Wednesday, June 6, 2012

Wisconsin Recall Post-Mortem: Implications for Labor

WisconsinAs one of the few labor law professors here in the State of Wisconsin, and as a close election watcher, I think it is incumbent upon me to give my two cents on the meaning of the Walker recall election for the labor movement in Wisconsin and in the United States.

Although Governor Walker survived the recall with a 53%-46% margin, there are a number of points I wish to emphasize:

1) First and foremost, the Citizens United decision played a huge role.  Walker raised some $31 million for the recall (much from out-of-state billionaires like the Koch Bros) while Barrett raised only $ 4 million. Given the 8-1 disparity in spending, perhaps it is surprising that there was a not a bigger win for Walker.  Also, these numbers belie the sometime allegation of conservatives that unions are raking in huge sums of cash through union dues.  Citizens United primarily favors large corporate donors, plain and simple.

2) I think that the result might have been more about the recall process then saying anything about Walker's agenda or labor's future.  Truth be told, a good segment of the Wisconsin electorate never bought into the idea that a recall was appropriate even if they were against Walker's policies (exit polls from Wisconsin show that 60% of voters think recalls are inappropriate except for malfeasance -- not just when you disagree with policies).   Indeed, when one considers that 19% of Walker voters (according to exit polls) were planning to vote for Obama in November, that makes a lot of sense if one considers that people do not like special process elections like the one we had last night.  So, in short, surviving a recall is not the same as winning an election.

3) Union voters came out in droves to vote (from 26% of electorate in 2010 to 32% of the electorate last night). Yet, and this is important, the labor vote was not monolithic.  Some 36% of union voters (again, according to exit polls) voted for Walker.  Many union members, especially those in the police and firefighter union are Republicans, so no surprise there. But there is anecdotal evidence tha some union members who did not approve of Walker's anti-labor policies, still voted for him in the recall, saying that a recall was not the appropriate process given the situation.  Again, the recall may be more about people being against special process elections than anything else.

4) Silver linings?  Two.  (a) Obama did very well in exit polls (winning 45%-38%) among the voters. Although Obama has been far from a great President for labor, he is still a much better option for labor types than Romney; (b) the State Senate flipped back to Democratic control which means even though the Senate has no planned sesssions for the rest of the year, Walker will be unable to hold special sessions to discuss right-to-work legislation and other conservative agenda items. However, elections occur in Nov. 2012 again for all state assembly seats and some state senate seats, and the important thing for Dems will be to hold the Senate majority for Jan. 2013. If they can, Walker's agenda will be dead in the water for the last two years of his governorship.

5) What does the recall mean for Walker?  Although some say he should be emboldened and bolstered by the victory, his victory speech last night sounded a conciliatory tone. Whether his words are sincere or they result from his realizing that he can't govern by fiat anymore, is anyone's guess.  He also might recognize that he is very much the target of a John Doe investigation and still may be indicted.  Either way, I doubt that he is a viable Vice President candidate given his pending legal issues, his polarizing nature, and the unlikelihood that Romney could win Wisconsin.

6) Finally, what impact, if any, does Walker's recall victory have on other states considering similar labor law reforms. Personally, I think the impact will be small. If anything, the lesson of Wisconsin is that one can get more bees with honey than vinegar. Although most of Walker's labor reforms remain in place (though legal challenges are still pending), Walker, and allied state Senators, have had to endure a year's worth of recall efforts that wasted their time and money.  For other Governors contemplating similar changes, the lesson should be not to go Walker's route if they want to avoid the problems that he has faced. One also has to remember that the Wisconsin recall did not take place in a vacuum and that just last November, Ohio voters resoundingly defeated an anti-collective bargaining bill. So, I think the ripple effects will be miminal in other states from this recall, given the totality of results across the states, and we won't know for sure how aggressive GOP Republican governors will be on the labor front until the voters have spoken again in November.

So, in all, not a good night for Democrats and their labor allies in Wisconsin.  A fatal blow? No. Unions, private and public, will live to fight another day. Union values are too important for many in Wisconsin and elsewhere in the country. And at the end of the day, 1.1 million Wisconsonites voted to recall one of the nation's most anti-labor, pro-corporate Governors in the country.

