Wisconsin Education Ass'n Council v. Walker

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 12-1854, 12-2011 & 12-2058

W ISCONSIN E DUCATION A SSOCIATION C OUNCIL, et al.,

Plaintiffs-Appellees,

Cross-Appellants,

v.

S COTT W ALKER, Governor of Wisconsin, et al.,

Defendants-Appellants,

Cross-Appellees.

A PPEAL OF:

K RISTI L AC ROIX, et al.,

Proposed Intervenors/

Appellants, Cross-Appellees.

Appeals from the United States District Court

for the Western District of Wisconsin.

No. 11-cv-00428—William M. Conley, Chief Judge.

A RGUED S EPTEMBER 24, 2012—D ECIDED JANUARY 18, 2013

Before B AUER, F LAUM, and H AMILTON, Circuit Judges.

F LAUM, Circuit Judge. In 2011, the Wisconsin Legislature

passed Act 10, a budget repair bill proposed by recently

2 Nos. 12-1854, 12-2011 & 12-2058

elected Governor Scott Walker. Act 10 significantly

altered the state’s public employee labor laws, creating

two distinct classes of public employees—a select group

of “public safety employees” with the remainder

classified as “general employees.” Among other things,

the Act prohibited general employees from collectively

bargaining on issues other than “base wages,” imposed

rigorous recertification requirements on them, and pro-

hibited their employers from deducting union dues

from paychecks. The Act did not, however, subject public

safety employees or their unions to the same require-

ments; they kept the same rights they had under the

pre-Act 10 scheme. The proposal and subsequent enact-

ment of Act 10 was controversial and received nation-

wide publicity. See Wis. Right to Life State Political

Action Comm. v. Barland, 664 F.3d 139, 144-45 (7th Cir.

2011).

Plaintiffs and cross-appellants, representing seven of

Wisconsin’s largest public sector unions (the “Unions”),

filed suit against defendants-appellants Governor Scott

Walker and other state actors, challenging three provi-

sions of the statute—the limitations on collective bar-

gaining, the recertification requirements, and a prohibi-

tion on payroll deduction of dues—under the Equal

Protection Clause. They also challenged the payroll

deduction provision under the First Amendment. The

district court invalidated Act 10’s recertification and

payroll deduction provisions, but upheld the statute’s

limitation on collective bargaining. We now uphold Act 10

in its entirety.

Nos. 12-1854, 12-2011 & 12-2058 3

I. Background

A. Factual Background

Wisconsin grants public sector employees the right to

bargain collectively through two principal labor laws—the

Municipal Employment Relations Act (“MERA”) and

the State Employee Labor Relations Act (“SELRA”)—that

define the rights of employees and unions as well as

their relationship with governmental employers. Act 10

amended these statutes, imposing new burdens on a

group labeled “general employees.” 2011-2012 Wis. Legis.

Serv. 29 (West). Unions representing “public safety em-

ployees,” however, continued operating under the

pre-Act 10 scheme. Proposal and enactment of Act 10

triggered widespread protest from Wisconsin’s public

sector labor unions, including the Unions’ challenge to

the constitutionality of certain provisions of Act 10.

1. Act 10 Creates Two Categories of Public Employees

All of the Unions’ constitutional claims arise from

the legislature’s decision to subject general employees

but not public safety employees to Act 10’s restrictions

on union activity. All employees governed by MERA

and SELRA are “general employees” unless specifically

identified as “public safety employees” in Act 10. In

creating this distinct group, the Act cross-references

seven of the twenty-two occupations listed in a separate

statute, which governs the Wisconsin Public Employee

Trust Fund. See Wis. Stat. § 40.02(am). Under SELRA,

Act 10 identifies state troopers and state motor vehicle

4 Nos. 12-1854, 12-2011 & 12-2058

inspectors as public safety employees. Wis. Stat.

§ 111.81(15r). Act 10 did not, however, identify the

Capitol Police and the University of Wisconsin Police as

public safety employees, even though both occupations

qualified as such under the trust fund statute. Compare

Wis. Stat. § 40.02(am), with Wis. Stat. § 111.81(15r). Act 10’s

list of public safety employees under MERA is some-

what longer, including (1) police officers, (2) fire fighters,

(3) deputy sheriffs, (4) county traffic police officers, and

(5) village employees that perform fire or police protec-

tion. Wis. Stat. § 111.70(1)(mm).

