In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐3193
LABORERS LOCAL 236, AFL‐CIO, et al.,
Plaintiffs‐Appellants,
v.
SCOTT WALKER, Governor of Wisconsin, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 11‐cv‐462‐wmc — William M. Conley, Chief Judge.
____________________
ARGUED FEBRUARY 24, 2014 — DECIDED APRIL 18, 2014
____________________
Before FLAUM and ROVNER, Circuit Judges, and KENDALL,
District Judge.
FLAUM, Circuit Judge. This case raises more challenges to
the constitutionality of Wisconsin’s Act 10, which we last
addressed in Wisconsin Education Association Council v. Walk‐
er, 705 F.3d 640 (7th Cir. 2013) (“WEAC”). Act 10 made sig‐
Of the Northern District of Illinois, sitting by designation.
2 No. 13‐3193
nificant changes to Wisconsin public‐sector labor law: it
prohibited government employers from collectively bargain‐
ing with their general employees over anything except base
wages, made it more challenging for general‐employee un‐
ions to obtain certification as exclusive bargaining agents,
and precluded general‐employee unions from using auto‐
matic payroll deductions and fair‐share agreements. The
plaintiffs, two public‐employee unions and an individual
union member, argue that these changes infringe their First
Amendment petition and association rights. They also argue
that Act 10 denies union members the equal protection of the
laws.
The district court rejected the plaintiffs’ constitutional
theories and granted judgment in Wisconsin’s favor. We af‐
firm.
I. Background
Prior to 2011, Wisconsin granted broad protections and
privileges to public‐sector unions. Under the State Employ‐
ment Labor Relations Act and the Municipal Employment
Relations Act, state and municipal employers were obligated
to bargain in good faith with employee representatives over
a wide range of subjects, including wages and conditions of
employment. Unions could petition the Wisconsin Employ‐
ment Relations Commission for an election to certify the un‐
ion as the employees’ exclusive bargaining agent; certifica‐
tion required only a simple majority of those voting, and the
union remained certified until thirty percent of the employ‐
ees in the bargaining unit petitioned for a decertification
election. Unions were also permitted to negotiate “fair‐
share” agreements requiring nonunion employees to pay a
portion of the costs associated with the collective‐bargaining
No. 13‐3193 3
process. In addition, unions could utilize the state and mu‐
nicipal payroll systems to automatically collect membership
dues.
Much of that changed when the Wisconsin legislature
passed the “budget repair bill” known as Act 10. See Wis.
Act 10, 2011–12 Leg., Jan. 2011 Spec. Sess. (Wis. 2011). The
Act divided Wisconsin state and municipal employees into
two categories: “public safety employees,” which includes
police officers, firefighters, deputy sheriffs, county traffic po‐
lice officers, state troopers, and state motor vehicle inspec‐
tors; and “general employees,” i.e., everyone else. See Act 10
§§ 214, 216, 268, 272.1 Public safety employees, and their un‐
ions, continue to enjoy the protections and privileges of Wis‐
consin’s preexisting scheme.
General employees, on the other hand, became subject to
Act 10’s various restrictions. To begin with, the Act reduced
state and municipal employers’ collective‐bargaining obliga‐
tions with respect to these employees. Public employers are
still required to collectively bargain with their general em‐
ployees over base‐wage increases (though such increases
cannot exceed a change in the Consumer Price Index). After
Act 10, however, state and local employers are no longer re‐
quired to bargain over anything else. See Act 10 §§ 210, 245,
262, 314. And in addition to limiting the scope of obligatory
bargaining, Act 10 separately prohibited municipal employ‐
1 Shortly after Act 10’s enactment, the Wisconsin legislature passed Act
32, which reinstated the collective‐bargaining rights of certain municipal
transit employees. See Wis. Act 32, 2011–12 Leg., 2011–12 Sess. (Wis.
2011). However, this modification does not affect the analysis in the pre‐
sent case.
4 No. 13‐3193
ers from collectively bargaining with their general employ‐
ees about non‐wage issues. Act 10 § 169.
Further, Act 10 mandated that general‐employee unions
submit to a recertification election every year (instead of al‐
lowing unions to remain certified indefinitely). Certification
now requires affirmative votes from an absolute majority of
all employees in the bargaining unit, not just those voting.
Act 10 §§ 242, 289. Act 10 also barred state and municipal
employers from deducting union dues from their general
employees’ earnings. Act 10 §§ 227, 298. Finally, the Act pre‐
vented unions from imposing fair‐share agreements on gen‐
eral employees. Act 10 §§ 213, 219, 267.
