Wednesday, November 14, 2012
Thanks to the good folks over at the U.S. Office of Special Counsel (OSC) for bringing to our attention that Congress just passed landmark legislation to strengthen protections for federal employees who blow the whistle on waste, fraud, and abuse in government operations.
The Whistleblower Protection Enhancement Act (WPEA) (S. 743) passed the U.S. Senate last night, and will be presented to the President for his signature soon. The House of Representatives passed identical legislation in September of this year.
Specifically, the WPEA provides OSC with additional tools to protect federal employees from unlawful retaliation. Provisions include:
• Overturning legal precedents that narrowed protections for government whistleblowers;
• Giving whistleblower protections to employees who are not currently covered, including Transportation Security Administration officers;
• Restoring the OSC’s ability to seek disciplinary actions against supervisors who retaliate; and
• Holding agencies accountable for retaliatory investigations.
Like OSC, I commend Congress and the President for promoting government accountability through enactment of this legislation. The hope is that federal employees will now be more willing to become the vanguard of the citizenry when it comes to shedding light on government abuse and waste, thereby ensuring more accountable and transparent government for all of us.
Friday, November 9, 2012
I am happy to report that today saw the publication by the Wisconsin Journal of Law, Gender & Society (WJLGS) four papers from the October 2011 Symposium on The Constitutionalization of Labor and Employment Law, which was held at the University of Wisconsin Law School.
Here are the contents of the WJLGS Summer 2012 Symposium Issue (Vol. 27, No. 2):
Introduction: Symposium on The Constitutionalization of Labor and Employment Law - Carin A. Clauss & Paul M. Secunda
Disparate Impact and Equal Protection After Ricci v. DeStefano - Marcia L. McCormick
A Strategic Plan for Using the Thirteenth Amendment to Protect Immigrant Workers - Maria L. Ontiveros
Constitutionalizing Employees' Rights: Lessons from the History of the Thirteenth Amendment - George Rutherglen
First Amendment Protection for Union Appeals to Consumers - Michal C. Harper
Check out the articles in this fine volume when you get a chance!
Thursday, November 8, 2012
As referenced in my last post, the future development of labor and employment law in the United States is not limited to a consideration of federal judicial, legislative, and regulatory developments. Additionally, state and local laws and initiatives also play a very important role in setting up the rules of the game in the workplace.
A number of ballot measures were at issue in different states during election night this past Tuesday, including a number involving public sector unions. Here is a non-exhaustive list and how some of them fared:
1. Voters rejected lmits on public sector teacher unions in Idaho and South Dakota. Idaho had three questions on the ballot regarding teacher unions, and South Dakota had one question about teacher unions. All were defeated. From the Huffington Post:
In Idaho, teachers unions chalked up another victory, using the referendum process to block the implementation of legislation that required teacher evaluations to measure student performance, eliminated tenure, restricted collective bargaining and introduced merit bonuses, among many other changes. One of the bills also gave all students laptops and mandated students take two semester-long online courses to graduate.
It is perhaps possible the Idaho legislature tried to tackle too much in one session. That’s a lot of power-shifting to convince parents to accept. A very similar education reform referendum in South Dakota also failed badly [67%-33%].
2. In Michigan, an emergency manager law, which allowed the state to appoint an emergency manager if a local government was failing financially also vested power in the emergency manager to cancel public employee collective bargaining rights and public employee union contracts. This law was struck down by voters by a margin of 52%-48%.
3. Michigan also had a proposal on the ballot that would have put collective bargaining rights in the state constitution, but voters rejected that provision fairly easily 58%-42%.
4. Another state labor measure, Proposition 32 in California, would have prohibited unions from using payroll deductions for political purposes without specific individual permission from union members. After an expensive battle, the Propostion was soundly rejected by voters by a 56%-44% margin.
There are, of course, other measures that were considered in the labor/employment law area, but this gives a taste of what was on various state ballots and what trends there might be concerning the future of unionism and collective bargaining in various states.
Hat Tip: Joe Slater
Monday, November 5, 2012
Friends of the blog Angela Onwuachi-Willig (Iowa) and Rebecca Lee (Thomas Jefferson) write about the joint newsletter for the AALS sections on Employment Discrimination and Labor and Employment Law. Here is their call for submissions:
We are putting together a joint annual newsletter for the AALS Section on Employment Discrimination and the Section on Labor Relations and Employment Law, and we need your help as readers and section members. Please forward this message to any and all people you know who teach or write in the Employment Discrimination, Labor Law, and Employment Law fields.
