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Thirteen years after Wisconsin’s Act 10 legislation took effect, a law which greatly reduced the influence of unions in the public labor sector and significantly reduced average salary and benefits for most government employees, the future of that law is in question.
A coalition of labor groups and individuals, buoyed by the election of Justice Janet Protasiewicz to the Wisconsin Supreme Court last year which created a liberal majority on the court, filed a lawsuit late November in Dane County which seeks to have Act 10 overturned on constitutional grounds. It’s expected that any decision by a lower court in the case will eventually be appealed to the high court by the losing side.
During her campaign, Protasiewicz said she disagreed with the Supreme Court’s decision a decade earlier which upheld the law. “I agree with the dissent in that case, where the authors said Act 10 is unconstitutional,” she said. Protasiewicz added she would consider recusing herself if the issue arose again because she joined a protest march against the law and signed a petition to recall then-Governor Scott Walker which was spurred by opposition to Act 10. Conservative Justice Brian Hagedorn, who made public statements in support of Act 10 during his campaign, has not said if he would consider recusing himself.
In their complaint, the plaintiffs argue that the law unfairly violates the equal protection clause of the Wisconsin Constitution by applying conditions which restricted collective bargaining, union certification and automatic payroll deductions of union dues only to certain employees.
Participants in the lawsuit contend that, when then-Republican Governor Scott Walker and GOP legislative leaders divided public workers into separate categories of “public safety” employees and “general” employees under Act 10, it codified what Beaver Dam school district teacher Matthew Ziebarth calls a “fundamentally unfair” public employment landscape.
Ziebarth is listed as a plaintiff in the lawsuit along with the Abbotsford Education Association; Beaver Dam Education Association; American Federation of State, County, and Municipal Employees (AFSCME) Local 47; AFSCME Local 1215 and its President, Ben Gruber; Service Employees International Union (SEIU) and its Wisconsin vice president, Wayne Rasmussen; Wisconsin Teaching Assistants’ Association Local 3220; and the International Brotherhood of Teamsters Local 695.
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Defendants are listed as the Wisconsin Employment Relations Commission and its Chair, James Daley; the Department of Administration and its secretary, Kathy Blumenfeld; the Division of Personnel Management and its administrator, Jen Flogel.
Political Retribution
The lawsuit highlights the fact that five public employee unions which supported Walker’s successful 2010 election bid, including those representing some police officers and firefighters, were exempted from the law while those which didn’t endorse Walker, including those representing teachers, were not. In addition, it notes that unions representing Capitol Police, University of Wisconsin Police, conservation wardens and state parole and probation officers, whose unions also did not endorse Walker, were not included in the “public safety” category even though those employees, too, serve in a public safety capacity. The suit alleges that Act 10 illegally amounted to “political retribution.”
The lawsuit contends that the law forced undue hardship on the affected labor unions by establishing a new standard for union certification, one which applies only to those targeted by Act 10. It requires an annual certification vote, and it changed the threshold for certification by requiring a 51 percent majority vote of all members, not just a majority of the votes which are cast on the question. Under the unique requirement, members who do not cast ballots are counted as “no” votes.
The lawsuit further alleges that the state created an unlawful barrier to those unions’ ability to collect union dues by making it illegal for unions to require payroll deductions for it, even when an employee specifically requests such a deduction. The lawsuit notes that such payroll deductions are not barred for the newly created class of “public safety” employees, the ones which are represented by unions that supported Walker.
How Act 10 Became Law
Here, we’ll look at the arguments underpinning the lawsuit but also at the effects the law has had on Wisconsin. First, however, a look back at how Act 10 became law in the midst of rancorous debate, the largest public protests in state history and even a defection of Democratic lawmakers from the state in an attempt to stop the law from passage by the Republican legislative majority.
In 2010, when Walker took office, the state was facing a projected $3.6 billion budget shortfall. Walker frequently used rhetoric which attacked public sector unions, scapegoating them as being the main contributor to the state’s financial woes by demanding and getting what he called “exorbitant” salary and benefit packages through collective bargaining of contracts. Early in 2011, he proposed Act 10, also known as the Wisconsin Budget Repair Bill, to the legislature. It came as a surprise to public employees and their unions.
Walker and his Republican allies targeted collective bargaining, compensation, retirement, health insurance and sick leave for public employees. The bill stripped the rights of most of the affected unions to bargain for anything except base wages and limited increases to the rate of inflation. In addition to restrictions on teachers and other public employee unions, it entirely removed collective bargaining rights for home health care workers under the Medicaid program, childcare workers, University of Wisconsin faculty and academic staff and also University of Wisconsin Hospitals and Clinics (UWHC) Board and Authority employees. It exempted LTEs (limited term employees) from inclusion in the state’s health insurance program and the Wisconsin Retirement System.
Act 10 also required affected employees to begin contributing 50 percent of the amount which had formerly been entirely paid by the state toward retirement benefits and doubled the amount of employee contributions for health care insurance premiums. Studies show those moves essentially resulted in an 8.5 percent reduction in employee take-home pay.
When Walker, in his own words, “dropped the bomb” on public sector union workers, it touched off a firestorm of opposition. Unions organized massive protests in and around the Capitol Building in Madison which drew tens of thousands of people who demonstrated for weeks. Republicans referred to the protesters as “angry mobs” and lobbed mostly evidence-free accusations of violence and intimidation on the part of demonstrators. Right wing media outlets echoed and amplified those claims. In one instance, Fox News even showed footage of what it said was violence in the crowds which was quickly denounced as false. The video it used was actually taken from a separate and unrelated protest in Sacramento. Astute viewers outed the network after noticing that the footage it used included palm trees in the background which, obviously, are not part of the landscape of Madison, Wisconsin.
