Does Wisconsin’s Right-to-Work Law Expose a Fatal Flaw?

(Photo: AP/Paul Sancya)

Wisconsin Governor Scott Walker speaks during a campaign event for Senator Ted Cruz on April 3, 2016, in Green Bay, Wisconsin.

Welcome to The American Prospect's weekly roundup highlighting the best reporting and latest developments in the labor movement.

(Compiled by Justin Miller—Edited by Harold Meyerson)

A Crack in the Right’s Armor

For many in the labor movement, it was hard not to take pleasure in Friday’s news that Wisconsin Governor Scott Walker’s right-to-work law was found by a judge to be in violation of the state’s constitution.

The ruling was a small bright spot for a union movement that’s been subjected to the governor’s anti-worker crusade for more than five years. It was also a potential victory for the national labor movement, which in recent years has seen right-to-work laws pass at a startling pace in states that were once formidable union strongholds.

The judge sided with Wisconsin labor unions that had argued that the right-to-work law violated the state’s prohibition of the “taking of private property without just compensation” because they were now forced to provide services like collective bargaining and representation in grievance proceedings to workers who weren’t paying for those services.

But labor’s victory, as so often is the case, is likely to be fleeting. The state attorney general quickly announced his intention to expedite the appeals process and bring the case before the Wisconsin Supreme Court, which has a 5–2 conservative majority, and is widely expected to overturn the lower court’s ruling.

Some labor lawyers, though, think that the Wisconsin judge’s decision, however brief its cheese-state shelf life may be, holds potential if taken to national level. As Politico’s Morning Shift writes, the so-called “takings” argument could provide unions legal ammunition against some of the country’s right-to-work laws. The U.S. Constitution’s Fifth Amendment and most states have “takings” clauses.

Challenging right-to-work in the states that have “takings” clauses will require labor unions to dedicate substantial legal resources to go up against Republican attorneys general, and as Politico notes, there are few instances of this legal strategy being used. But in a dissent to the ruling opinion upholding Indiana’s right-to-work law, Seventh Circuit appeals chief Diane Wood gave credence to the idea. “We would be shocked by a rule providing that, as a condition of receiving a business license in a city, a company selling gasoline had to give it away to any customer who did not want to pay,” she wrote.  

As right-to-work laws advance in more union-dense states, legal strategies enabling unions to fight back may seem tempting. “It does very well to illustrate what is inequitable about right-to-work laws,” Craig Becker, the AFL-CIO’s general counsel, tells the Prospect.

Indeed, a similar case is also pending in Idaho, which passed its right-to-work law in 1985. However, the labor movement as a whole may be hesitant to take up this legal strategy more broadly because, ironically, building an anti-right-to-work precedent on the takings clause could actually bolster business interests that invoke that clause to overturn government regulations.

As Scott Lemieux argues on Lawyers, Guns & Money, Wisconsin Judge William Foust, who ruled against the right-to-work law, wrongly based his ruling on a “regulatory takings” standard. “Regulations do not become takings merely because they impose economic burdens or have allegedly suboptimal policy effects,” Lemieux writes. “Foust’s argument that the right-to-work statute meets this threshold is exceedingly unpersuasive.”

“To be frank, Foust is using a crank libertarian argument for progressive ends here,” he continues. “Not only does this standard of regulatory taking have no plausible basis, the policy effects of this would be massively pernicious if applied with any frequency.”

Paul Secunda, a Marquette University labor lawyer and proponent of the “takings” theory as a way to overturn right-to-work laws, says those instances would be few and far between.

“If some libertarian wanted to prove that some progressive regulation amounted to the taking of property, they would have to show that it happens as directly as the right-to-work law, and that doesn’t happen a lot,” Secunda tells the Prospect, mirroring Wood’s argument that it would be like demanding free gas from a business. 

The quickest way for this strategy to gain traction, Secunda says, would be for unions to lodge a challenge against West Virginia’s brand new right-to-work law, which could ultimately be brought before the Fourth Circuit, a far more liberal court than the Seventh, which upheld Indiana’s right-to-work law. If the Fourth Circuit overturns the law, going against the Seventh Circuit, the Supreme Court could bring the conflicting rulings up for review. With a liberal majority lying in wait for the confirmation of Merrick Garland or of the appointee of President Obama’s likely Democratic successor, the Court could potentially overturn all states’ right-to-work laws.

Many chips must fall in place, however, before that could happen. And it remains to be seen whether the labor movement, and the left more broadly, would even want that legal attack to advance.

Tangentially, the fact that the challenge will likely soon die in Wisconsin also illustrates how the flood of corporate money into judicial elections can pay dividends when state courts side with business over workers, consumers, and the public.


New York Unions’ Political Power

Next Tuesday, the presidential primaries will reach New York, the state that—at nearly 25 percent—has the highest union density in the nation. With that density comes a lot of powerful unions that will be instrumental in driving turnout, and ultimately in helping determine who wins the Democratic primary between Bernie Sanders and Hillary Clinton.

The story has played out before in other union-heavy states like Michigan, Illinois, and Missouri, where Hillary Clinton has enjoyed the GOTV machine that the major labor unions have set in motion on her behalf. Meanwhile, Bernie Sanders’s campaign relies on organizing from the grassroots rank and file, some progressive organizations, and a handful of supportive labor unions like the National Nurses United and the Communications Workers of America.

However, the dynamics in New York will be a bit different for each candidate. Clinton is on her political home-turf, where as U.S. senator for New York she developed a strong relationship with most of the heavyweight union locals in the state. Those relationships could help her win New York City. Meanwhile, Sanders has earned the support of New York’s Working Families Party, a burgeoning progressive party that has become influential by wielding the best voter-turnout operation in the city and state.

On the other hand, the union turnout machine has so far not translated to a clear boost for Clinton. She has failed to earn more than 50 percent of union voters in most states where exit polling has tracked such numbers, and only in one of those states—Wisconsin—was her percentage of support from union households greater than her overall percentage of support. In New York—her backyard, but also Sanders’s ancestral stomping grounds—things could be different. 

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