First, if you have news of any faculty visits, lateral moves, entry-level hires, or promotions and tenure not included here (http://lawprofessors.typepad.com/laborprof_blog/2012/04/workplace-prof-moves-for-2012-2013.html), please e-mail that news to Angela Onwuachi-Willig at firstname.lastname@example.org.
Second, please e-mail Angela Onwuachi-Willig at email@example.com with any information about conference announcements and calls for papers, employment or fellowship opportunities, honors and awards, and reports on recent conferences or other events of interest to the two Sections' members.
Third, we want to include a list of relevant employment or labor law-related publications published in 2012; please hold your forthcoming 2013 publications for next year's newsletter. These publications can be books, articles, and chapters. Please also send a list of your published 2012 articles to Angela Onwuachi-Willig at firstname.lastname@example.org.
Fourth and finally, we want to solicit anyone who would be interested in writing a brief description of a recent "big" labor and employment case or significant new labor or employment legislation. Your subject could be a Supreme Court decision (but it does not have to be), a significant circuit court decision (or emerging circuit split), a state supreme court decision, or an innovative and potentially influential new federal, state, or local law. The description should be fairly short (under 2 pages). If you're looking for an easy way to get your name out there or want a quick outlet for your ruminations about a case or new law, this could be a good opportunity. Just let us know what you are interested in writing on. Please send submissions to Rebecca Lee at email@example.com.
Please send all submissions by November 18, 2012.
November 5, 2012 in Commentary, Conferences & Colloquia, Employment Common Law, Employment Discrimination, Faculty Moves, Faculty News, International & Comparative L.E.L., Labor and Employment News, Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)
Monday, October 29, 2012
It is co-sponsored by New York State Bar Association (NYSBA) Labor and Employment Section’s Technology in the Workplace and Practice Committee and the Hofstra Labor & Employment Law Journal.
More details are included in this announcement.
Thursday, October 25, 2012
You may have read about Theresa Wagner's lawsuit against the University of Iowa Law School for discrimination against her for her political affiliations. Wagner applied for a position as a tenure-track legal writing professor and was denied. She is currently the assistant director of the writing center, a part time position, not on the tenure track. She also applied for several adjunct positions and was denied. Wagner alleged that the reason was because of her activism in pro-life causes. While the trial court had originally dismissed her claim, the Eight Circuit reinstated it, and it went to trial this month.
Some faculty testified on Wagner's behalf, one of whom has now alleged that he has been retaliated against for doing so. Others testified that the decision was made because of a comment Wagner made at her job talk, suggesting that as a legal writing professor she would not be teaching analysis. The jury came back with a finding for the University on Wagner's First Amendment claim, but deadlocked on her equal protection claim. Wagner has asked for a retrial on both issues.
This is an interesting case and very much a cause celebre for some conservatives who believe that the vast majority of universities are biased against conservatives. For more on the jury's verdict and the details, see here and here. As an Iowa alum, I'm comforted that a jury found at least partially that the faculty was not motivated by Wagner's politics.Having taught legal research, analysis, and writing, I'm glad that the faculty realized that teaching analysis is part of what legal writing professors do. But finally, having graduated with Wagner, I hope that the University thinks about offering some sort of settlement that would allow everyone to move forward in a constructive way, if that's possible.
Wednesday, October 10, 2012
Tiffany Webb, a highly regarded guidance counselor at Murry Bergtraum HS for Business Careers downtown, was fired after 12 years with the [New York] Department of Education because photos of her in lingerie and bikinis from her early career as a model are still floating around the Internet.
* * *
Last Dec. 23, days before Webb was to get tenure as an $84,200-a-year guidance counselor, she was dismissed for “conduct unbecoming” a DOE employee. “The inappropriate photos were accessible to impressionable adolescents,” a three-member chancellor’s committee ruled by 2-1. “That behavior has a potentially adverse influence on her ability to counsel students and be regarded as a role model.”