Notably relevant to the arguments in this appeal, when

Governor Walker ran for election in 2010, only five

public employee organizations endorsed his candidacy

during the campaign: (1) the Wisconsin Troopers Associa-

tion, which represents state troopers and motor

vehicle inspectors; (2) the Milwaukee Police Association;

(3) the Milwaukee Professional Fire Fighters Associa-

tion; (4) the West Allis Professional Police Association;

and (5) the Wisconsin Sheriffs and Deputy Sheriffs Associa-

tion Political Action Committee. Each of these organiza-

tions represents employees categorized as public safety

employees under Act 10. The public safety employee

definition, however, also includes employee organiza-

tions that opposed or failed to endorse the governor.

For instance, all state, municipal, and village police

officers and firefighters qualify as public safety em-

ployees even though only those in Milwaukee and police

officers in West Allis endorsed Walker. In addition, the

Nos. 12-1854, 12-2011 & 12-2058 5

Professional Firefighters of Wisconsin 1 and the Wisconsin

Professional Police Association endorsed Walker’s oppo-

nent. And the head of the Madison firefighters’ union

called for a general strike in response to Act 10, despite

its employees’ public safety classification.

2. Unions Challenge Three Parts of Act 10

The Unions challenge three different parts of Act 10:

(1) limitations on the permissible collective bargaining

subjects of general employees; (2) stricter recertification

requirements for general employee unions; and (3) a

prohibition on the payroll deduction of union dues for

general employees.

First, prior to Act 10, MERA and SELRA permitted public

employees to collectively bargain over a broad array

of subjects including their wages and conditions of em-

ployment. Moreover, these unions could negotiate

“fair-share” agreements, which require employees

opting out of union membership to pay “their proportion-

ate share of the cost of the collective bargaining process

and contract administration.” See Wis. Stat. § 111.81(9).

Act 10, however, limits general employee unions to the

single topic of the “total base wages and excludes any

other compensation.” Wis. Stat. §§ 111.70(1)(a), (4)(mb),

111.81(1), 111.91(3). It also forbids fair-share agreements.

Wis. Stat. §§ 111.70(2), 111.845.

1

The president of the Professional Firefighters of Wisconsin

later ran against Governor Walker’s lieutenant governor in

a recall election seeking to oust both Governor Walker and

his lieutenant governor.

6 Nos. 12-1854, 12-2011 & 12-2058

Next, MERA and SELRA formerly permitted municipal

or state employees to petition the Wisconsin Employ-

ment Relations Commission to hold an election to select

a particular union as the employees’ exclusive bar-

gaining agent. Certification required a simple majority.

Once certified, the union remained the employees’ exclu-

sive agent until thirty percent of the employees petitioned

for a decertification election. That election required a

simple majority to certify a union as the exclusive collec-

tive bargaining representative. Act 10, on the other

hand, requires general employee unions to submit to an

annual “recertification” election in which an absolute

majority—“at least 51 percent of the votes of all of the

general . . . employees in the collective bargaining unit”

(not just those voting)—must approve the union to

retain its status as the employees’ agent. Wis. Stat.

§ 111.70(4)(d)3.b., 111.83(3)(b).

Third, under a separate statute, Wisconsin permitted

state employees to allow their employer to deduct a

portion of their salaries for “[p]ayment of dues to

employe[e] organizations,” including unions. Municipali-

ties could do likewise, provided that they extended

the opportunity to all employee organizations with mem-

bers in the particular unit. See Milwaukee Fed’n of

Teachers Local 252 v. Wis. Emp. Relations Comm’n, 266

N.W.2d 314 (Wis. 1978). Act 10 prohibits all pay-

roll deductions for general employees. Wis. Stat.

§ 20.921(1)(a)2.

Nos. 12-1854, 12-2011 & 12-2058 7

B. Procedural Background

The Unions filed suit in federal district court alleging

that all three provisions violated the Equal Protection

Clause because of the Act’s differential treatment of

public safety and general employees. They also claimed

that the prohibition on payroll deductions for general

employees violated the First Amendment on several

grounds, including that the payroll deduction prohibi-

tion targeted employees who had not endorsed or other-

wise politically supported Governor Walker when he

ran for office in 2010.

1. General Employees Move to Intervene

Several municipal employees (the “Employees”) moved

to intervene in defense of Act 10. See Fed. R. Civ. P. 24(a).

They were not members of the union, but pre-Act 10

law required them to pay union expenses under a fair-

share agreement. After Act 10, the Employees were classi-

fied as general employees and thus no longer responsible

for these dues.

2. Motion for Summary Judgment

The state moved for judgment on the pleadings, Fed. R.

