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Constitutional Law; Freedom of speech; equal protection

Constitutional Law
Freedom of speech; equal protection

Wisconsin Act 10 is not unconstitutional.

“Act 10’s payroll deduction prohibitions do not violate the First Amendment. The Unions offer several different First Amendment theories to rebut the compelling deference of rational basis review required under applicable law. Ultimately, none apply because the Supreme Court has settled the question: use of the state’s payroll systems to collect union dues is a state subsidy of speech that requires only viewpoint neutrality. See Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 358-59 (2009); see also Regan v. Taxation with Representation, 461 U.S. 540, 548 (1983). Admittedly, the Unions do offer some evidence of viewpoint discrimination in the words of then-Senate Majority Leader Scott Fitzgerald suggesting Act 10, by limiting unions’ fundraising capacity, would make it more difficult for President Obama to carry Wisconsin in the 2012 presidential election. While Senator Fitzgerald’s statement may not reflect the highest of intentions, his sentiments do not invalidate an otherwise constitutional, viewpoint neutral law. Consequently, Act 10’s prohibition on payroll dues deduction does not
violate the First Amendment.”

“The Supreme Court has continually rejected this sort of argument, stating ‘[d]efining the class of persons subject to a regulatory requirement . . . requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line . . . [and this] is a matter for legislative, rather than judicial, consideration.’ FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315-16 (1993) (internal quotations). Thus, in Village of Belle Terre v. Boraas, the Court upheld a zoning regulation that permitted two unrelated people to live together but prohibited three or more of them from doing so because such arrangements are more likely to constitute boarding or fraternity houses that nuisance neighbors. 416 U.S. 1, 2, 9 (1974). In doing so, the Court implicitly acknowledged that many of the forbidden households would not cause nuisances and were indistinguishable from permitted arrangements, but the Court refused to invalidate the ordinance because ‘every line drawn by a legislature leaves some out that might well have been included.’ Id. at 8. Similarly, in Vance v. Bradley, the Court upheld a statute that required individuals in the Foreign Service system to retire at age sixty but permitted employees covered by the Civil Service to retire at age seventy. 440 U.S. 93, 96 (1979). The government justified the legislation on the need for a more rapid system of promotions and turnover in the Foreign Service system because youth was more important for the rigors of overseas service. Id. at 98-99, 106. The Court acknowledged the law was simultaneously overinclusive and underinclusive because the stated goals applied to many Civil Service jobs and did not apply to certain Foreign Service positions. For instance, only sixty percent of Foreign Service officers served overseas, while five percent of Civil Service officers did. Id. at 107. Nevertheless, the statute easily withstood rational basis review because ‘perfection is by no means required’ and the ‘provision does not offend the Constitution simply because the classification is not made with mathematical nicety.’ Id. at 108 (internal quotations).”

Affirmed in part and Reversed in part.

12-1854, 12-2011 & 12-2058 WEAC v. Walker

Appeals from the United States District Court for the Western District of Wisconsin, Conley, J., Flaum, J.

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