When Chief Justice John Roberts ruled the Patient Protection and Affordable Care Act’s mandate provision could be construed as a tax—even after President Obama denied that the mandate was a tax, and even after Congress explicitly removed all language that would indicate that the mandate could be construed as a tax—I was, like most Americans who actually bothered to read the decision, baffled. Roberts’ use of doublespeak to redefine the word “penalty” by denying its dictionary implications of violation of law was remarkable.
This past week may have brought about an eerie sense of déjà vu to those paying attention to local news. Judge Juan Colas of Dane County overturned Gov. Scott Walker’s Act 10 bill on constitutional grounds, and Colas’ logical reasoning is reminiscent of Roberts’. Two opinion articles written for the Daily Cardinal already discussed this topic, but neither of them discussed Colas’ ruling. I find that a fact-based approach is usually the best way to start a discussion, so I will focus on the language in the ruling itself. I would encourage you to then go back and read the two articles “Walker cannot play nice with others” and “Judge Juan Colas should stay his repeal” which were written by my less-than-conservative peers, so that you can make a judgment call for yourself.
Judge Colas broke down the decision into four rulings, the most relevant being that he found certain sections of Act 10 violate “free speech, association and equal protection.” Namely, “persons, even if they have no right to a legislatively conferred benefit, cannot be required as a condition of receiving that benefit, to surrender constitutional rights...”
Colas essentially makes the argument that because the government offers collective bargaining as a benefit to some employees, they cannot be required to give up a constitutional right to take advantage of that benefit. Colas states that Walker’s Act 10 “impose[s] significant and burdensome restrictions on employees who choose to associate in a labor organization.” He is referring to the fact that those who choose to join a public union can only bargain for cost of living pay increases, while non-union members do not have this restriction. The right to “free speech” was thus impaired on individuals that chose to join unions, and so, argues Colas, Act 10 is invalid.
Colas goes on to argue that Walker’s Act 10 discriminates against people of a certain socieoeconomic situation, saying that those who voluntarily choose to join unions comprise a separate situation of people that are being unfairly treated. He states that the law is unconstitutional under the Equal Protection Clause using this line of reasoning.
Let me answer each of Colas’ two findings in turn. First, Colas’ argument about the imposition of significant and burdensome speech restrictions on those who choose to be unionized is invalid because those speech forms are a function of the conferred collective bargaining benefit, not a function of speech under the constitution. An individual has the right to associate and to bargain with an employer under the constitution, but that same individual may not have the right to bargain within the confines of some externally-granted benefit, such as union membership.
Indeed, case law has held consistently that collective bargaining as a form of speech is not a constitutional right. Bargaining as a form of speech is protected, but bargaining within the confines of a conferred privilege, such as union membership, is not. This is a complex idea to grapple with, so let me quote the 1979 U.S. Supreme Court case Smith v. Arkansas State Highway Employees, Local 1315. It states, “The First Amendment right to associate and to advocate provides no guarantee that a speech will persuade or that advocacy will be effective. The public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so. But the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.” The Illinois Policy Institute references this case in its analysis, which predicts Colas’ ruling will be overturned.
Colas’ second line of reasoning regarding equal protection is just silly on its face. By his rationale, a choice an individual makes can determine what “class” he or she falls into. One could easily extend Colas’ arguments and make the case that because we all make different decisions, any law that affects us is class discriminatory. This is clearly ridiculous and would render all laws void.
I believe in the end the Wisconsin Supreme Court will once again uphold Act 10, overturning Colas. These persistent attacks will most likely continue into infinity and beyond. Thus is politics.
Steven Nemcek is a junior majoring in biochemistry and political science. Send all feedback to opinion@dailycardinal.com.
