Jan 22, 201308:12 AMForward HR
with Diane Hamilton and Nilesh Patel
A closer look at the 7th Circuit Court’s Act 10 ruling
(page 2 of 2)
First Amendment challenge
The First Amendment challenge generated the most interesting discussion from the court and resulted in a dissent by Judge Hamilton. Joining a union and paying dues to fund union advocacy are recognized expressions of speech and association under the First Amendment. Act 10 made union dues payments voluntary for general workers, while keeping deductions mandatory for public safety workers.
The general worker unions claimed that by taking away their ability to collect dues via payroll deductions, the state set up an illegal barrier that would result in lost money and diminished speech. By restricting access for general workers to the most efficient means of dues collection, the state was favoring the speech of public safety unions over general worker unions. Lastly, the unions claimed Act 10 was engaging in speaker and viewpoint discrimination by burdening the speech of those unions that did not support Scott Walker’s candidacy for governor.
The majority of the panel did not agree with the unions. First, preferential access to payroll deductions is not government interference with speech but rather a subsidy of speech. Second, where the government is not creating the barrier to speech, it is allowed to subsidize speech based on the identity of the speaker, as long as the government does not make its choices based on the content or viewpoint of the speaker.
The court found that Act 10’s language is viewpoint neutral because it does not tie access to the payroll system based on a particular viewpoint. The court rejected three arguments asking it to look to the motives or effects of Act 10. Indeed, the debate between the majority and the dissent was about whether the court should examine motives or events when the circumstances seem suspicious.
The first argument relied on the coincidence of continued payroll deductions for unions that endorsed candidate Scott Walker. The court was not persuaded because unions that did not endorse Scott Walker are included as public safety workers.
The second argument claimed that Act 10 was a pretext for viewpoint discrimination, because several occupations involved in public safety duties are classified as general workers. The court rejected this argument because categories of speakers may be excluded as long as it is not on the basis of what they are saying.
The last argument tried to show viewpoint discrimination based on Sen. Scott Fitzgerald’s partisan comments that if the unions did not have money, it would be difficult for President Obama to win in Wisconsin. As damaging and viewpoint discriminatory as those statements sound, the court would not attribute the motives of one legislator to the entire legislative body.
The 7th Circuit’s denial of all of the claims means that if the unions want to continue their challenge, they will have to ask the entire 7th Circuit to rehear the case or appeal to the U.S. Supreme Court. Two state level challenges remain arguing violations of the Wisconsin Constitution. I do not expect that this decision will affect those claims.
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