Wisconsin Union Law Battle Has Republicans Facing New Hurdle
MADISON, Wis. — Wisconsin's Republican leaders appear to be taking the same confident and bullish approach to implementing their divisive collective bargaining law that they took to passing it, suggesting they may ignore a judge's warning there would be consequences for moving ahead while challenges to the law are pending.
Gov. Scott Walker and his allies in the Republican-controlled Legislature believe they are on solid legal ground as they push forth on a course that could deepen an already toxic crisis in the state's government.
Sidestepping Democratic state senators who played hooky to block the law's passage may have angered political opponents, but defying a judge's orders – however imprecise – could put GOP lawmakers and state officials at risk of being found in contempt and could lend weight to accusations the Republicans consider themselves above the law.
"It's dangerous. Arguably they're in contempt of court already," University of Wisconsin law professor Howard Schweber said Wednesday, referring to preparations under way by Walker's administration to begin deducting more money from most public employees' paychecks for health and pension plan costs and to stop deducting union dues.
The deductions, which would amount to an average 8 percent pay cut, would be reflected in the workers' April 21 paychecks, Walker's top aide said Monday.
The Republicans argue the law, which also would strip most public workers of nearly all their collective bargaining rights, took effect last weekend because a state office posted it online. Typically, a law takes effect in Wisconsin the day after it's published in the state's official newspaper upon the order of the secretary of state. But Dane County Circuit Judge Maryann Sumi ordered the secretary of state not to have it published until she could hear arguments in one of several lawsuits challenging the law.
On Tuesday, Sumi reiterated that her order barring action by the secretary of state still was in effect. She threatened to sanction anyone who disobeyed the order, saying she wanted to be "crystal clear" that no further action on its implementation should be taken.
But she didn't rule on the underlying question of whether the law had indeed taken effect. That decision could come during a Friday hearing.
Republican Attorney General J.B. Van Hollen has advised Walker that because Sumi didn't specifically name the administration in her order barring further action on the law, it can proceed with the payroll changes. Justice Department Executive Assistant Steve Means said Wednesday that the state's position had not changed.
Republican Assembly Speaker Jeff Fitzgerald went further, openly questioning the judge's right to rule in the case, saying it "flies in the face of the separation of powers between the three branches of government."
"It's disappointing that a Dane County judge wants to keep interjecting herself into the legislative process with no regard to the state constitution," Fitzgerald said in a statement.
Walker's top aide, Department of Administration Secretary Mike Huebsch, said Tuesday that work on the payroll changes would stop if Sumi ruled the law hadn't taken effect. But on Wednesday, he issued a statement suggesting the administration hadn't decided on a course of action, saying the effects of Sumi's order on efforts to implement the law are "unclear."
Unsurprisingly, the Republicans' position drew a sharp response from their opponents, who said it was indicative of the disregard the GOP leadership has shown throughout the bitter fight over the law, which drew weeks of large pro-union protests in the state capital and prompted the Senate's Democrats to flee to Illinois in an attempt to deny a vote.
"I cannot understand the legal rationale of attorneys who are apparently advising this administration to ignore this order for whatever reason," Democratic Sheboygan County District Attorney Joe DeCecco said Wednesday. "The very fabric of a just society is based on the rule of law. We don't have the option of which law we will obey and we don't have the option of which court order we'll ignore."
The Republicans are walking a political fine line by moving ahead as if the law is in effect while apparently defying the court, said Charles Franklin, a University of Wisconsin-Madison political science professor.
"They naturally want to continue to support their side of the argument, but I think they run the risk of making this look like a claim to being able to do whatever they want regardless," Franklin said. "At some point strength starts to look like arrogance."
Savings under the law – $330 million for the state alone through the higher worker contributions – are designed to help soften more than $1 billion in cuts Walker is proposing under his two-year budget plan to plug a $3.6 billion shortfall.
The state faces a $137 million shortfall for the fiscal year that ends June 30, and Walker was counting on $30 million in savings under the collective bargaining changes to help chip away at that.
Walker released the rest of this year's budget balancing plan Wednesday, drawing support from Democratic leaders, and the Legislature was expected to pass it next week.
Sumi and others have suggested the Legislature could resolve issues over the legality of the collective bargaining law by simply passing it again.
But it wasn't simple the first time around – and it makes sense for the Republicans to first exhaust all their legal challenges because they could win, Franklin said. Starting from scratch could lead to another round of protests and filibusters, and could put more pressure on Senate Republicans, eight of whom are facing recall efforts because of their support for the law.
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SCOTT BAUER 03/30/11 10:12 PM ET Associated Press