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.


June 6, 2012 in Commentary, Labor and Employment News, Public Employment Law | Permalink | Comments (23) | TrackBack (0)

Tuesday, June 5, 2012

Paycheck Fairness Act Dies Again in the Senate

   Equal pay
The Paycheck Fairness Act, S. 797, H.R. 1519, and S. 3220, a bill to amend the Equal Pay Act (that's Pres. Kennedy signing the EPA to the left) succumbed once again to a Republican filibuster in the Senate. Not surprising, but still disappointing to those of us who think the EPA and Title VII can't get at the causes of the gender wage gap. See here, here, and here for stories.


June 5, 2012 in Beltway Developments, Employment Discrimination | Permalink | Comments (7) | TrackBack (0)

2012 Marco Biagi Award

TrophySteve Willborn (Nebraska) writes to announce:

The winners of the 2012 Marco Biagi Award are Ledesma Iturbide and Diego Marcelo for their paper, Una propuesta para la reformulación de la conceptualización tradicional de la relación de trabajo a partir del relevamiento de su especificidad jurídica. This paper is a sophisticated and insightful discussion of legal conceptions of the employment relationship.  It explores emerging problems with current conceptions as employment relationships become more complex in the global environment and suggests a new approach to the issue.

Another paper was selected by the judges for special commendation: Towards an Effective Definition of Forced Labor by Apoorva Sharma. This paper describes new and emerging forms of forced labor; analyzes their treatment under international and domestic (India) definitions of forced labor; and proposes a new definition. 

The International Association of Labor Law Journals sponsors the Marco Biagi Award in honor of one of the founders of the Association: Marco Biagi, a distinguished labor lawyer and a victim of terrorism because of his commitment to social justice. A list of the member journals of the International Association can be found at

This year’s winners were chosen by an academic jury composed of Sandrine Laviolette (France), Jesús Cruz Villalón (Spain), and Steven L. Willborn (United States). The winners were chosen from fifteen papers submitted for the competition.


June 5, 2012 in International & Comparative L.E.L., Scholarship | Permalink | Comments (1) | TrackBack (0)