How Government Unions Won in Wisconsin by Stacking Judicial Deck

Remember when impassioned protesters stormed a Capitol building and disrupted the democratic process?

No, not the mob that stormed the U.S. Capitol on Jan. 6, 2021. I’m talking about the pro-union one that stormed the Wisconsin state Capitol on Feb. 21, 2011. More than a decade ago, hundreds of protesters charged into and occupied the state Capitol in Madison, fighting against the enactment of Act 10, Wisconsin’s sweeping and transformative labor reforms. 

Nearly 14 years later, government unions and their activist network finally won a legal battle against Act 10. On Monday, a county judge ruled Act 10 unconstitutional, effectively reinstituting the law as it existed before 2011. To do so, the judge had to stiff-arm at least three prior court rulings on the same law involving the same legal principles from the Wisconsin Supreme Court and the U.S. 7th Circuit Court of Appeals.

It’s almost like the unions hand-selected the judge who decided this case. That’s not far off.

In 2020, Wisconsin Gov. Tony Evers appointed Dane County Circuit Judge Jacob Frost, the judge who authored Monday’s decision. In 2018, Evers, a Democrat, defeated then-Wisconsin Gov. Scott Walker—Act 10’s chief architect—with the generous support of government unions inside and outside of Wisconsin.

Frost is on union leaders’ team: In 2011, the judge even signed a petition to recall Walker, one of many failed union-backed efforts to do away with him.

Maybe there’s a problem with Dane County’s judicial-assignment system, or maybe unions got lucky when they drew Frost. Not only is the judge’s ruling out of step with state and federal courts addressing similar legal claims, but it is also a legal rarity: The unions won on an equal-protection argument that had nothing to do with protected classes, like race, gender, or religion.

More broadly, Frost’s ruling blurs the lines between the legislative and judicial branches of government. In ruling that Act 10 violated unions’ due process rights, he concluded there was no “rational basis” for the Wisconsin Legislature to distinguish between government unions generally and unions representing first responders.

This, of course, was all part of the plan. Government union officials have little hope of repealing Act 10 in the legislative branch of government. Act 10 has been a popular reform that has brought widespread prosperity to Wisconsin.

According to the MacIver Institute, a Wisconsin-based think tank that promotes free markets and limited government, Act 10 has already saved taxpayers $31 billion and sparked a remarkable financial turnaround. Another study from the like-minded Wisconsin Institute for Law and Liberty found that eliminating Act 10 would cost school districts $1.6 billion annually.

When Walker assumed office, he inherited a $3.6 billion deficit, primarily due to government employee pensions. Act 10 resolved this crisis without raising taxes.

From a national perspective, Act 10 was transformative, but not radical. Whereas several states refuse to allow collective bargaining in government workplaces, Act 10 took a different approach. It limited the scope of government collective bargaining to wages. Act 10 also introduced accountability measures, like recertification elections, to ensure union leaders served the employees they purport to represent.

Nearly a quarter of Wisconsin government employees still have union representation, whereas 36% of government workers nationally have union representation.

As intended, unionized employees experienced increased levels of self-determination under Act 10. During the 10 years after Act 10, one-third of the state’s government unions failed to win reelection, but the rest secured enough support to keep their status as union representatives. Arguably, they’re doing so in a way more representative of their membership under Act 10.

Instead of slogging through the muck of democracy and the legislative process, union officials went to the courts. More specifically, they filed a complaint in state court with the aim of reaching the Wisconsin Supreme Court, where the liberal justices outnumber the conservatives 4-3.

To ensure it did not reach federal court, including the U.S. Supreme Court, where more responsible judges might preside, the unions carefully crafted their legal argument to raise only state constitutional arguments, effectively safeguarding their claim from federal review and irreconcilable 7th Circuit decisions.

Republicans have appealed, putting a lot of attention on an upcoming Wisconsin Supreme Court election in April. With the help of their national affiliates, unions will surely spend millions to handpick their person for the bench—and they’ve got plenty in the bank.

However this case unfolds, those running the state’s largest government unions unwittingly demonstrate why those unions can be bad for good government. Union leaders’ efforts to short-circuit democracy will be obvious to everyone, and it doesn’t put them in a good light.

Wisconsin’s teachers unions may think they’re winning, but killing effective reforms with a record of success is a good way to lose the war.

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