Webb * * * is now suing the DOE in Brooklyn Supreme Court, charging wrongful termination, sex discrimination and violation of First Amendment rights. She seeks reinstatement, back pay and punitive damages.
Hat tip: Phil Sparkes.
Saturday, September 15, 2012
Very interesting story brought to my attention by friend of the blog, Dennis Nolan. Apparently, according to a story reported by Eugene Volokh at the Volokh Conspiracy blog, the Office of Special Counsel (OSC) concluded that during one speech Health and Human Services (HHS) Secretary Kathleen Sebelius violated proscriptions in the Hatch Act concerning political campaigning in the federal employment sector.
One of the interesting questions is what the penalty should be for such a violation and does the OSC have the ability to enforce any type of penalty, such as a suspension from employment (as the statute requires in some instances for violations), against a high-ranking official in a coordinate branch of the government? The OSC letter itself concludes:
In light of the President’s constitutional authority, Congress has determined that violations of the Hatch Act by such officers be referred to the President “for appropriate action.” See 5 U.S.C. § 1215(b). Accordingly, OSC hereby submits this Report of Prohibited Political Activity, together with a response from Secretary Sebelius, to the President.
It also appears from the OSC report that by Sebelius and her office themselves reclassifying the offending speech as a political one, they may have cured some, or all, of the Hatch Act violation.
I must admit that I really am not familiar enough with this area of federal sector civil service law to hazard a guess of what might happen further, if anything, and would certainly appreciate any insights that readers have in the comments section.
Friday, September 14, 2012
Update (9/15/12): Here are some thoughts by myself and others in the Milwaukee Journal-Sentinel on how an appeal of the court's Act 10 decision might eventually unfold.
In a stunning turn of events, a state trial court in Dane County, Wisconsin (Madison) has declared null and void the anti-collective bargaining provisions, annual recertification provisions, and anti-dues check off provisions of Act 10 (the Wisconsin anti-collective bargaining law) under federal and state constitutional law. The pension contribution provisions for Milwaukee were also struck down. Here is the court's decision in Madison's Teacher Inc. v. Walker.
More specifically, the court found that Act 10 impermissbly burdened public sector union members' associational rights and free speech rights in collective bargaining and was in violation of equal protection under both federal and state constitutions. Additionally, the Court found that provisions requiring public employees to contribute to their pensions violated the Home Rule Amendment to the Wisconsin Constitution and the Impairment of Contracts Clause of both the Wisconsin and federal constitutions.
This decision will certainly be appealed and faces a frosty reception at the Wisconsin Supreme Court which has sided with Governor Walker on a partisan basis (4-3) in prior challenges to Act 10.
Things are about to get real interesting here in Wisconsin again.
Thursday, August 30, 2012
An ABA Journal article quotes Paul Secunda (Marquette) as "speechless" that Judge Raymond A. Jackson of the Eastern District of Virginia ruled, in Bland v. Robertsy, that a public employee "liking" something or someone on Facebook is not protected First Amendment expression. The article is ‘Like’ Is Unliked: Clicking on a Facebook Item Is Not Free Speech, Judge Rules.
[I]t is questionably sound to deny public employees the right to speak about matters of great public concern. "'Government employees are often in the best position to know what ails the agencies for which they work.'" Id. at 429 (Souter, J., dissenting) (quoting Waters v. Churchill, 511 U.S. 661, 674 (1994)). By diminishing the protections available to employee-speakers, Garcetti makes employees “less secure in their ability to speak out against governmental fraud, corruption, abuse, and waste without facing retribution from their public employers.” Paul M. Secunda, Garcetti's Impact on the First Amendment Speech Rights of Federal Employees, 7 First. Amend. L.Rev. 117, 118 (2008).
The majority in Garcetti brushed away concerns about protecting employee whistleblowers by noting that other statutes would protect those employees from retaliation. But as the Garcetti dissent predicted, id. at 439–40, such speech often falls outside the narrow confines of whistleblower statutes. See Ruben J. Garcia, Against Legislation: Garcetti v. Ceballos and the Paradox of Statutory Protection for Public Employees, 7 First. Amend. L.Rev. 22 (2008) (detailing failures of statutory protections for government whistleblowers).
Monday, August 20, 2012
Public Sector Labor Law at the Crossroads Symposium
43 Toledo L. Rev. (2012)
- Joseph E. Slater, The Rise and Fall of SB-5: The Rejection of an Anti-Union Law in Historical and Political Context, 473.
