The court’s conservative justices are so worried about agency overreach that they’re threatening the strongest...
Last February at the height of the massive protests and the three-week occupation of the Wisconsin State Capitol, Ian Murphy made a prank phone call to Governor Scott Walker posing as David Koch. In that call, Walker characterizes the introduction of the Budget Repair Bill as “dropping the bomb.” Thus began what Democratic Party candidate for Governor and Milwaukee Mayor Tom Barrett calls Walker’s “ideological civil war.”
Barrett was given a potent piece of ammunition with which to fight back on Thursday as a clip from Brad Lichtenstein’s soon-to-be-released documentary, As Goes Janesville, was released. It shows Walker letting billionaire campaign donor Diane Hendricks in on his strategy to deal with labor unions. By Friday morning the video had been taken up by the Barrett campaign, and hundreds of media outlets blasted it out across the country.
In the clip taken nearly a month before the public unveiling of the infamous Budget Repair Bill that launched a popular uprising, Hendricks asks Walker, “Any chance we'll ever get to be a completely red state and work on these unions - and become a right-to-work (state)? What can we do to help you?”
Walker replied, “Well, we're going to start in a couple weeks with our budget adjustment bill. The first step is, we're going to deal with collective bargaining for all public employee unions, because you use divide and conquer.”
Divide and conquer.
While opponents have consistently accused Walker and his loyal GOP henchmen in the legislature and state administrative agencies of using this tactic to amass political power, Walker has always denied it, claiming his policies and actions are geared toward fiscal responsibility and protecting taxpayers. But the video lays bare the raw political calculation behind the introduction of this and many other bills passed over Walker’s tenure as governor, and it comes straight from the horse’s mouth.
The revelation will not only boost Barrett’s bid to unseat Walker, it may also serve as evidence in three pending court cases that seek to completely overturn Act 10.
At the same time the divide and conquer video was igniting social networks on Thursday night, the Madison chapter of the National Lawyers Guild held an event called, “What We Can Learn From Act 10: A legal and class analysis of the Budget Bill.” The featured speakers were Brian Austin, Madison Police officer and founder of Cops for Labor, and Tim Hawks, lead counsel in one of the court challenges to the law that repealed all meaningful collective bargaining for most public employees.
In addition to the 2011 uprising and the unprecedented number of recall elections as a response to the law and the way it was passed, four court cases have been brought to overturn it.
The first one challenged the process by which the law was passed, alleging a violation of state open meetings laws. That ended in the injunction on the law ordered by Dane County Circuit Court Judge Maryann Sumi being overturned by the Wisconsin Supreme Court. The 4-3 decision held that the Legislature is basically above the law and can choose to abide or not abide by its own rules and statutes governing open meetings. The day before the decision was released, Justice David Prosser allegedly choked Justice Ann Walsh Bradley in an argument about the timing of the decision. Republican legislative leaders were pushing for its release ahead of their budget deliberations.
In a related development, on Friday the Wisconsin Supreme Court decided 4-3 to go against a unanimous recommendation to reappoint John R. Dawson as Chair of the Wisconsin Judicial Commission, a non-partisan body that deals with ethics complaints against judges. Dawson was overseeing Bradley’s complaint against Prosser for the alleged choking incident.
In a letter to Dawson that expresses the dissenting opinion of three Justices (including Bradley), Chief Justice Shirley Abrahamson said, “News stories indicate that the Commission presently may have requests to investigate possible misconduct by one or more Justices. Under these circumstances your reappointment by the court would have promoted public confidence in the integrity of the Judicial Commission and the integrity and impartiality of the Supreme Court. Unfortunately, it is not meant to be.”
Another case has been brought in Dane County Circuit Court by Madison Teachers Incorporated and Public Employees Local 61, AFL-CIO (Local 61) from Milwaukee claiming the law violates municipal and school district employees’ rights to freedom of association and equal protection of the laws guaranteed by the Wisconsin Constitution. That case also asserts that the bill was improperly before the legislature under the provisions of the special session called for January and February, 2011, and that it violates the “home rule” provision of Wisconsin’s Constitution which allows the City of Milwaukee to set its own rules for how it wants to treat its employees. That case has not yet been decided.
Two other cases have been brought in federal court, beyond the political intrigue of the impressively dysfunctional Wisconsin Court system. Tim Hawks is among a group of lawyers who represent Wisconsin Education Association Council, AFSCME District Councils 24, 40 and 48, SEIU Healthcare, American Federation of Teachers and the Wisconsin State AFL-CIO. Their case alleged that the division of state employees into two classes -- “general employees” and “public safety employees” -- violated the equal protection rights of those whose collective bargaining rights were severely diminished by Act 10.
The unions argued that defining a select group of police officers, firefighters and bus drivers as “public safety employees” who are exempt from the draconian law was itself arbitrary. Entire state police forces like the Capitol Police, University Police and certain state firefighters fall outside the “public safety employees” category and are subject to Act 10. Hawks’ legal team argued that the excluded police and firefighting forces are members of AFSCME, which opposed the election of Scott Walker for governor in 2010, and the act of exclusion was political punishment.
They also specifically argued that elimination of automatic payroll deduction for dues payment and the requirement for annual recertification of unions by a 51% vote of members eligible to join a union also constituted punishment by Scott Walker against his political enemies and violated their equal protection rights.
On March 30, 2012, Judge William M. Conley agreed with the unions on those two points, but said that the state’s argument that they exempted public safety employees from the law because of the threat to public safety should those employees go on strike met the “rational basis” test under equal protection law and upheld the bulk of the provisions of Act 10.
The state made a motion for a stay of the order reinstating decertified unions and automatic dues deduction pending appeal. The stay was denied in part, but Judge Conley ruled that unions that had been decertified during the course of the past year would not be automatically reinstated until after the appeal is decided. In an ironic twist of fate, the state’s choice to appeal Conley’s decision opens up a new arena for arguments based on evidence of political motives provided by the divide and conquer video.
That video could also serve as evidence for the other case brought in federal court by Dane County unions Laborers Local 236, Firefighters Local 311, and AFSCME Local 60, alleging that Act 10 imposes an impermissible burden on municipal employees’ ability to exercise their constitutional right to associate and assemble, and to express their views in concert with one another, and to petition their State and local governments regarding matters that are of mutual concern to them.
That case is also before Judge Conley, but is stuck in the discovery phase pending a ruling on whether the plaintiffs have sufficiently shown a first amendment claim. According to attorney Bruce Ehlke whose firm represents the plaintiffs, “Because fundamental rights are at stake, the government has to have a compelling governmental interest to impair them, and then act in a way that has the least impact possible on the exercise of fundamental rights.”
This is a much higher standard than the “rational basis” test applied in the WEAC lawsuit. The presence of the divide and conquer video will make it much more difficult for the state’s legal defense team to prove a compelling governmental interest when Walker’s interest was so clearly political.
A scheduling hearing in that case is set for the end of May, a week before the recall election of Scott Walker, Lt. Governor Rebecca Kleefisch and four Republican Senators.
As if all this legal and political uncertainty weren’t enough, there still remains the John Doe investigation into Walker’s tenure as Milwaukee County Executive. The spiral of the investigation has been closing in on Walker himself, and sources close to the investigation speculate that more indictments may be issued soon after the conclusion of the recall election. That kind of bomb has the potential to significantly change the course of Walker’s war.
Rebecca Kemble is an Anthropologist who studied decolonization in Kenya. She serves on the Board of the US Federation of Worker Cooperatives and is a founding member of the Wisconsin Citizens Media Cooperative.