Am I making lemonade out of lemons? Perhaps. But it would be mistake to draw too many definitive conclusions for the labor movement or for the Presidential election in November based on the Wisconsin recall experience.

PS

http://lawprofessors.typepad.com/laborprof_blog/2012/06/wisconsin-recall-post-mortem-implications-for-labor.html

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Comments

"8-1 disparity in spending"?!?!? How much did unions spend, Paul? Nice talking point, but ignoring a salient fact.

And exit polls favoring Obama? Weren't those the same exit polls that had the race --- ending in a seven-point difference --- "too close to call"?

With that having been said, I agree that it's not "a fatal blow" to labor, nor should it be. It remains to be seen whether it will be a fatal blow to special privileges for labor unions (even Walker's reforms didn't apply to public safety unions, which was a mistake), as I have little confidence that even those in unions' crosshairs will have the courage to remove them.

Posted by: James Young | Jun 6, 2012 8:34:33 PM

Do you know where the polls were conducted? I'm in Dane county and I didn't get asked any questions for an exit poll. What do you think about Tom Barrett conceding while voters were still waiting to vote and absentee ballots were not counted? Personally I don't trust the results at all.

Posted by: Chris | Jun 6, 2012 9:08:13 PM

Chris: The exit polls were conducted throughout the state. I think Barrett conceded a tad early (especially with people in line to vote in Milwaukee), but his advisers must have had information that we didn't and want to get him to speak before it got too late in the eveninb. Personally, I do trust the results.

James: My old friend. Where to begin? First, the figures for spending, put out by consevative, independent, and liberal sources is that Walker raised 30.5 million and Barrett raised 3.9 million. (see Washington Post from today: http://ow.ly/bpQvO). Do you have counter figures or numbers on how much unions spent independently? Regardless, Walker and his allies vastly outspent Barrett, the union, and their allies. As the Washington Post puts it: "Influence Industry: In Wisconsin recall effort, the side with most money won big."

As far as the exit polls, there were two sets. The initial exit polls said 50-50. But the second set of exit polls, which are considered more reliable, were 52-48 Walker. The finally vote tally was 53-46 Walker. I think most people would say that the exit polls were pretty much on the mark. These same exit polls had Obama leading Romney by eight points, with 19% of Walker voters indicating they planned to vote for Obama.

And unlike you, James, I am not worried about "special privileges" for unions, who fight for workplace fairness for the average worker through collective worker power. I am worried about special privileges for special corporate interests that spend endless amounts of corporate money to gut the middle class in this country and has turned this country into a plutocracy.

Posted by: Paul M. Secunda | Jun 6, 2012 9:48:09 PM

Thank you Paul, I was waiting for your take since watching the results yesterday. I am still waiting for the pendulum to swing back to labor. But it never seems too.

Posted by: Joe Coleman | Jun 7, 2012 3:11:10 AM

I am worried about recalls of politicians who have committed no malfeasance, and only did what they promised to do during the campaign. You may recall the bad guy today, but tomorrow it is my guy.

I say if you have recalls, the bar should be very high, say 50 percent of votes at in previous election.

I am no fan of Walker, but he has been honest an was elected by a majority of the voters 16 months ago. He did what he promised to do, an exempted the two unions who supported him. The polling shows that many anti-walker folks agree that he should not have been recalled given his lack of misconduct.

Posted by: Per Son | Jun 7, 2012 6:23:03 AM

Per Son: You and I see eye to eye on most things, but whereas I mostly agree with your malfeasance/misconduct point, I couldn't disagree more with your point that Governor Walker just doing what he promised to do during the initial governor campaign.

Indeed, not once did he say during his 2010 campaign that he would remove most collective bargaining rights from most public sector employees. The right-leaning Politifact news group examined this same claim back in Feb. 2011 and characterized it as "false" (see their story from Feb. 22, 2011 at http://ow.ly/bqxIs). So, no, he was not "honest" when he was elected and exempting public safety officers from the anti-bargaining law was also something only negotiated behind close doors.

As far as thresholds for recall, I think the level is sufficiently high in Wisconsin and is by no means easy to meet. It is not easy to collect over 900,000 recall signatures. It does not guarantee the person will be recalled, as we have seen, but it does show their is a substantial desire to remove a politician from office - in this case, 46% of 2.5 million Wisconsin voters thought Walker should be removed from office.