Civ. P. 12(c), and the Unions cross-moved for sum-

mary judgment on all claims, Fed. R. Civ. P. 56. Because

the facts in the case are undisputed, the district court

considered the motions together. The court also con-

sidered the Employees’ motion to intervene.

8 Nos. 12-1854, 12-2011 & 12-2058

The district court applied rational basis review to the

equal protection claims and upheld the limitation on

general employee collective bargaining. Wis. Educ. Ass’n

Council v. Walker, 824 F. Supp. 2d 856 (W.D. Wis. 2012).

It found a rational basis in the state’s belief that

applying Act 10 to public safety employees might result

in a retaliatory strike that jeopardized the public welfare.

A similar strike by the general employees, the state be-

lieved, would be less damaging. Id. at 866-68. However,

the district court found no rational basis for treating the

two groups differently with respect to the recertifica-

tion and payroll deduction provisions. Id. at 868-70. It

further concluded that the payroll deduction provision

violated the First Amendment because the court deter-

mined that the differing political viewpoints of, and

endorsements by, employees in the two classifications

were the only possible justifications for Act 10’s prohibi-

tion on payroll deductions for general employees. Id. at

870-76. Consequently, the district court invalidated

these portions of Act 10 and enjoined the state from

enforcing the recertification and payroll deduction provi-

sions. Defendants now appeal the recertification and

payroll deduction judgment, while the Unions cross-

appeal the adverse collective bargaining ruling.

The district court also denied the Employees’ motion

to intervene, concluding that their unique interest in the

litigation was only “tangential” and that the state could

adequately represent their interests. Id. at 860-61. Em-

ployees now appeal the denial of this motion to intervene.

Nos. 12-1854, 12-2011 & 12-2058 9

II. Discussion

We review a district court’s ruling on summary judg-

ment de novo, making all inferences of fact in favor of

the non-moving party. Bennett v. Roberts, 295 F.3d 687,

694 (7th Cir. 2002). We apply the same standard of

review to a district court’s ruling on a motion for judg-

ment on the pleadings. ProLink Holdings Corp. v. Fed. Ins.

Co., 688 F.3d 828, 830 (7th Cir. 2012).

A. Act 10 Does Not Violate the First Amendment

Act 10’s payroll deduction prohibitions do not violate

the First Amendment. The Unions offer several different

First Amendment theories to rebut the compelling defer-

ence 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,

10 Nos. 12-1854, 12-2011 & 12-2058

Act 10’s prohibition on payroll dues deduction does not

violate the First Amendment.

1. Use of the State’s Payroll System to Collect Union

Dues Subsidizes—Rather than Burdens—Speech

The Bill of Rights enshrines negative liberties. It directs

what government may not do to its citizens, rather

than what it must do for them. See Smith v. City of

Chi., 457 F.3d 643, 655-56 (7th Cir. 2006). While the First

Amendment prohibits “plac[ing] obstacles in the path” of

speech, Regan, 461 U.S. at 549 (citation omitted), nothing

requires government to “assist others in funding the

expression of particular ideas, including political ones,”

Ysursa, 555 U.S. at 358; see also Harris v. McRae, 448 U.S. 297,

318 (1980) (noting that Constitution “does not confer an

entitlement to such funds as may be necessary to realize

all the advantages of” a constitutional right). Thus, even

though “publicly administered payroll deductions for

political purposes can enhance the unions’ exercise of First

Amendment rights, [states are] under no obligation to aid

the unions in their political activities.” Ysursa, 555 U.S.

at 359.

In Ysursa, the Supreme Court squarely held that the

use of a state payroll system to collect union dues from

public sector employees is a state subsidy of speech. Id.

As the Court explained, “the State’s decision not to

[allow payroll deduction of union dues] is not an abridg-

ment of the unions’ speech; they are free to engage in

such speech as they see fit.” Id. Other circuits have

Nos. 12-1854, 12-2011 & 12-2058 11

reached the same conclusion. See Utah Educ. Ass’n v.

Shurtleef, 565 F.3d 1226, 1229-31 (10th Cir. 2009); Toledo Area

AFL-CIO Council v. Pizza, 154 F.3d 307, 319-21 (6th Cir.

1998); S. Car. Educ. Ass’n v. Campbell, 883 F.2d 1251,

1256-57 (4th Cir. 1989); Brown v. Alexander, 718 F.2d 1417,

1422-23 (6th Cir. 1983); Ark. State Highway Emps. Local 1315

v. Kell, 628 F.2d 1099, 1102 (8th Cir. 1980). Like the

statutes in these cases, Act 10 places no limitations on the

speech of general employee unions, which may continue

speaking on any topic or subject. Thus, Ysursa controls,

and we analyze Act 10 under the Supreme Court’s speech

subsidy cases.

