Foust’s Right-To-Work Folly

Dane County judge’s decision is a gesture with no merit

April 12, 2016

by James Wigderson
Special Guest Perspective for the MacIver Institute

When late on Friday afternoon the news came out that Judge William Foust in Dane County had struck down Wisconsin’s Right-to-Work law, there was a collective shrug. Right-to-Work laws have survived every challenge, and Foust’s decision is likely to be struck down, too.

Twenty-six states now have some version of Right-to-Work laws. Right-to-Work laws prevent unions from requiring employees to pay dues in exchange for union representation with the employer, and union membership cannot be a requirement of employment. The principle is that no person should be compelled to join or support an organization with which they disagree.

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The laws have repeatedly been upheld in other states and at the federal level. Despite this, Foust said that the union dues no longer being collected from non-union employees are actually the property of the union. The theory rests on non-union members benefiting from the union collectively bargaining on behalf of all employees with a company. However, that is a choice that unions make, and they do not have to negotiate on behalf of non-union employees.

It would be like if someone started an organization claiming to represent everyone that likes beer, “Friends of Beer.” The organization then scored a legislative victory by lobbying to allow beer to be sold direct from the producer to the consumer. Should every beer drinker who benefits from the change in the law be forced to contribute to “Friends of Beer?”

Wisconsin’s Right-to-Work law will be upheld. Foust’s ruling is similar to one in Indiana that was struck down in federal court. In addition, with conservatives holding a 5-2 majority on the state Supreme Court, it is unlikely that such a judicial stretch will be upheld.

What’s interesting is how Democratic leaders, while hailing the ruling, are not actually defending Foust’s decision. Senate Minority Leader Jennifer Shilling, in her press release, said, “Now we also know that this special interest attack on working families and locally-owned businesses is unconstitutional.” The “now we know” is a reminder that there is no precedent for striking down Right-to-Works laws that have been in existence for 70 years.

It is an invention of Foust’s that the law is unconstitutional. Shilling gives the whole charade away when she also said, “Rather than wasting taxpayer dollars to defend the wishes of out-of-state special interest groups, the Department of Justice should side with Wisconsin families and allow this ruling to stand.” She knows that when Attorney General Brad Schimel appeals Foust’s decision it will be overturned.

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Assembly Minority Leader Peter Barca didn’t even mention the constitutionality of the law in his statement on the ruling. He just called it, “a victory for workers’ rights and middle class families,” and repeated the falsehood that, “so-called ‘Right to Work’ laws have been shown to drive down wages and economic growth.” There’s no defense of Foust’s ruling because Foust’s ruling is indefensible.

As for Shilling’s claim that Right-to-Work is an “attack on working families and locally-owned businesses,” studies have shown that, when taking into account the cost of living, families in Right-to-Work states have more disposable income than in non-Right-to-Work states. In addition, Right-to-Work states outperform other states in income growth and employment growth.

It’s also amazing that Barca could claim that Foust’s ruling is somehow a victory for workers’ rights. While Foust’s ruling is in effect, workers will again be compelled to join organizations they do not agree with or at least support them financially. Instead of a victory for workers’ rights, it’s a victory for the labor unions that support Democratic candidates over the rights of individuals to choose their representatives.

It should also be noted that under the Right-to-Work law, there is nothing to prevent employees from joining or forming a union if they so choose. The law merely prevents the compelling of workers to join or pay dues. Right-to-Work is the real victory for workers, for their rights and for economic opportunity.

Foust’s ruling is unfortunate but revealing. It demonstrates how important it is to have judges at all levels that interpret the law rather than invent it to suit personal preference. If left unchecked, Wisconsin progressives would pervert the courts into super-legislatures to suit their purposes.

Fortunately, Wisconsin voters have chosen to maintain a majority on the state’s highest court that understands the limits of the judicial branch. It’s just too bad that we need to add to the story of how a bill becomes a law, “Wait for the Dane County judge’s decision to be overturned.”