- Ellen Dannin, Privatizing Government Services in the Era of ALEC and the Great Recession, 503.
- Matthew Dimick, Compensation, Employment Security, and the Economics of Public Sector Labor Law, 533.
- Charlotte Garden, Teaching for America: Unions and Academic Freedom, 563.
- William A. Herbert, The Chill of a Wintry Light? Borough of Duryea v. Guarnieri and the Right to Petition in Public Employment, 583.
- Anne C. Hodges, Southern Solutions for Wisconsin Woes, 633.
- Michelle T. Sullivan, Binding Arbitration as a Means of Settling Public Sector Union Contracts: A Process with an Image Problem?, 655.
Friday, August 3, 2012
From the New York Magazine, 7-24-12: "Mayor Bloomberg Flirts with Violating the Taylor Law.":
In the wake of the Aurora mass shooting, the New York magazine quotes Bloomberg as saying he does not understand why police across the U.S. do not stand up and collectively say 'We're going to go on strike' to highlight the safety issues for police posed by lax gun laws. New York's Taylor Law plainly states that "no public employee or public employee organization shall cause, instigate, encourage, or condone a strike."
I agree with Harris that it is hard to imagine a public sector union leader not getting into trouble for advocating this same thing.
The linked article includes an interesting discussion of whether Bloomberg may not have violated the Taylor Law because he is an employer (who cannot "authorize, approve, condone or consent" to a strike) and not an employee.
Discuss among yourselves.
Wednesday, July 25, 2012
ClassCrit V Workshop: From Madison to Zuccotti Park: Confronting Class and Reclaiming the American Dream
I am excited to share with readers of the blog information about the forthcoming ClassCrit V Workshop: From Madison to Zuccotti Park: Confronting Class and Reclaiming the American Dream (hyperlink leads to conference website). The conference is scheduled to take place in Madison, Wisconsin at the University of Wisconsin School of Law on November 16-17, 2012. The audience participation sign-up deadline is October 15th.
More about the theme of the conference from its website:
This workshop, the fifth meeting of ClassCrits, takes on class and the American dream as its theme. The most quintessentially American trait may be our capacity to look past current misfortune and imagine a brighter future. Americans love a “rags to riches” story and have long believed that hard work and determination will pay off in the long run. Two years into a sluggish “recovery” from the Great Recession, however, many Americans have lost some of that earnest optimism. Faced with persistent unemployment, a nationwide foreclosure crisis, deep cuts to state and local budgets, and declining state support for public education, Americans are questioning the promise of upward mobility. Indeed falling backwards is now a recognized phenomenon affecting more and more of the “middle class,” arguably blurring the distinctions between the “middle class,” the “working classes” and “the poor.”
But, roused by economic insecurity and the political assault on workers’ rights, “ordinary” people from Madison to Zuccotti Park have taken to the streets to voice their dissent. Taking on the slogan “we are the 99%,” the protest movement has launched a national dialogue about income, wealth and structural inequality, race, gender and class divisions in society, and, fundamentally, what it will take to reclaim our vision of a good life. From Madison to Zuccotti Park: Confronting Class and Reclaiming the American Dream will therefore bring together scholars, economists, activists, policymakers, and others to critically examine both the relationships between and the complexities of class and inequality.
I am excited to be providing a paper on the Wisconsin Public Sector Labor Dispute of 2011 and its relationship to the demise of the Wagner Act model of labor and to recent, class-based movements like Occupy Wall Street. Other worklaw profs scheduled to present include: Brishen Rogers (Temple), Charlotte Garden (Seattle), Nancy Leong (Denver), Ken Casebeer (Miami), Matt Dimick (Buffalo), Jim Pope (Rutgers-Newark), and Ahmed White (Colorado).
This should really be a great conference, so be sure to attend if you will be in the area, or even if you need to jet-hop in!