We have already rejected one challenge to Act 10’s con‐
stitutionality. In WEAC, we held that Act 10’s prohibition on
payroll deductions did not violate the First Amendment. We
found that the unions’ previous use of the payroll system
was the equivalent of the state subsidizing the unions’
speech; accordingly, we reasoned that Wisconsin was free to
withdraw this subsidy from certain groups so long as it did
so on a viewpoint‐neutral basis. WEAC, 705 F.3d at 645. And
we concluded that Act 10’s distinction between public safety
and general employees was, in fact, viewpoint‐neutral. Id. at
648.
The WEAC plaintiffs also raised an equal‐protection chal‐
lenge to Act 10’s limitations on statutory collective bargain‐
ing, its stricter recertification requirements, and the payroll‐
deduction prohibition. They argued that Act 10’s distinction
between public safety and general employees—along with
how the law classified particular employees—denied the
general employees equal protection. Id. at 653. However, be‐
cause Act 10 did not employ a suspect classification, and be‐
No. 13‐3193 5
cause we found that none of the three challenged provisions
implicated a fundamental right, we applied rational‐basis
review. Id. The law’s distinction between public safety and
general employees held up under this standard. Id. at 654–
57.
At this litigation’s outset, the plaintiffs—two general‐
employee unions that represent city of Madison and Dane
County employees, and an individual union member—
raised arguments similar to those asserted in WEAC. (For
ease of reference, we’ll call all three plaintiffs “the unions.”)
But the unions also pled other First Amendment and Equal
Protection Clause theories unique to this case. Finding that
these arguments failed to state a constitutional violation, the
district court granted Wisconsin’s motion for a judgment on
the pleadings. See Laborers Local 236 v. Walker, No. 11‐cv‐462‐
wmc, 2013 WL 4875995 (W.D. Wis. Sept. 11, 2013). The un‐
ions appeal.
II. Discussion
In evaluating the state’s motion for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c), a
court must determine whether “the complaint sets forth facts
sufficient to support a cognizable legal theory.” Scherr v.
Marriott Int’l, Inc., 703 F.3d 1069, 1073 (7th Cir. 2013). On ap‐
peal, we answer this question de novo. Id.
We begin, however, with statutory interpretation. The
two sides have a fundamental disagreement about Act 10’s
effect upon municipal employees’ collective‐bargaining
rights. Because our Article III jurisdiction over most of the
unions’ claims depends on the outcome of this dispute, we
must settle it before proceeding to the merits.
6 No. 13‐3193
A. The meaning of Wis. Stat. § 66.0508(1m)
As discussed above, Act 10 altered Wisconsin’s public‐
sector collective‐bargaining law in more than one way. First,
the Act amended the State Employment Labor Relations Act,
Wis. Stat. § 111.81 et seq. (“SELRA”), and the Municipal Em‐
ployment Relations Act, Wis. Stat. § 111.70 et seq. (“MERA”),
to only require state and municipal employers to collectively
bargain with their general employees over base‐wage in‐
creases. See Act 10 §§ 210, 262. In addition, however, § 169 of
the Act created a new code section, Wis. Stat. § 66.0508, titled
“Collective bargaining.” This new section reads in relevant
part:
(1) In this section, “local governmental unit”
has the meaning given in s. 66.0506(1).[2]
(1m) Except as provided under subch. IV of ch.
111 [the amended, post–Act 10 MERA], no lo‐
cal governmental unit may collectively bargain
with its employees.
(2) If a local governmental unit has in effect on
June 29, 2011, an ordinance or resolution that is
inconsistent with sub. (1m), the ordinance or
resolution does not apply and may not be en‐
forced.
2 Wis. Stat. § 66.0506(1) defines “local governmental unit” as “any city,
village, town, county, metropolitan sewerage district, long‐term care dis‐
trict, transit authority … local cultural arts district … or any other politi‐
cal subdivision of the state, or instrumentality of one or more political
subdivisions of the state.” This definition tracks MERA’s definition of
“municipal employer,” see Wis. Stat. § 111.70(1)(j), and we follow the
parties’ lead in using the terms interchangeably.
No. 13‐3193 7
…
Wis. Stat. § 66.0508.
