Wisconsin Judge Declares State’s Right-to-Work Law Unconstitutional

Published May 19, 2016

A Wisconsin county judge has ruled a state right-to-work law violates labor unions’ legal entitlement to money earned by public workers.

The lawsuit was filed by labor unions looking to overturn Wisconsin’s right-to-work law, which was signed by Gov. Scott Walker (R) in March 2015.

In his April decision, Dane County Circuit Court Judge William Foust, appointed to the court by Gov. Tommy Thompson (R) in 1997, said the state’s prohibition against compulsory membership in labor unions could decrease unions’ budgets and that union revenue, including dues collected from workers against their will, belongs to the union.

Foust says Wisconsin’s right-to-work law represents an illegal seizure of private property by the government.

Playing the Victim Card

Rick Esenberg, the president and general counsel of the Wisconsin Institute for Law and Liberty, a nonprofit public-interest law firm, says unions benefit from unfair and unequal treatment under federal law, making right-to-work legislation necessary to put workers and union bosses on equal footing.

“Unions are afforded very valuable privileges under the National Labor Relations Act,” Esenberg said. “They have advantages in organizing and protection in organizing. They can become the exclusive bargaining representative for all the workers so that there is no competition. If you’re in the bargaining unit and you want someone else to bargain for you, you can’t. You have to go along with the exclusive representative that was chosen.

“[Under right to work,] if a worker does not like the web of legal responsibilities and privileges that the statute creates, they are free to walk away from it,” Esenberg said.

“[Unions] do not have to represent employees in a bargaining unit where they don’t think that can persuade them,” Esenberg said.

Constitutional Confidence

Chris Rochester, communications director for the John K. MacIver Institute for Public Policy, says the ruling will probably be overturned by a higher court.

“We have spoken with the attorney general recently, and Gov. Walker has spoken about this issue,” Rochester said. “They’re deciding which courts they will take the case to. I think they may go straight to the Wisconsin Supreme Court, out of confidence that right to work is constitutional.”

‘Tons of Precedent’

Rochester says Foust’s ruling ignores well-established legal precedents.

“Right to work has tons of precedent to show that this law will make it through,” Rochester said. “The issue is, what will happen in the meantime? Are workers going to have to make that decision to start paying dues again against their will, out of fear of being fired? That’s the unfortunate confusion that results in the meantime until a final decision comes down.”

Luke Karnick ([email protected]) writes from Indianapolis, Indiana.