Finally, to your malfeaance and misconduct point, I am not sure it is so straightforward. The problem that many people have with Walker here in Wisconsin is not just with the substance of his policies. It is the way that he has run the government in secrecy, without negotiation with his opponents, and selling influence to the Koch Bros and other very wealthy individuals. So the argument is a process one. Not clear malfeasance, granted, but I for one felt enough to merit a recall.

Of course, if and when Walker is indicted in this Joe Doe investigation (as a large number of his close associates already have been), it will not take a recall to remove him from office for such malfeasance - he will just resign.

Posted by: Paul M. Secunda | Jun 7, 2012 8:50:00 AM

(I'm posting my comments on the MU faculty blog here as well)

MU comments:

That’s a serious mischaracterization of Citizens United. Citizens United dealt with limitations on independent expenditures for advocacy of candidates by corporate entities out of their general treasuries. It did not deal with contributions directly to campaigns, which are the numbers you are focusing on. Post-Citizens United, corporations are still prohibited from making donations directly to campaigns here in Wisconsin (and most other American jurisdictions). If you want to measure CU’s effect, you need to excise independent spending by the so-called Super PACs.

You’re also comparing apples to oranges with the $31M vs. $4M numbers, because the former includes large sums spent before the election was even certified. Under Wisconsin law, candidates facing recall can raise unlimited sums of money to oppose the recall effort, but that money must be spent on that effort before certification of the recall election occurs – once that point is reached, donations are once again capped and money received previously in excess of the normal limits that was not spent opposing the recall process must be returned. The rationale is very simple – people and groups attempting to recall a politician have no limits on how much they can spend gathering the signatures and running campaigns to encourage people to sign, so it’s only fair to level the playing field.

Your conclusion about union spending ignores independent expenditures, both by PACs and Super PACs. GAB records show that unions have raised over $21M and spent over $18M on the various recall elections – $15M of that targetting Walker. http://www.maciverinstitute.com/2012/06/big-labor-recall-total-to-exceed-20-million/. That only includes reportable sums, missing all kinds of money spent internally communicating with and mobilizing union members as well as all the money spent from the day recall papers were filed until the recall elections were certified.

So if you really want to compare spending fairly, you can’t rely solely on the $31M and $4M numbers. You need to include the money spent by other Democratic primary candidates, money spent by PACs and Super PACs on both sides, money spent organizing the recall effort, and money spent internally by the unions.

FWIW, I think most of the rest of your analysis makes sense (although of course I would disagree about what's a "silver lining"). I tend to ignore exit polling, though, and the value in using this electorate to gauge who is going to come out in November and how they will vote seems extremely minimal.

I also want to address this: "I am not worried about "special privileges" for unions, who fight for workplace fairness for the average worker through collective worker power. I am worried about special privileges for special corporate interests that spend endless amounts of corporate money to gut the middle class in this country and has turned this country into a plutocracy."

I too worry about corporate special interest influence. But I'm puzzled why you are so against corporate special interest influence but have no problem with union special interest influence? Neither is inherently better or worse than any other special interest influence, but both have abused their access. Furthermore, unions have the kind of access to and ability to control government that business can only dream of. Can you imagine what the world would be like if businesses could force government to bargain in good faith with it and if government doesn't give business what they want, business can go to an arbitrator that has the authority to force government to give business its demands?

The whole "business is anti-middle class and unions are pro-middle class" trope is tired, lazy, and just not demonstrable. The majority of the middle class works for businesses. The majority of the middle class owns businesses through their retirement plans. The entirety of the middle class is benefited by the wonderful products and services businesses provide. Businesses are absolutely dependent on the middle class to sell their products and services to. Apple wouldn't exist without hundreds of millions of middle class (and even a substantial number of the poor) being able to afford their products. Yeah, you can point out some abuses of business that hurt the middle class, but you can do the same thing for unions (largely in the form of increased taxes and favoring layoffs over paycuts).

Last thing - "As far as thresholds for recall, I think the level is sufficiently high in Wisconsin and is by no means easy to meet. It is not easy to collect over 900,000 recall signatures. It does not guarantee the person will be recalled, as we have seen, but it does show their is a substantial desire to remove a politician from office - in this case, 46% of 2.5 million Wisconsin voters thought Walker should be removed from office."