The unions point to (1m) as the source of their constitu‐
tional troubles. They argue that this language prohibits mu‐
nicipal employers from collectively bargaining with their
general employees about anything other than base wages—
even if the employers want to bargain outside of MERA’s
statutory framework. For example, the city of Madison, act‐
ing as an amicus curiae, tells us that it voluntarily engaged
in collective bargaining with its employees in the 1950s, be‐
fore Wisconsin established statutory collective bargaining in
1959. Amicus Br. 1. Madison and the unions read
§ 66.0508(1m) to now bar the city from negotiating these
kinds of agreements with its general employees. See id. (“Act
10 actually strips municipalities of the primary tool used for
decades to craft tight budgets and maintain positive rela‐
tions with their employees.”).
Wisconsin, to the contrary, urges us to read § 66.0508(1m)
more narrowly. The state claims that the provision incorpo‐
rates the definition of “collective bargaining” set forth in
MERA: “the performance of the mutual obligation of a mu‐
nicipal employer … and the representative of its municipal
employees in a collective bargaining unit, to meet and confer
at reasonable times, in good faith, with the intention of
reaching an agreement … with respect to wages for general
employees.” Wis. Stat. § 111.70(1)(a). Thus, Wisconsin ar‐
gues:
in the context of Wis. Stat. § 66.0508(1m), “col‐
lective bargaining” means only the statutorily‐
created “mutual obligation” of a municipal em‐
8 No. 13‐3193
ployer and a bargaining unit representative to
negotiate a labor agreement. … In other words,
“collective bargaining” in Wis. Stat.
§ 66.0508(1m) is an act of legislative grace … .
As a result, Wis. Stat. § 66.0508(1m) merely
prohibits statutory collective bargaining for
general municipal employees outside of
MERA.
Appellees’ Br. 14–15.
Wisconsin’s interpretation comes as a surprise to the un‐
ions—and to us—for it would mean that Madison and other
local governments are still free to sit down at the table with
their general employees and bargain collectively over any‐
thing they like. But if that is so, then the constitutional
“right” the unions think Act 10 infringes is actually un‐
touched by the Act. Most of the unions’ constitutional claims
derive from the fact that, in their view, Act 10 precludes
their employers from even voluntarily bargaining with
them. So if Wisconsin’s interpretation is correct, then the un‐
ions have nothing to complain about—and there would be
no “case or controversy” for us to resolve. See Wis. Envtl.
Decade, Inc. v. State Bar of Wis., 747 F.2d 407, 410 (7th Cir.
1984) (“Federal courts established pursuant to Article III of
the Constitution do not render advisory opinions.”).
However, we find the unions’ interpretation of
§ 66.0508(1m) more plausible. Wisconsin contends that the
provision “merely prohibits statutory collective bargaining
for general municipal employees outside of MERA.” Yet
Wisconsin uses the term “statutory collective bargaining” to
refer to the collective‐bargaining obligations imposed on
municipal employers under MERA. Taken literally, Wiscon‐
No. 13‐3193 9
sin is saying that Act 10 prohibits municipal employers from
collectively bargaining under MERA outside of MERA. We
cannot figure out what this command would mean.
Perhaps what Wisconsin means to say is that
§ 66.0508(1m)’s only effect is to obligate municipalities to
collectively bargain with their general employees to the ex‐
tent set forth in MERA. If that is the case, though, then
§ 66.0508(1m) is entirely redundant. Other provisions of
MERA—as amended—already make explicit the newly lim‐
ited scope of the municipalities’ statutory obligation. See
Wis. Stat. § 111.70(1)(a) (giving the definition of “collective
bargaining” quoted above); id. § 111.70(4)(mb) (listing “[a]ny
factor or condition of employment except wages” as a “pro‐
hibited subject[] of bargaining” under MERA with respect to
general employees). And Wisconsin law follows the general
rule of statutory interpretation that “[s]tatutory language is
read where possible to give reasonable effect to every word,
in order to avoid surplusage.” State ex rel. Kalal v. Circuit
Court for Dane Cnty., 681 N.W.2d 110, 124 (Wis. 2004).
In the absence of an authoritative interpretation from the
Wisconsin Supreme Court,3 we must interpret § 66.0508(1m)
as we think the state’s highest court would construe it.
Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d
3 Act 10’s collective‐bargaining limitations have been challenged in the
Wisconsin state courts. So far, none of the decisions have addressed
§ 66.0508(1m) specifically. See Madison Teachers, Inc. v. Walker, No.
