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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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Jan 28, 2013 06:36 am
 Posted by  Anonymous

“Act 10 simply subsidizes the speech of one group, while refraining from doing so for another,” Judge Flaum wrote, referring to public safety workers and general public employees. “Nothing in the Constitution requires the government to subsidize all speech equally.” Its interesting that a judge(for accuracy sake a conservative judge) believes the constitution of a state does not have to be applied equally to all its citizens. SO if the state government wants to pay for one political parties ads that would be okay? That doesn't seem to make sense nor does it seem to follow the spirit of our democracy.

Jan 30, 2013 07:14 pm
 Posted by  Anonymous

This ruling was based on the federal constitution and all three judges on the panel agreed the Equal Protection Clause operates this way, using the rational basis standard.

The one area I know the government cannot play favorites is under the Establishment Clause, where one religion cannot be favored over another. Think of the Equal Protection clause emphasizing the word "protection". The government has to protect everyone equally but does not have to treat them identically after that. So, every union gets the right to free speech. Once provided that right, every union would have a hard time collecting dues or getting its message out. But legally, as long as the state can show a rational basis for helping one union over another, the subsidy is allowed.

Regarding the points you raise, about the constitution of the state or spirit of democracy: first, the state courts could look at this differently but I doubt it. I think the analysis remains the same. Plus, the same issues are not being challenged at the state level. The decision by Judge Colas was based on a different theory and we'll see how the state Court of Appeals responds to it.

Second, just because the courts say it is not illegal does not mean the outcome is right or fair. This decision simply says the state did not act illegally and that it chose one possible method out of several reasonable ones. If people do not think that is how the state should treat unions, then that is not for the courts to fix. But rather, it should be changed through the legislature and voting process. So all the doors for change are not closed.

Nilesh Patel

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About This Blog

 Diane Hamilton, PCC, SPHR, is the owner and founder of Calibra, a coaching and consulting firm focused on maximizing leadership potential. Nilesh Patel is the principal attorney of the Mahadev Law Group, LLC, which focuses on human resources and employment law issues for organizations. He can be reached at Both bloggers are members of Wisconsin SHRM, which is dedicated to being the state leader in HR management and the premier source for HR expertise and resources. More information can be found at You can follow the WI SHRM blog at



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