Wisconsin's Act 10 Fight From the Capitol Crowds to the Recall Vote

Fourteen state senators got in cars and drove to Illinois so that a vote could not happen. Think about how strange that sentence is. In a state famous for cheese, brats and polite disagreement, the minority party went into hiding across the border to stop the majority from doing arithmetic. It was the beginning of one of the great political brawls of this century, and it all started with a bill about how a state pays and bargains with its own workers.

I want to tell this story in order, because it has been told badly from both directions. On the left it became a fable about greedy politicians crushing the middle class. On the right it became a fable about a lone hero who stared down the mob. The real story is better than either fable, because it has dates, a quorum rule, a courtroom, two elections and a budget that either did or did not balance, depending on whom you ask.

Where Wisconsin started

Wisconsin did not begin as an anti-union state. It was the opposite. In 1959 Wisconsin became the first state in the country to give municipal employees a statutory right to bargain collectively. The idea spread. By the time of the 2010 elections, most Wisconsin public workers, from teachers to snowplow drivers to clerks, bargained over wages, hours, benefits and working conditions, with contracts that could run to thick binders.

There was always a tension at the heart of that arrangement, and even some famous friends of organized labor had noticed it. Franklin Roosevelt, who signed the law that made private-sector bargaining the national norm, wrote in 1937 that collective bargaining could not be transplanted into the public service without special limits, because a strike against the government is a strike against the public. In the private sector, a union faces a profit-seeking boss across the table. In the public sector, the union often helps elect the officials sitting on the other side. Put that way, the question is who is representing the taxpayer in the room.

That is the conservative argument in a sentence, and it is the one that Governor Scott Walker took into office in January 2011.

February 2011: the proposal

Walker, a Republican who had been the Milwaukee County executive, won the governorship in the November 2010 election, and Republicans also took both houses of the legislature. Within weeks the state faced a budget shortfall. On February 11, 2011, Walker announced what he called a budget repair bill, which became the center of the storm.

The proposal had two halves, and the difference between them is the whole story. One half dealt with money: public employees would pay more toward their pensions and more toward their health insurance premiums. The other half dealt with power: it sharply narrowed what unions could bargain over.

The final law, 2011 Wisconsin Act 10, did the following for most public employees. Collective bargaining was limited mostly to base wages, and increases in base pay were capped by the rate of inflation unless voters approved more in a referendum. Employees were to contribute toward their pensions an amount equal to about half of the required cost, which employers had long paid on their behalf, and to pay more of their health insurance premiums. Unions would have to hold a recertification election every year, and a union survived only if a majority of all employees in the unit, not just those who voted, supported it. Employers would stop deducting union dues from paychecks. And police officers, firefighters and state troopers were largely exempted from the changes, a feature that critics called inconsistent and that supporters defended as a reflection of the special demands of those jobs.

Here is a point that tends to get lost. Two different complaints were bundled together. Many of the demonstrators were angry about the pension and health contributions, which were a pay cut by another name. The law's long-term effect, however, came from the bargaining half, because limiting what could be negotiated changed the balance of power in every school district and county for years to come.

The Capitol fills up

The reaction was immediate. Within days, crowds filled the rotunda of the State Capitol in Madison and spilled across the Capitol Square. Teachers, students and other union members gathered by the thousands, and on the biggest weekends the numbers rose far higher. Drummers, signs, a lot of cheddar-colored costumes and some of the most polite protesters in recorded history marched around a Capitol that was, for a time, partly occupied.

Some schools closed for days as teachers called in sick, which made the other side of the argument write itself. Children were out of class so the adults could argue about adult benefits. I would be fair here and say the teachers had a legitimate grievance about what the law would do to their paychecks. I would also say it is a very odd thing to teach students a civics lesson by emptying the classroom.

Then came the quorum.

The Senate Democrats leave town

Here is the part with the mechanics, so bear with me. The Wisconsin State Senate has 33 members. For bills that spend money, the state constitution requires a quorum of three-fifths of the members, which is 20 senators. Republicans held 19 seats. So, to pass a bill that appropriated money, they needed at least one Democrat to show up.

On February 17, 2011, the 14 Democratic senators left the state for Illinois. No quorum, no vote. Governor Walker and the Republican leaders called on them to return. They stayed away for weeks, giving media interviews from a hotel across the state line. The Senate could in theory send the sergeant at arms after them, but the sergeant's reach ended at Wisconsin's edge.

Now let me state their best case fairly. The Democrats argued that a legislature has no duty to help pass a law it believes is wrong, that the quorum rule exists to protect a minority from being run over, and that the bill had been rushed through with a small window for public comment. Withholding a quorum is an old tool in American legislatures, and Texas Democrats and Republicans have both used versions of it over the years. As a matter of principle, it is hard to defend the idea that a rule is legitimate only when your side uses it.

My answer is this. One, a quorum rule is meant to protect against a legislature acting without a real body present, not to let a minority veto a bill the voters elected a majority to pass. Two, the people who went to Illinois had run for office promising to do the job in Madison. Three, the voters had just elected Walker and a Republican legislature on a platform that included reining in public-sector costs. A minority can slow a bill. It cannot, in a democracy, cancel an election by staying out of the room. That is the case, and it carried the day, because the Republicans found a way around the problem.

March 9: the vote and the workaround

The way around it was a legal observation. The three-fifths quorum applied to bills appropriating money. Republican leaders pulled out the provisions that spent or borrowed money and passed the rest, including the limits on collective bargaining, arguing that it did not need the larger quorum. On March 9, 2011, the Senate passed the stripped-down bill with the Democrats still away. The Assembly followed, and Walker signed the measure on March 11.