11CV3774, 2012 WL 4041495 (Wis. Cir. Ct. Sept. 14, 2012), certified to the
Wis. Sup. Ct. by No. 2012AP2067, 2013 WL 1760805 (Wis. Ct. App. Apr.
25, 2013), petition to certify granted by 839 N.W.2d 619 (Table) (Wis. 2013);
Wis. Law Enforcement Ass’n v. Walker, No. 12CV4474 (Wis. Cir. Ct. Oct. 23,
2013).
10 No. 13‐3193
503, 507 (7th Cir. 1998). Wisconsin law requires courts to “fo‐
cus primarily on the language of the statute,” as Wisconsin
courts “assume that the legislature’s intent is expressed in
the statutory language.” State ex rel. Kalal, 681 N.W.2d at 124.
Therefore, giving effect to § 66.0508(1m)’s plain language,
we interpret the provision to prohibit municipal employers
from reaching binding agreements with their general em‐
ployees on a collective basis, if the agreement concerns any‐
thing other than the employees’ base wages.
B. The First Amendment
Having concluded that Act 10 is as sweeping as the
unions believe, we can now address the merits of their
constitutional claims. The unions articulate several theories
attacking Act 10 under the First Amendment. However, they
are imprecise in their framing. As best we can tell, they are
making two distinct claims: first, that the collective‐
bargaining prohibition just discussed—§ 68.0508(1m)—
violates their members’ rights to petition the government for
redress of grievances, and second, that Act 10’s various
restrictions, in their cumulative effect, violate their
associational rights. Although the district court analyzed the
theories together as a single claim of a violation of the right
“to associate, assemble and express their views in concert,”
Laborers Local 236, 2013 WL 4875995, at *2, we find it helpful
to address the petition and association arguments
separately.
1. The Petition Clause
We begin our First Amendment analysis by emphasizing
that § 66.0508(1m) does not proscribe any conduct by the un‐
ions themselves. It does not prohibit the unions from form‐
No. 13‐3193 11
ing. It does not forbid them from meeting. Nor does it pre‐
vent the unions from advocating on behalf of their members
in any way they see fit.
Instead, the collective‐bargaining restriction acts upon
government employers. The statute tells these employers that
they may not enter into binding agreements with their em‐
ployees on a collective basis about anything other than base
wages. Thus, as the district court recognized, “[u]nder Act
10, general employees remain free to associate and repre‐
sented employees and their unions remain free to speak;
municipal employers are simply not allowed to listen.” La‐
borers Local 236, 2013 WL 4875995, at *5. We agree with the
district court that under Supreme Court precedent, such a
law is constitutional.
There are two cases on point. The first is Smith v. Arkan‐
sas State Highway Employees, Local 1315, 441 U.S. 463 (1979)
(per curiam). In Smith, the Arkansas State Highway Com‐
mission refused to recognize employee grievances filed by a
union on behalf of its members. Instead, the Commission on‐
ly considered grievances filed by the employees themselves.
Id. at 463. The union argued that the Commission’s practice
of “bypassing the union” violated the First Amendment be‐
cause it denied the unions the ability to effectively represent
their members. Id. at 463–64.
The Supreme Court disagreed. It reasoned that the Con‐
stitution’s protection of speech and petition “provides no
guarantee that a speech will persuade or that advocacy will
be effective.” Id. at 464–65. Accordingly, the Court held, “the
First Amendment does not impose any affirmative obliga‐
tion on the government to listen, to respond or, in this con‐
text, to recognize the association and bargain with it.” Id. at
12 No. 13‐3193
465. Smith’s analysis accorded with precedent from our cir‐
cuit holding that state entities have no constitutional duty to
engage in collective bargaining. See Hanover Twp. Fed’n of
Teachers Local 1954 v. Hanover Cmty. Sch. Corp., 457 F.2d 456,
461 (7th Cir. 1972); Indianapolis Educ. Ass’n v. Lewallen, 1969
WL 11147, at *2 (7th Cir. 1969).
The unions acknowledge that Smith prevents them from
claiming an entitlement to a mandated collective‐bargaining
procedure—or to any response from the state at all. But the
unions argue that Act 10 goes one step further than the
withdrawal of previously existing labor protections: as dis‐
cussed above, § 66.0508(1m) precludes state employers from
engaging in collective binding negotiations over anything
but wages. The unions maintain that Wisconsin cannot con‐
stitutionally deny municipal employers their ability “to
choose whether to listen.” In short, the unions claim a First
Amendment right to ask their public employers to bargain,
knowing that the employers could (but need not) accept
their invitation.