It's an arbitrary number, and I for one don't understand how it makes much sense. All it takes in a close election is a little more than half of the people who voted against the winning candidate to decide they want to do it over again to trigger than recall. There's no logic to that. What would make sense is having a signature requirement of the incumbent's last vote total +1. People demanding a recall should have to show that more people now oppose him than supported him for election.

Posted by: Tom Kamenick | Jun 7, 2012 9:21:14 AM

Fair enough. I guess I meant that he ran as a conservative republican, and horror of horrors, pushed for things Conservative Republicans push for.

As for all that other stuff-- I gotta say I am ignorant of and have no clue about.

Posted by: Per Son | Jun 7, 2012 10:06:13 AM

The ultimate lemonade - there is no such thing as a "fatal blow to labor." As an ex-Teamster I can tell you that for wide-awake workers the struggle never ends, it just switches theaters.

I think the true outcome here is that we have in historical terms moved beyond 1860 (about when collective bargaining was legalized in England - a societal judgment that the right in its overreaching would seek to overturn) to the Gilded Age. I don't think this is an insignificant development since when you come right down to it we seem to be having an inter-generational dialogue on the scope of labor rights and everything seems to be up for grabs.

Having Kenneth Casebeer's terrific "Labor Struggles" on the nightstand with Mark Twain's "Gilded Age" (from whence the term was coined) does wonders for one's perspective.

Posted by: Michael Duff | Jun 7, 2012 10:06:30 AM

Yes, and Paul, it's akin to the typical union dodge when union bosses are asked about union political spending --- "Federal law prohibits us from contributing to candidates" --- which avoids the question by ignoring what unions make in in-kind and independent expenditures on behalf of their preferred candidates. Your disingenuous figure is in its disingenuous limitations, as if the fact that Barrett didn't himself "raise" it means that it wasn't spent on his behalf. Even the Washington Post was more honest than that in today's edition (http://www.washingtonpost.com/politics/the-wisconsin-recalls-big-money/2012/06/06/gJQAKAyiJV_graphic.html). When all independent expenditures are considered, it was more like 2-1.

Posted by: James Young | Jun 7, 2012 1:04:31 PM

James - I love when you call me and my arguments "disingenuous!" You know how to persuade and win people over to your side! I also feel honored when you compare to me "union bosses!" So keep doing it.

Unions do contribute to political campaigns. No one that I know is denying that. But corporations and their super wealthy owners contribute more. You admit as much when you says all expenditures taken together show a 2-1 advantage for Walker. I focused my post on amounts raised by the candidates (8-1 Walker edge), but even if you take into account all "independent" contributions, money played a large role in Walker's recall victory.

Also, and I echo my good friend Michael Duff above, unions are not going anywhere and this little stumble will not stop unions and their adherents from fighting for more fair workplace and to be free from corporate dominance of the workplace.

BTW, notice how I just completed my argument without making any ad hominem attacks against you? You should try it some day. :>)

Posted by: Paul M. Secunda | Jun 7, 2012 3:09:54 PM

Untruths by omission are still untruths.

And "ad hominem"? Since when do you object to ad hominem? You (and your allies) demonize Conservatives and their supporters by dismissing them as "corporations" and "super wealthy owners," and bemoan mythical "corporate dominance," as though corporations weren't made up of people (last figure I saw said that 42% of all Americans were shareholders), but ONLY of people who voluntarily buy stock. Funny, isn't it, that AFSCME's ranks in Wisconsin dropped by more than half once it lost those special privileges you so adamantly defend?

And in case you didn't notice --- and apparently, you didn't --- I also agreed that this was not a "'fatal blow' to labor, nor should it be." I know that such a belief doesn't comport which your caricature, but then again, I don't ignore or dismiss those parts of the First Amendment that disfavor my political allies.

Posted by: James Young | Jun 7, 2012 6:50:44 PM

My primary points are these: (1) any analysis which focuses solely upon direct expenditures, particularly given the reasons for this recall, while ignoring the expenditures by organized labor tells only a part of the story; and (2) the notion that money voluntarily given --- no matter its source --- is somehow less "legitimate" than money from entities who forcibly extract at least a portion of it from the unwilling bespeaks a values system which values something higher than liberty.

