days of the protests but nothing to the extent of what was ensuing. In those early days, there was a sense of hope. On March 9th, the tenor had completely changed to one of sheer outrage. The looks of pain, frustration and anger were visible on nearly everyone’s face and the boos and chants of “YOU LIED!! YOU LIED!! YOU LIED TO WISCONSIN!!!” were deafening. Before long, the doors opened back up and the Republican Senators exited to hate-filled chants of “SHAME!! SHAME!!” The spineless vermin hurriedly slunk down the back steps and into the night. I still wasn’t exactly sure what had just ensued or how it had gone down in the blink of an eye, but I knew that Wisconsin, its citizens and its Progressive traditions had just been steamrolled. The hard fought battle to save workers’ rights had been lost but the war to save Wisconsin’s soul from the authoritarian rule of nearly unchecked right-wing extremism had only just begun…

Jenna Pope:

I got a tweet about it from Defend Wisconsin. At the time, I was at a grocery story in Milwaukee with a couple of friends. We rushed around, gathered some money for gas, and were on the road within 20 minutes. When we got to the Capitol, the doors were all closed and cops were guarding them. We stood outside chanting “let us in” with thousands of other people. All of a sudden, everybody was rushing towards one door, so we followed. A democratic legislator (not sure which one) had opened up their window and people were jumping through it. After some people got in, a cop came to the window, said “this is a disgrace to the Capitol” and slammed the window shut.
There were still about 200 of us packed right in front of one of the handicapped entrances, and about 30 seconds after the window was shut, one of the doors flew open. A protestor had made a run for the door and opened it up for all of us. We began making out way through the open door, only to be met by a line of officers… but there were too many of us. We managed to push our way through the officers while some people were being attacked by them. I ran past a girl, who was probably only 16 or 17, getting tackled by a cop as a young man stood there yelling “what in the fuck are you doing?!”, and one of my friends was punched in the face by a cop. About 100 of us made it all of the way inside, and were met by thunderous cheers from others who were already inside. I ended up staying over the whole night, even though there were minimal blankets available for all of us. The best part of the night was when the cops started leaving because they gave up. I will never, ever, forget that night. It was the one night that we, the people, had full control over our Capitol.

Anna Ogdenzel Washington:

I was in Fair Trade Coffee. Someone walked in with a megaphone and told everyone what was up. Got up there at maybe 5:30 or so, before people had to start climbing through windows.

Meg Turville-Heitz:

I received the TAA post on FB and was monitoring #wiunion when it came through. I’d opened up a lives stream video on one computer, the Isthmus cover it live page on another and flipped between FB and tweeting … I was already home (30 miles) and with kid here so I spent my time relaying info to friends who were in Madison and looking for the latest news.

Nicole Desautels Schulte:

I was already headed downtown. My friend Jamie Domini called me on my cell phone and said, “Get to the capitol. Now!” I drove my little Mini Cooper as fast as I (safely) could. I think I got there in about four minutes. I got inside quickly — when someone opened a door from the inside.

Ryan Wherley:

The incredible thing is that the couple thousand of us who were locked inside seemed to be under the unspoken agreement that nobody was leaving if the doors weren’t opened back up to the public. I received a text from my friend that probably 10,000 people were chanting “Let us in!!” as we were simultaneously chanting, “Let them in!!” When the cops gave up altogether and the massive wave of thousands came flooding into the Capitol, the roar from those entering the building and those of us welcoming the rest of the crowd in was almost indescribable. Aplogies for sounding hyperbolic, but it was almost as if our own Berlin Wall had come crashing down when the two groups of protesters were united inside!!

Roberta Retrum:

I remember sharing this message all over FB from my hometown in Eagle River…….I couldn’t be there, but I sure could tell others to.

Ben Cashin:

A couple of us at a time up over the top of a second story window into a woman’s bathroom. Lead in by a nurse who I recognized as a friend of some friends from years ago.

Patrick McIntyre:

I was there. It was amazing! The energy from the people as the crowd gathered. The chant of “This is not castle this is the Capital” The rheumatic pounding on the doors. The look of terror in the policeman’s eyes as they looked through the widow and saw what we were feeling. When they finally threw open the doors the stream of people flowing into the building was like an unstoppable river. The rally that took place afterwards was like almost nothing I have seen before. No rehearsal no planning. “There was revolution in the Air!”

Andrea Noeske:

I was with a friend outside the King Street entrance, yelling and pounding. She and I decided to walk around the building and check other entrances. As we passed stairs up to the MLK entrance a guy came out of the doors and motioned us to follow him and to keep quiet. We signaled a few other people, rushed up the stairs and into the building. There were cops running toward the doors we entered and we just scattered into the crowd. I’ve got some grainy video I never uploaded of the cops rushing the ground floor entrances and then the massive retreat as they headed up the stairs to the 4th? floor. Then it’s just people streaming in and yelling. FABULOUS.

Sue Trace:

I remember sitting down to watch the news, dinner on the stove, and hearing what was going to happen. We dropped everything and made the drive back into Madison. At first there were many smaller gatherings, but within an hour it seemed like thousands made it down. Soglin told some of us to go target M&I so we did. Wild, angry night…