This argument is foreclosed by the second Supreme
Court case on point, Minnesota State Board for Community Col‐
leges v. Knight, 465 U.S. 271 (1984). Knight concerned a Min‐
nesota statutory scheme that divided public employees into
bargaining units and allowed each unit to designate an ex‐
clusive representative. Id. at 273–74. The state employer was
required to “meet and negotiate” with that representative on
a host of specific matters that the law considered terms and
conditions of employment (a process the Court described as
“mandatory bargaining”). Id. at 274. But the Minnesota law
also granted professional employees the right to “meet and
confer” with their employers about other employment‐
No. 13‐3193 13
related matters (called “nonmandatory subjects”). Id. The
meet‐and‐confer process, unlike the meet‐and‐negotiate pro‐
cess, did not require the employer to negotiate in good faith
to reach an agreement. Id. However, if a particular bargain‐
ing unit had designated an exclusive representative for the
meet‐and‐negotiate process, the law, in turn, prohibited the
employer from participating in either process with anyone
other than that representative. Id. at 274–75. This meant that
“[i]f professional employees forming an appropriate bar‐
gaining unit [had] selected an exclusive representative for
mandatory bargaining, their employer [could] exchange
views on nonmandatory subjects only with the exclusive
representative.” Id. at 273.
In Knight, faculty instructors who did not wish to join the
union serving as their bargaining representative argued that
Minnesota’s “restriction on participation in the nonmanda‐
tory‐subject exchange process” violated their First Amend‐
ment rights. Id. The Supreme Court rejected the instructors’
claim. The Court explained, as it had in Smith, that
“[n]othing in the First Amendment or in this Court’s case
law interpreting it suggests that the rights to speak, associ‐
ate, and petition require government policymakers to listen
or respond to individuals’ communications on public is‐
sues.” Id. at 285. And nothing about the plaintiffs’ status as
public employees, the Court continued, gave them a greater
entitlement to a receptive audience—or any audience at all—
with the state. Id. at 286–87. Accordingly, the Court reaf‐
firmed the principle from Smith, and held that the instructors
“have no constitutional right to force the government to lis‐
ten to their views.” Id. at 283, 286–87.
14 No. 13‐3193
The fact that the Supreme Court applied Smith’s holding
to the distinct facts in Knight directs our outcome here. The
unions’ complaint is that Act 10 bars Wisconsin public em‐
ployers from voluntarily entering into binding negotiations
with a group of employees. But that was the case in Knight as
well. Under the Minnesota statutory scheme, when it came
to the formal meet‐and‐negotiate and meet‐and‐confer pro‐
cesses, state community colleges were prohibited from lis‐
tening to the faculty instructors individually. Id. at 274–75.
Yet the Court was untroubled, reasoning that “Minnesota
has simply restricted the class of persons to whom it will lis‐
ten in its making of policy.” Id. at 282.
True, the Knight opinion emphasized that while individ‐
ual instructors could not utilize the meet‐and‐negotiate and
meet‐and‐confer processes, nothing prevented the employer
from listening to the excluded instructors in a less formal
setting. See id. at 276–77 & n.4 (“[T]he prohibition on the em‐
ployer’s holding ‘meet and confer’ sessions with anyone but
the exclusive representative has been understood to bar only
a certain type of formal exchange, not other exchanges of
views.”). The present situation is no different in this regard.
Nothing in Wis. Stat. § 66.0508(1m), or Act 10 generally, pre‐
cludes the unions or their members from expressing their
views to their municipal employer or from trying to per‐
suade the employer to adopt a particular policy. In fact,
since Act 10’s enactment, some local employers and unions
have collaborated informally in order to make changes in the
workplace. See Milwaukee, Wis., Code of Ordinances § 340‐
3(2)(a) (requiring Milwaukee’s department of employee rela‐
tions to “[m]eet and confer with employees and employee
groups, including currently and previously‐certified em‐
ployee groups, for the purpose of communicating, soliciting
No. 13‐3193 15
and exchanging information, views, ideas and interests con‐
cerning wages, hours, and other conditions of employ‐
ment”); Steven Greenhouse, Wisconsin’s Legacy for Unions,
N.Y. Times, Feb. 22, 2014, at BU1 (describing how a teachers’
union in Racine held “nearly 30 meetings—technically not
bargaining sessions—with district officials,” who ultimately
agreed to incorporate terms that had previously been in the
teachers’ contracts into a district handbook on school poli‐
cies).