The opponents screamed foul, and a Dane County judge, Maryann Sumi, put a hold on the law, saying the legislature had likely violated the state's open-meetings rule in how it gave notice for the conference committee meeting. The litigation went up, and in June 2011 the Wisconsin Supreme Court ruled that the lower judge had overreached by trying to stop the legislature from publishing the law, and Act 10 took effect. Further challenges followed over the next few years, and in 2014 the Wisconsin Supreme Court upheld the law against a challenge from unions.

I would say two things about that. The procedure was aggressive, and a fair reader can call it hardball. But it was done under the rules as written, and the courts ultimately agreed. If that bothers you, the right answer is to change the rules for the next legislature, not to rewrite what happened in this one.

The recall summer

Wisconsin, like a number of states, lets voters recall officials. Both sides used it. In the summer of 2011, senators of both parties faced recall elections, with unions and their allies pouring money and volunteers into the effort to flip the chamber, and conservative groups fighting back. The result left the Senate closely divided and the Republicans with a thin edge.

Then came the main event. Organizers collected enough signatures to force a recall election against Governor Walker himself, and the election was held on June 5, 2012. His opponent was Tom Barrett, the Democratic mayor of Milwaukee, whom Walker had beaten in 2010. Lieutenant Governor Rebecca Kleefisch was also on the recall ballot.

Walker won. He won by a larger margin than he had in 2010, according to the reports at the time, and he became the first governor in American history to survive a recall election. Two earlier governors, Lynn Frazier of North Dakota in 1921 and Gray Davis of California in 2003, had been removed by recalls, and the Wisconsin outcome broke the pattern.

I take a modest lesson from this and not a triumphal one. The voters of Wisconsin were given a chance to reverse the law, directly, in a high-turnout election with enormous sums spent, and they declined. You can argue about why. But the people who say Act 10 was imposed on an unwilling state have to account for the fact that the state had a clear opportunity to unwind it and did not.

If you want to understand how a recall differs from an ordinary election and when it is available, see Initiative, Referendum and Recall Explained in Ten Straight Answers.

What the law did to local budgets

Now the part where I owe you caution, because the claims fly fast and few people check them. The central claim from Act 10's supporters is that the law gave local governments and school districts room to control costs. Before the law, they say, a district often could not change a health plan or switch insurers without bargaining, and the contract it had signed years earlier set the terms. With bargaining limited, they argue, districts could shop for coverage, change work rules and manage payroll in ways the old system did not allow, and the pension and premium contributions eased pressure on taxpayers.

The central claim from the opponents is that the law cut take-home pay for people who had signed up for lower salaries in return for secure benefits, that it made it harder to recruit and keep teachers, and that the savings came out of workers' pockets and not out of efficiency. They add that shifting costs to employees is not reform, only a transfer.

Both claims contain truth. The employee contribution to pensions and health premiums was a real reduction in take-home pay for many public workers, and I will not pretend otherwise. The savings to local governments were real too, and the law gave them tools they did not have. Whether the trade was a good one for schools depends on questions I cannot settle with a number I can verify: how districts used the money, how they handled pay, and what happened to teacher turnover and morale. Anyone who tells you the evidence is simple has not looked closely.

What I can say with confidence is the structural point. Act 10 changed who sets the terms of public employment, moving decisions from a bargaining table to elected school boards and county boards, which are answerable at the ballot box. That is a conservative argument about accountability, and whether you like it or not, it is a coherent one.

The lessons conservatives should draw

Let me give you four, and the first is not flattering to us.

One: process matters. The legal route Republicans took was lawful, but the speed and the workaround fed the sense of a fait accompli. Reforms that last are those that win the argument as well as the vote. The 2012 recall was, in part, a referendum on the argument, and Walker won it. A law that has survived an election is stronger than one that has only survived a court.

Two: public-sector bargaining is a different animal. The difference between negotiating with a private owner and with an elected official, whose union may have helped elect him, is real. This is a point that even a supporter of unions in the private sector can accept. It is why the debate over What Right-to-Work Means and How Taft-Hartley Let States Decide is a different debate, and it is a fair question whether a government worker should have the same bargaining rights as one who works for a company.

Three: states are laboratories. Wisconsin tried something, other states watched, and some copied it in whole or in part. That is federalism doing what Justice Brandeis described, and I take it up in Brandeis Called the States Laboratories and Conservatives Took Him at His Word. It is also why the experiment is worth studying honestly. A laboratory that does not publish its results is only a place that makes noise.

Four: be careful about victory laps. The people on the other side of this fight included teachers, nurses, snowplow drivers and clerks, who did not wake up wanting to wreck a state. The right posture is firm on the principle and gracious on the people. We argue the policy, and the policy is accountability to the taxpayer.

The Wisconsin story also belongs next to the broader history of how Republicans governed in the Upper Midwest, which you can follow through our Republicans overview. And when you want to see how the state fits into the cycle of reforms spreading from one capital to another, How the States Rewrote Welfare Before Washington Finally Caught Up tells a sibling story from the 1990s.

The bottom line

• Act 10 limited most public-employee bargaining in Wisconsin to base wages, tied raises to inflation unless voters approved more, raised employee pension and health contributions, and required annual union recertification, with police and firefighters largely exempt.
• The law passed in March 2011 after 14 Senate Democrats left the state, and it survived court challenges, a round of recall elections in 2011 and the June 2012 recall of Governor Walker, whom the voters kept in office.
• The honest debate is not whether the law cut take-home pay for many workers, because it did. It is whether the gain in local control and the savings to taxpayers were worth it, and the evidence on schools is contested.
• If you want a reform to last in your state, win the argument in public before and after the vote. A law backed by voters in an election is far harder to repeal than one backed by a parliamentary maneuver.
• Read the actual text of 2011 Wisconsin Act 10 on the legislature's website before you repeat anything about it, in either direction.