Posted by: James Young | Jun 7, 2012 7:34:52 PM

I'm not going to enter the fray on the rest of these points, but I do take issue with the suggestion that "[f]or other Governors contemplating similar changes, the lesson should be not to go Walker's route if they want to avoid the problems that he has faced."

In order for that to be true, those governors (and we) have to be fairly certain that unions would still choose to mount the same kind of challenge as they did in Wisconsin. Granted, it's early, and the defeat still stings, but I've seen very little indication that the message unions are taking away from Wisconsin is "We should keep doing this in the future."

Walker won, handily, and - per your analysis - he did so because he was able to out-raise and out-spend his opponents, and because voters don't like special elections. Even with regional differences, both of those things would probably be equally true in another state. It's not like the Koch Bros. only care about WI, right? And voter objections to special elections would be present wherever you go.

So I'm inclined to think that unions would be much more hesitant to undertake a year-long recall campaign, and anti-union governors know that and will act accordingly. Now, there is a chance that unions would follow the advice of their more radical members, and respond to anti-union legislation with direct action rather than electoral schemes. But it remains to be seen how afraid those tactics actually make anti-union legislators.

P.S. I'm curious why you didn't address Barrett as a candidate in your discussion of the reasons for the outcome? Thoughts? I've read a few places, before and after the election, that people saw him as a terrible choice.

Posted by: Alek Felstiner | Jun 8, 2012 7:15:47 AM

Tom - I say this respectfully and in all honesty, this whole paragraph makes no sense to me at all:

"I too worry about corporate special interest influence. But I'm puzzled why you are so against corporate special interest influence but have no problem with union special interest influence? Neither is inherently better or worse than any other special interest influence, but both have abused their access. Furthermore, unions have the kind of access to and ability to control government that business can only dream of. Can you imagine what the world would be like if businesses could force government to bargain in good faith with it and if government doesn't give business what they want, business can go to an arbitrator that has the authority to force government to give business its demands?"

What's interesting to me about it is that it reflects a world view (one that I think ceased to describe any kind of reality by about 1982) that I am constantly wondering whether it is worthwhile to debate or engage. And this is what I find troubling to an increasing degree. I'll just say that I believe that "businesses" don't need to "force" government to bargain in good faith about anything. Businesses substantially own government and are well on the way to completely owning government. Unions are one of the few organized counterweights to that process. You obviously don't agree with this but I think it is important you understand that many people genuinely do. And now my question is, how do we operate a society with such diametrically opposed world views? Whether the CU money seals the deal or not (and I have a very cynical view of the ability of the increasingly uneducated populace to withstand such barrages) even when the election smoke has cleared we are still left with the reality of irreconcilably opposed blocks of people. I tremble for my kids who will apparently require the most powerful of invisible hands to hold all of this together.

Posted by: Michael Duff | Jun 8, 2012 7:40:51 AM

James, I don't think you get the criticism. This is not about calling folks super-wealthy (a verifiable fact), and free rider is an economic term. Your posts have accused commenters and blog writers of intellectual dishonesty, being disingenuous, and the like. How about just disagreeing with folks without being so disagreeable. If you noticed Paul Secunda stated he could not disagree more with me and gave a series of reasons. He did not call me dishonest or disingenuous, did not attack my agenda, etc.

Posted by: Per Son | Jun 8, 2012 7:54:00 AM

I think another salient point, Alek, regarding your second paragraph is the fact that recall for virtually any reason is NOT the norm, as I understand it (for instance, the standard is high in Virginia, and I know of no such efforts that have ever gone to the ballot). Governors and legislators facing similar choices don't in the main, face similar threats.

And "Per Son," I do get the criticism, and as Michael notes, this is about diametrically opposed world views. "Free rider" is, indeed, an economic term (even if, to my mind, inaccurate); "freeloader," the term you used and which I criticized, is value-laden and gratuitous. My point in the OTHER post in which I qualified my agreement with you was that your use of it diminished your argument in favor of a point on which we agreed (and in which you were, therefore, by definition, "intellectually honest" ;-)).