The unions, ignoring Knight, assert that “[t]he ability of
municipal employees to engage in the activity of bargaining
collectively with their employers, in the hope of reaching a
voluntary agreement regarding their wages and other condi‐
tions of employment, is a fundamental right.” Reply Br. 2.
The unions further aver that both the Supreme Court and
our court have long recognized that the Constitution pro‐
tects this right, citing language from NLRB v. Jones & Laugh‐
lin Steel Corp., 301 U.S. 1, 33–34 (1937), Amalgamated Utility
Workers v. Consolidated Edison Co. of New York, 309 U.S. 261,
263–64 (1940), Thomas v. Collins, 323 U.S. 516, 534 (1945), and
McLaughlin v. Tilendis, 398 F.2d 288, 288–89 (7th Cir. 1968).
There are three problems with this assertion. First, two of the
cases the unions cite—Jones & Laughlin and Amalgamated
Utility Workers—involved private employers. So the “right”
the Court was referring to in those cases could not have been
constitutional. E.g., The Civil Rights Cases, 109 U.S. 3, 17–18
(1883). Second, the relevant discussion in each case stands
only for the proposition—unquestioned by Wisconsin and
the district court—that individuals have a right (constitu‐
tional or otherwise) to associate together in a union, to dis‐
cuss matters pertaining to union membership, to select their
own representatives, and to attempt to use their collective
16 No. 13‐3193
weight to advocate for change. None of those cases establish
what the unions assert here: that they have a constitutional
entitlement to an opportunity to collectively bargain with
the state. And we find the unions’ contention that this is a
long‐standing fundamental right difficult to square with the
fact that several states have prohibited public‐sector collec‐
tive bargaining over at least some topics.4
We are also skeptical that this right could be recognized
going forward. Again, the unions say that they are entitled
to an opportunity to engage in voluntary collective bargain‐
ing with their state employers in the hope of reaching an
agreement. How would that right operate in practice? The
unions contend that a state may not statutorily bar local
government employers from collectively negotiating with
their employees. But what if the employer itself—say, a
school district—adopted a written policy that it would no
longer collectively bargain?5 What if the district administra‐
4 See, e.g., N.C. Gen. Stat. § 95‐98 (declaring any agreement or contract
between a state or local government unit and an employee bargaining
agent to be illegal) (enacted 1959); Va. Code § 40.1‐57.2 (prohibiting any
state or local government unit from collective bargaining with its em‐
ployees on any subject) (enacted 1993); Ind. Code 20‐29‐6‐4.5 (prohibiting
school employers from collectively bargaining over anything other than
salary, wages, and salary‐ and wage‐related fringe benefits) (enacted
2011). See generally Martin H. Malin, Does Public Employee Collective Bar‐
gaining Distort Democracy? A Perspective from the United States, 34 Comp.
Lab. L. & Pol’y J. 277 (2013) (describing these and other state laws and
court decisions prohibiting or limiting public‐sector collective bargain‐
ing).
5 We note that this was the case (analogously) in Smith: the Arkansas
State Highway Commission “adopted” the grievance procedure at issue,
under which “the Highway Commission [would] not consider an em‐
ployee’s grievance” unless the employee submitted it directly to the Ar‐
No. 13‐3193 17
tor consistently declined to sit down at the negotiating table?
Or simply refused to take the union’s calls? Surely the line
between constitutionality and unconstitutionality is not
drawn according to how open a state decisionmaker is to
what you have to say. Without a principle to delineate the
amount of solicitude the Constitution requires of state offi‐
cials, the federal courts should steer clear. “Public officials at
all levels of government daily make policy decisions based
only on the advice they decide they need and choose to hear.
To recognize a constitutional right to participate directly in
government policymaking would work a revolution in exist‐
ing governmental practices.” Knight, 465 U.S. at 284.
We therefore conclude that Act 10’s prohibition on collec‐
tive bargaining does not run afoul of the Petition Clause.
2. Right of association
We next address whether Act 10’s provisions, in their
cumulative effect, violate the unions’ associational rights.
The freedom of association is implicit in the First Amend‐
ment’s protections. E.g., NAACP v. Button, 371 U.S. 415, 430
(1963); Rumsfeld v. Forum for Academic & Institutional Rights,
Inc., 547 U.S. 47, 68 (2006) (“FAIR”) (“The reason we have
extended First Amendment protection in this way is clear:
The right to speak is often exercised most effectively by
combining one’s voice with the voices of others.”). The gov‐
ernment might burden this right in a number of ways: for
instance, by punishing group membership, see Elfbrandt v.