Monday, July 23, 2012
Mitchell H. Rubinstein, over at the Adjunct Law Prof Blog, sends along this important development in labor relations law from Alaska:
The Alaska Supreme Court recognized a union-relations privilege in Peterson v. State of Alaska, No. S-14233, ___P.3d___, 2012 WL 2947636 (Alaska, July 20, 2012). The Court held that "[b]ased on the strong interest in confidential union-related communications and statutory protection against unfair labor practices, we hold [the state labor relations act] impliedly provides the State's union employees a union-relations privilege." The reasoning employed by the Court - that "the proper functioning of [a] mandatory grievance and arbitration system . . . requires some protection for confidential communications made for the purpose of facilitating the rendition of grievance-related representative services to the employee" and that recognizing a privilege "harmonizes [the state labor relations act]'s strong public policy in favor of contractual resolution of labor disputes with the civil discovery rules" - should be useful in other states and in other settings where this issue frequently arises.
I agree with Mich that this is a "major decision." And like him, I hope other states soon follow suit. For those interested in this topic, Mitch wrote a law review article on this topic a few years ago: Is a Full Labor Relations Evidentiary Privilege Developing?, 29 Berkeley Journal of Labor and Employment Law 221 (2008).
Finally, Mitch comments: "Though this decision arose in the public sector, there is no reason why this decision would not be applicable to private employers. The policies behind the Alaska statute and the NLRA are virtually identical and the policies and need for the recognition of this privilege are certainly identical."
Friday, July 13, 2012
In its Citizens United decision, the Supreme Court held that companies have a First Amendment right to make electoral expenditures with general corporate treasuries. And they’ve done so, with relish, pouring millions into the political system.
What Citizens United failed to account for, however, is that a significant portion of the money that corporations are spending on politics is financed by equity capital provided by public pension funds — capital contributions that the government requires public employees to finance with their paychecks.
This consequence of Citizens United is perverse: requiring public employees to finance corporate electoral spending amounts to compelled political speech and association, something the First Amendment flatly forbids.
Contrast this situation with how the court treats political spending by unions. In many states, public employees are required to pay dues to a labor union. If the public employees union were to spend any of the money raised through dues on politics, the court has ruled, the dues requirement would amount to forced political speech and association. To prevent this First Amendment violation, the court has held that no union may use an employee’s dues for political purposes if the employee objects.
The same should be true for pension funds and corporate politics.
Hat tip to Joe Slater (Toledo) for posting a link to this article on facebook.
Monday, July 9, 2012
Herbert on The Chill of a Wintry Light: Borough of Duryea v. Guarnieri and the Right to Petition in Public Employment
Friend of the blog, Bill Herbert, just posted his latest article on SSRN: The Chill of a Wintry Light: Borough of Duryea v. Guarnieri and the Right to Petition in Public Employment. It is scheduled to be published by the University of Toledo Law Review.
The article analyzes Borough of Duryea v. Guarnieri in the context of American public sector labor history, which includes a legacy of explicit prohibitions on public employees petitioning for improved working conditions and limitations on their right to freely associate for mutual aid and protection.
Herbert argues that in reaching its decision in Borough of Duryea, the Court overlooked the centrality of petitioning in public sector labor relations. The article closely examines the factual and the state legal background of the case to highlight the importance of statutory and contractual protections in public employment, and the pitfalls when those protections are abandoned in favor of constitutional litigation. Finally, the article examines the overlooked question of what enforceable constitutional rights remain for public employees if or when statutory protections and rights are eliminated or substantially curtailed.
Looks very interesting. Check it out!
Thursday, June 21, 2012
Cross-Posted at PrawfsBlawg by Matt Bodie (St. Louis/Notre Dame):
Earlier this week, the WSJ touted a new Manhattan Institute study showing that political contributions by corporations have a positive effect on the bottom line. The study found that "most firms, like most individuals, behave rationally and strategically in their spending decisions on campaigns and lobbying, devoting resources in ways that, they have reason to expect, will benefit the corporations themselves and their shareholders." And benefits do come, in the form of lower taxes, more favorable regulation, and earmarks that help the business. The authors calculate that these political benefits improve returns for shareholders by 2% to 5% a year.