As for Paul, he used equally value-laden terms in criticizing Walker's supporters, and I maintain that it is disingenuous to discuss the spending in Wisconsin without discussing union expenditures which, while not "raised" by Barrett, were made on his behalf. There is a point at which qualifiers are used to such an extent that it renders any analysis meaningless, and this is one of those cases. When even the Washington Post --- a journal not known of evenhandedness in its political reporting --- includes them in its analysis and Paul (an academic) does not, there is a problem which should be highlighted. Was there a disparity in spending? Absolutely. Was it to the degree that Paul asserts? Obviously not.

Was it even true that Citizens United had anything to do with it? Obviously, as a matter of law, it did not, as Citizens United applies by its terms only to financing of FEDERAL campaigns.

I suppose that, as a broader issue, the principle that it upholds might, but even that is unclear, as the Koch brothers are individuals (and never mind that they didn't give him a dime; http://www.forbes.com/sites/clareoconnor/2012/06/07/koch-brothers-scott-walker-didnt-get-a-dime-from-us/), and it is not specified whether Walker's contributions were from corporations or just "super-wealthy" individuals (and at that, only about $1.5 million of more than $30 million, or about 5%, came from such donors (http://www.forbes.com/sites/clareoconnor/2012/06/05/gov-scott-walkers-big-money-backers-include-13-out-of-state-billionaires/). Complaining about that is unsupported by the evidence presented by Paul, and even complaints about "super-wealthy" individuals rings more than a little hollow in light of the far Left's funding by George Soros, and, so far as I am aware, Paul's silence about THOSE contributions.

Posted by: James Young | Jun 8, 2012 8:54:09 AM

What's lost in all the hue and cry about Walker, corporate campaign donations, and the attacks on public sector unions is the actual budget deficit in Wisconsin. Reigning in spending is no easy feat and requires difficult choices. Increase taxes on the 1 percent? Cut health care for the poor? How about reducing education and highway spending? Or maybe he should take the axe to public safety? The approach that Walker proposed wasn't focused solely on reducing labor costs, but included a number of other provisions. The unions viewed the budget bill as a frontal attack on their hard-fought gains, but let's be honest -- they weren't willing to give an inch for the common good. Maybe that's why Walker kept his job.

Posted by: Hal9000 | Jun 12, 2012 3:03:52 PM

Hal,

Pulleaze. I recall the unions were willing to agree to major cuts in benefits and pay. It had nothing to do with cutting costs, only labor's power.

Posted by: Per Son | Jun 13, 2012 7:29:59 AM

I'm not sure that I don't find more merit in "Per Son's" conclusion than I do in "Hal's." But of course, union leaders were willing to surrender temporary gains in order to maintain their power to distort the political process. Walker's reforms treated the disease, not the symptoms, and perhaps that is why Walker kept his job.

Posted by: James Young | Jun 13, 2012 5:45:24 PM

James,

Every Monday must be painful for you. I wonder if the union folks in Wisconsin went for just reversing the law similiar to what happened in Ohio whether they would have been successful. That assumes there is an ability to have voter referenda.

Posted by: Per Son | Jun 14, 2012 6:06:50 AM

Not sure what to make of that, "Per Son." But to the contrary, every Monday is a joy, as I go to the office knowing that I'm working on the side of the angels. Perhaps Paul can answer your question about Wisconsin law; I cannot. But I would also posit that what happened in Ohio was a very precise demonstration of the ability of unions, exercising their government-granted and -enforced special privileges, to distort the political process.

And I note that none of the union supporters on this thread want to address the fact that AFSCME's ranks dropped by more than half once the government stopped acting as its collection agent for union dues. THAT is a sobering reality which renders hollow claims that opposition to Governor Walker's reforms was broad and anywhere near unanimous --- or even constituted a majority --- among those at whom it was directed.

Posted by: James Young | Jun 14, 2012 8:41:05 AM

James,

First, I work on the side of angels not you. lol

Second, I was only referring to Mondays, because Scotus releases decision on that day. It must be stressful.

Third, I do not have any idea why AFSCME lost lots of members. It could be because they hate AFSCME. It could be because they are too lazy or do not understand the rules. It could be because they see no point in joining an organization that can do little under current laws. I personally do not have any idea, which is why I have not addressed the issue. Folks can always vote to decert.

Posted by: Per Son | Jun 15, 2012 9:14:31 AM

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