Russell, 384 U.S. 11, 16–18 (1966), interfering in the group’s
internal affairs, see Roberts v. United States Jaycees, 468 U.S.
kansas State Highway Department. Ark. State Highway Emps. Local 1315 v.
Smith, 459 F. Supp. 452, 453–55 (E.D. Ark. 1978), rev’d, 441 U.S. 463 (1979).
18 No. 13‐3193
609, 622–23 (1984), or distorting the group’s message, see Boy
Scouts of America v. Dale, 530 U.S. 640, 648 (2000).
The unions cannot claim that Act 10 does any of those
things. As we said before, nothing in Act 10 prohibits unions
from forming, meeting, or organizing. To the contrary, Wis‐
consin affirmatively protects these activities. See Wis. Stat.
§ 111.70(2) (“Municipal employees have the right of self‐
organization, and the right to form, join, or assist labor or‐
ganizations, to bargain collectively through representatives
of their own choosing, and to engage in lawful, concerted
activities for the purpose of collective bargaining or other
mutual aid or protection.”). None of Act 10’s provisions dis‐
advantage employees who choose to join a union. Act 10
does not tell unions how to conduct their internal affairs.
And as we emphasized in WEAC, “Act 10 places no limita‐
tions on the speech of general employee unions, which may
continue speaking on any topic or subject.” 705 F.3d at 646.
Instead, the unions complain that Act 10’s various re‐
strictions and obstacles make it more difficult for them to
accomplish what they were formed to do: represent their
members’ interests through the collective‐bargaining pro‐
cess. The unions argue that public employees will find the
prospect of joining far less appealing now that general‐
employee unions can only negotiate agreements about their
base wages (and even then, only to the extent of a cost‐of‐
living increase). In the unions’ view, this diminished sup‐
port—exacerbated by Act 10’s stringent recertification re‐
quirements, its prohibition on automatic payroll deductions,
and its prohibition on fair‐share agreements—will necessari‐
ly “undermine the ability of the labor organization to con‐
tinue to function.” Appellants’ Br. 21.
No. 13‐3193 19
But the First Amendment does not require the state to
maintain policies that allow certain associations to thrive.
For the most part, “[t]he Bill of Rights enshrines negative
liberties. It directs what government may not do to its citi‐
zens, rather than what it must do for them.” WEAC, 705 F.3d
at 645. Again, Act 10 only acts upon the state. The law’s
changes prevent public employers from acting in certain
ways, or adopting certain procedures, that were once benefi‐
cial to Wisconsin public‐sector unions and their members.
We take the plaintiffs’ point that Act 10 will likely have the
effect of making things more challenging for general‐
employee unions. Cf. Smith, 441 U.S. at 465–66 (assuming
that the Highway Commission’s policy of refusing to recog‐
nize union‐submitted grievances “tends to impair or under‐
mine—if only slightly—the effectiveness of the union in rep‐
resenting the economic interests of its members” (footnote
omitted)). “But this type of ‘impairment’ is not one that the
Constitution prohibits.” Id. at 466.6
The unions protest that they are an expressive association
whose core purpose is to bargain with state employers on
their employees’ behalf. By enacting laws that prevent the
unions from accomplishing this purpose, the unions argue,
6 The Supreme Court has “held laws unconstitutional that require disclo‐
sure of membership lists for groups seeking anonymity” on the grounds
that these laws “made group membership less attractive, raising the
same First Amendment concerns about affecting the group’s ability to
express its message.” FAIR, 547 U.S. at 69 (citing Brown v. Socialist Work‐
ers ‘74 Campaign Comm. (Ohio), 459 U.S. 87, 101–02 (1982)). But there is a
significant difference between a law that “makes group membership less
attractive” because it opens the group’s members up to harassment and
retaliation and a law that makes membership less appealing solely by
decreasing its utility.
20 No. 13‐3193
Wisconsin has weakened their association to a devastating
extent. But that simply is not how the First Amendment
works. An organization cannot come up with an associa‐
tional purpose—even a purpose that involves speech—and
then require support from the state in order to realize its
goal.
In Smith, the Supreme Court observed that “[f]ar from
taking steps to prohibit or discourage union membership or
association, all that [the state] has done in its challenged
conduct is simply to ignore the union. That it is free to do.”
