The struggle over Wisconsin governor Scott Walker’s bid to deny collective bargaining rights to most of the state’s public sector employees isn’t quite over yet. Last week, state judge Juan Colas threw out the law as it applied to most of the covered employees. The crucial question at this point is whether this opinion has any chance of standing up on appeal. Unfortunately, this seems unlikely to me.
The core of Judge Colas’s opinion is a holding that the Wisconsin law violates the free association and equal protection rights of the state constitution (which, according to Judge Colas’s opinion, offers protections similar to those in the federal Constitution.) According to Judge Colas, the state violated the rights of the affected workers by treating different classes of workers differently based on whether they are represented by a labor organization or not. (Colas rejected the agrument that the bill was unconstitutional because it violated the “open meetings” provision of the state constitution.)
The crucial question here is whether the legislation is seen as an economic regulation or whether labor organizing is sign primarily as a protected act of freedom of speech and free association. If the law is viewed in the former light, than the law is almost certainly constitutional. It is well-settled under federal law that states can make all but the most irrational distinctions between groups when engaging in ordinary regulation of the economy, and Judge Colas does not suggest that Wisconsin law affords greater protection. If, one the other hand, the state classification is seen as burdening free speech and free association rights, the classifications must withstand “strict scrutiny.” Since, as Judge Colas notes, the state did not even offer an argument that the classification could survive strict scrutiny, once he found that the law was a burden on the free speech and association rights of unionized public sector workers he was logically compelled to find the law unconstitutional.
The logic is not, on its face, entirely unreasonable. But it is a stretch — at one point, Colas implies that his analysis went beyond the plaintiffs are asking for. As Colas concedes at one point, “it is undisputed that there is no right to collective bargaining.” It is extremely likely that the much more conservative higher appellate court in Wisconsin will see the Walker bill as an economic regulation and uphold the classifications on that basis. Colas isn’t wrong to suggest that the right to bargain collectively should be seen as a fundamental right of association, but this is not the current state of American law.
The rights of labor have rarely found vindication in American courts. Unfortunately, this case is unlikely to be an exception after higher courts have weighed in. But Judge Colas’s opinion offers a view of what a world in which the rights of labor are taken as seriously as the interests of corporations would look like.