Deny the Quorum
In February of 2011, the state assembly heard more than 60 hours of debate and testimony on the bill, most of it in opposition, before passing it 51-17 with 28 representatives not voting. Its fate in the Senate, where even some Republicans had questioned the practical and political wisdom of supporting such wide ranging, controversial and punitive legislation, became even more entangled. What ensued was perhaps the wildest moment among all of the acrimonious activity surrounding Act 10.
That was when 14 Democratic state senators fled the state, most of them encamping at a hotel in Rockford, Illinois, in an attempt to deny Republicans the quorum they needed in order to vote on the bill. The “Fab 14,” as they were called, stayed out of the state for the better part of a month in defiance of threats by Walker to have state troopers arrest them and escort them back to the Capitol. Eventually, GOP Senate leaders found a quorum work around by removing parts of the bill which required the expenditure of tax dollars so they could pass Act 10 without any of the recalcitrant Democrats present. It sailed through on an 18-1 vote without Democratic participation.
Then the legal challenges began. Dane County Executive Kathleen Falk and District Attorney Ismael Ozanne each filed lawsuits against the law, alleging that it was passed in violation of the state’s 24-hour public notice requirement. In late March, a judge agreed, putting a stay on enactment of Act 10. Republican Attorney General J. B. Van Hollen then announced an appeal of the ruling. Meanwhile, the Legislative Reference Bureau bypassed the Secretary of State’s office and published the new law. Republicans declared it to be law and said they would enforce its provisions regardless of the judicial stay. That June, the conservative majority in the Wisconsin Supreme Court overruled the lower court’s stay.
Voters who were incensed by the actions of Walker and Republican legislators forced a recall election in 2012 which targeted the governor and several legislators. Walker survived the recall by defeating the Democratic Mayor of Milwaukee, Tom Barrett. His margin of victory was greater than that by which he had gained the office by besting Barrett in the gubernatorial election two years earlier.
There were further legal challenges over the following two years that resulted in rulings which struck down certain elements in the law. But they were all overturned on appeal and finally, more than three years after it had been introduced, the state’s Supreme Court upheld all aspects of Act 10 on July 31, 2014.
Education Exodus
The weakening of union bargaining power caused an almost immediate exodus of teachers from their jobs. In the two years following enactment of Act 10, the annual rate of teachers who left the profession entirely jumped from five percent to nine percent. Many veteran teachers with significant seniority opted for early retirement before their union contracts expired and before they would then be required to contribute vastly more to their retirement fund and health insurance premiums. However, during the course of the 13 years during which the law has been in effect, the rate of teacher exodus eventually leveled off and has returned to pre-Act 10 levels.
Act 10 took what had been a mostly uniform salary structure across school districts and instead allowed for a patchwork of compensation systems. Some districts retained a mostly rigid system based on seniority while others moved to systems which rewarded teachers based on measures of effectiveness and other factors. It caused a huge increase in the number of teachers who left their districts in search of better pay. One major study found that the rate of cross-district movement more than doubled. But, while Act 10 allowed teachers more freedom and flexibility, it made it more difficult for poorer districts to retain them. Poorer districts and those which chose to devalue seniority in their salary structures saw substantial drops in the average experience level of their teachers.
Disparate salary structures created by Act 10 and the higher rates of teacher changeover it effected seems to have negatively affected student achievement scores in some school districts. In the five years following Act 10, wealthier districts which were able to afford to pay teachers more and which enacted new salary systems reported an average of five percent better test scores than poorer districts which had not changed their salary structures to allow for higher teacher compensation.
Matthew Ziebarth, in an interview with Shepherd Express, said Act 10 created a “disincentive” for teachers to remain in a given district because they lost the certainty that a uniform salary structure provided. “Sure, you can move to a higher paying district but, with so many different salary structures out there and the ability of a district to arbitrarily change them, you lose longevity and the assurance that the salary and benefits you expected cannot be arbitrarily stripped away,” he said. “The law has a built-in demoralization factor that harms both teachers and students.”
According to Ziebarth, another harmful effect of the law is that it removes transparency from the budgeting process because teachers, by virtue of their inability to negotiate all aspects of their contracts, can no longer help to ensure that district resources are being used effectively. “School boards and administrators can make budget decisions without anyone really knowing what’s going on,” he said. “By cutting teachers out of the process, it cut everybody out of it, including taxpayers. Teachers used to serve as a kind of check on things.”
Ziebarth also said Act 10 violates the constitutional protection of due process. “It stripped away any ability for us to appeal what we believe to be unfair competition or work rules to a higher authority such as a court,” he said. “Before Act 10 there was an appeal process in which we could request mediation and, if the request was denied, it went to arbitration. Now, even if a school board agrees to mediation, it doesn’t have to abide by it. They are the sole deciders, and their decision is absolutely final. That was unheard of, and it goes against what is a basic American principle that a government body cannot be the final arbiter in its own interest. Not being allowed to seek redress from it is fundamentally unfair and violates the 14th Amendment of the Constitution.”
The Republican Speaker of the Assembly, Robin Vos, has said repeal of Act 10 would “bankrupt” school districts and the state but Ziebarth says it’s a disingenuous argument. “He uses scary words like that, but it seemingly wasn’t a problem we faced before Act 10 came along,” Ziebarth said. “What repeal would do is that it would require legislators to actually fund education adequately. Since Act 10, they haven’t done that. Instead, they put the solution to their budget failures on the backs of unions.”
Before Act 10, per pupil spending in Wisconsin was $1100 higher than the national average. By 2018, the state was spending $327 less than the national average.
Ziebarth said repeal of the law by the courts would “unbind the hands of everyone, whether it’s administrators, school boards, teachers or community members, and give us, especially taxpayers, the ability to make better educational opportunities for kids.”