441 U.S. at 466. The same holds true here. The unions cannot
wield the First Amendment to force Wisconsin to engage in
a dialogue or continue the state’s previous policies. For this
reason, none of Act 10’s proscriptions—individually or cu‐
mulatively—infringe the unions’ associational rights.
C. The Equal Protection Clause
Finally, the unions invoke the Equal Protection Clause.
Their claim tries a different angle from the one we rejected in
WEAC. There, the issue was Act 10’s distinction between
public safety and general employees. Here, the unions argue
that Act 10’s collective‐bargaining rules impermissibly dis‐
advantage “represented employees,” i.e., employees who
choose to express their grievances by joining a union, as op‐
posed to “individual employees,” those who prefer to go it
alone.7
7 On appeal, the unions also argue that Act 10 treats labor organizations
differently than other organizations. Specifically, they point out that the
Act’s prohibition on collective bargaining applies only to organizations
made up of employees. See Wis. Stat. § 66.0508(1m). They suggest that, in
theory, municipal employers are still free to bargain with other kinds of
No. 13‐3193 21
Government line‐drawing that does not infringe a fun‐
damental right and is not based on a suspect classification is
subject only to rational‐basis review. FCC v. Beach Commcʹns,
Inc., 508 U.S. 307, 313 (1993). However, the unions contend
that Act 10’s line‐drawing infringes fundamental First
Amendment rights. They argue that under Act 10, local gov‐
ernments cannot make binding agreements with a general
employee’s bargaining representative regarding most em‐
ployment terms and conditions—but that local governments
are not similarly limited when it comes to their making such
agreements with individual employees. This differential
treatment of represented employees and individual employ‐
ees, they argue, amounts to the state punishing the former
for exercising their petition and association rights. Accord‐
ingly, the unions maintain, strict scrutiny applies, and Wis‐
consin must put forth a compelling interest for its law and
show that it is narrowly tailored to that interest.
We must again reject the union’s characterization of the
law. Wisconsin is not treating employees differently based
on the employees’ exercise of their associational rights. At
the risk of repeating ourselves, we stress that Act 10 does not
mandate any form of unfavorable treatment for union mem‐
bers. These employees still possess every right, and are giv‐
en every opportunity, that the state grants to their colleagues
who elect not to join a union. It’s just that Wisconsin has re‐
groups. We have difficulty coming up with another type of organization
that would wish to make a binding agreement with a municipal employ‐
er about its employees’ terms and conditions. But in any event, the un‐
ions did not raise this particular equal‐protection theory before the dis‐
trict court. It is therefore waived. Fednav Int’l Ltd. v. Cont’l Ins. Co., 624
F.3d 834, 841 (7th Cir. 2010).
22 No. 13‐3193
fused to participate in an activity that the represented em‐
ployees want the state to engage in. Wisconsin has chosen to
recognize individual employees as appropriate bargaining
partners for municipal employers, but not union representa‐
tives. That is Wisconsin’s choice to make. The association
right does not compel public employers to sit down at the
table with whomever an employee may wish to represent
them.
Having concluded that none of Act 10’s provisions impli‐
cate the First Amendment, we need only examine Wiscon‐
sin’s distinction between represented and nonrepresented
employees for a rational basis. See WEAC, 705 F.3d at 653.
The district court upheld the distinction under this highly
deferential standard. Laborers Local 236, 2013 WL 4875995, at
*5–6; see also WEAC, 705 F.3d at 653 (“[Act 10] is presumed
constitutional, and we impose a weighty burden on the Un‐
ions—they must ‘negative every … basis which might sup‐
port’ the law because we will uphold it ‘if there is any rea‐
sonably conceivable state of facts’ supporting the classifica‐
tion.” (quoting Heller v. Doe, 509 U.S. 312, 320 (1993))). The
unions have conceded that Act 10’s collective‐bargaining re‐
striction passes muster if we apply rational‐basis review.
Reply Br. 11–12. This was a prudent concession, as we have
previously found Wisconsin’s limitations on the scope of
statutory collective bargaining rationally related to a legiti‐
mate government interest: “promot[ing] flexibility in state
and local government budgets by providing public employ‐
ers more leverage in negotiations.” WEAC, 705 F.3d at 654.
So our equal‐protection analysis can end here.
No. 13‐3193 23
III. Conclusion
Act 10 does not violate the First or Fourteenth Amend‐
ments to the United States Constitution. We therefore
AFFIRM the district court’s judgment in favor of the state.