It should not be a surprise that corporate political spending helps corporations. This recent study follows upon research by Jill Fisch on FedEx's political spending, which found that "FedEx has successfully used its political influence to shape legislation, and FedEx's political success has, in turn, shaped its overall business strategy." The WSJ uses the Manhattan Institute report to beat back critics of Citizens United who are looking to get corporations out of politics. The Journal opines:
Liberals have been trying to persuade CEOs and corporate boards to stop spending money on politics by claiming that it doesn't pay. But according to a new study by the cofounder of the Democratic-leaning Progressive Policy Institute, corporate participation in politics works for the companies and their shareholders. * * *
In a better world, corporations wouldn't have to devote money and time to politics. . . . But politicians have created a gargantuan state that is so intrusive that businesses have no alternative than to spend money to defend themselves and their shareholders from such arbitrary looting as the medical device tax in ObamaCare. Liberals want business to disarm unilaterally.
Oddly, neither the Journal nor the Supreme Court seem to understand these principles when it comes to unions.
In today's Knox v. SEIU, the Court again privileges the rights of represented employees to opt out--or rather, not to have to opt-out in the first place--from union political spending. The Court clings to the trope that the union's political spending is somehow extraneous to the core services provided by the union to the represented employees. But political spending is perhaps even more important to unions than it is to corporations. I have posted before about SEIU's electoral activity, but it bears repeating--SEIU spent an estimated $85 million to help elect Barack Obama in 2008. Although the Obama administration failed to get the Employee Free Choice Act passed, it did pass healthcare reform -- which was arguably more of a SEIU priority. (See Chapter 9 of this book by Steve Early, entitled "How EFCA Died for Obamacare"). Former SEIU President Andy Stern had the highest number of oval office visits of any outsider--22--during the president's first six months in office. Stern was not in there based on his individual perspicacity about the nation's various problems. He was in there as president of the fastest-growing union in the U.S. -- one whose members largely worked in the health care field and would benefit from an expansion of health care benefits.
Knox v. SEIU concerns a "Political Fight-Back Fund" levied against represented employees, including nonmembers, to fund political activities in California. Two propositions were on the California ballot: Proposition 75, which would have required an opt-in system for charging members fees to be used for political purposes, and Proposition 76, which would have given the Governor the ability to reduce state appropriations for public-employee compensation. In response to the petitioner's objection to the special assessment, an SEIU employee said, "we are in the fight of our lives," and it's easy to see the urgency. If you accede to the principles that (1) employees can choose as a majority whether to have union representation, and (2) all represented employees need to pay for their representation, then political spending should not be excluded. In an era where state governments are reconsidering collective bargaining rights for public sector unions, political spending is critical to the unions' very existence as businesses. Unions need to have collective bargaining rights in order to bargain collectively on behalf of represented employees.
The majority's opinion in Knox v. SEIU assumes the distinction between collective bargaining expenses and political expenses without much discussion, other than an interesting block-quote from a Clyde Summers's book review. (I would argue that all of Summers' examples don't really prove his or the Court's point.) And at this point, not even the dissent questions the Hudson framework. But it makes no sense. Unions and academics should start fighting the framework: unions are businesses, and political spending is business spending.
I did see one glimmer in the Court's opinion, in the following passage:
Public-sector unions have the right under the First Amendment to express their views on political and social issues without government interference. See, e.g., Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010). But employees who choose not to join a union have the same rights.
The Manhattan Institute report, like the Wall Street Journal, recognizes that corporations are not merely "express[ing] their views on political and social issues" when they make political contributions. They are fighting for their businesses. The Court should not continue to disarm unions unilaterally in a post-Citizens United world.
Monday, June 11, 2012
The City of New Haven can't seem to win for losing. The Supreme Court today denied cert. on Briscoe v. New Haven. You may recall that a couple of years ago when Ricci v. DeStefano was issued, the majority opinion had a particularly puzzling piece. This is what I said at the time:
The last piece of the opinion that I am continuing to puzzle over is the second to last paragraph, where the Court makes this cryptic (to me) statement, providing the City with a defense to the disparate impact lawsuit it was afraid of:
I wasn't the only one puzzling. Michael Briscoe filed that disparate impact lawsuit, and while the trial court dismissed it pursuant to this puzzling language, the Second Circuit reversed, finding the claim not precluded by the Ricci case and finding that the Court's statement was mere dicta. Apparently the Supreme Court agreed by not taking the case on cert today. The City settled with the Ricci plaintiffs, I wonder whether it will figure out a way to settle on the disparate impace suit too, or we'll see yet more litigation on this.
Wednesday, June 6, 2012
As 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.