The Unions try to distinguish Ysursa by noting that

the prohibition in Ysursa applied across-the-board to

unions representing all public employees, unlike Act 10’s

prohibition targeting only general employees. Thus, the

Unions argue, unlike the subsidy in Ysursa, Act 10

actively imposes burdens on the speech of unions repre-

senting general employees. Indeed, two recent district

court cases have relied on precisely this argument to

distinguish Ysursa in finding First Amendment prob-

lems with payroll deduction statutes similar to Act 10.

See Bailey v. Callaghan, 873 F. Supp. 2d 879, 885-86

(E.D. Mich. 2012); United Food & Commercial Workers

Local 99 v. Brewer, 817 F. Supp. 2d 1118, 1125 (D. Ariz.

2011).

But the Unions’ reasoning falters for two reasons: Act 10

erects no barrier to speech, and speaker-based discrim-

ination is permissible when the state subsidizes

speech. First, the prohibition on payroll deductions for

12 Nos. 12-1854, 12-2011 & 12-2058

general employees does not erect a barrier to the Unions’

speech. As the district court here recognized, Act 10

diminishes speech only because it diminishes “the union’s

ability to fund its speech.” Walker, 824 F. Supp. 2d at

871. Thus, the “obstacle” to speech here is the cost of

speaking, an obstacle the state itself has not created. And

while the state may not erect “obstacles in the path of

[the unions’] exercise of . . . freedom of speech, it need

not remove those [obstacles] not of its own creation.”

Regan, 461 U.S. at 549-50 (quoting Harris, 448 U.S. at 316)

(original brackets omitted); see also Campbell, 883 F.2d

at 1257 (“The state’s failure to authorize payroll deduc-

tions for the [union] does not deny [union] members

the right to associate, to speak, to publish, to recruit

members, or to otherwise express and disseminate their

views.”); Brown, 718 F.2d at 1423 (same). Importantly, Act

10 does not present a situation where the state itself

actively erected an obstacle to speech.2 Thus, nothing

supports treating the selective prohibition of payroll

deductions as a burden on or obstacle to the speech

of general employee unions. Instead, Act 10 simply sub-

sidizes the speech of one group, while refraining from

doing so for another.

2

The First Amendment would undoubtedly prohibit a state

law that itself raised the cost of the Unions’ speech by, for

example, requiring payment of a fee to speak. See Forsyth

Cnty., Ga. v. Nationalist Movement, 505 U.S. 123, 136-37 (1992)

(invalidating law imposing content-based fee on speech). Act 10

imposes no costs of its own, though. It merely declines to pay

a portion of the preexisting costs.

Nos. 12-1854, 12-2011 & 12-2058 13

Second, such speaker-based distinctions are permissible

when the state subsidizes speech. Nothing in the Con-

stitution requires the government to subsidize all speech

equally. A government subsidy “that discriminates

among speakers does not implicate the First Amendment

unless it discriminates on the basis of ideas.” Leathers

v. Medlock, 499 U.S. 439, 450 (1991); see also Nat’l Endow-

ment for the Arts v. Finley, 524 U.S. 569, 557-58 (1998)

(noting legislatures “may allocate competitive funding

according to criteria that would be impermissible

were direct regulation of speech . . . at stake” and that

such funding is not “discriminat[ion] on the basis of

viewpoint [but] . . . merely . . . fund[ing] one activity to

the exclusion of the other” (citation omitted)). As Regan

explained, legislative “selection of particular entities or

persons for entitlement to this sort of largesse is

obviously a matter of policy and discretion not [ordinarily]

open to judicial review[.]” 461 U.S. at 549 (internal quota-

tions omitted). Indeed, the speech subsidy upheld in

Regan discriminated on the basis of speaker—veterans’

groups who engaged in lobbying could claim section

501(c)(3) status but other lobbying groups could not. Id.

at 548-49; see also Campbell, 883 F.2d at 1255-56 (no First

Amendment implications to statute that discriminated

on the basis of speaker in authorizing payroll deduction

for some public employee organizations but not others).

Thus, that the state gave one category of public employees

the benefit of payroll dues deduction does not run

afoul of the First Amendment.

Unable to distinguish Act 10 from Ysursa and the

Court’s other speech subsidy cases, the Unions also liken

14 Nos. 12-1854, 12-2011 & 12-2058

the state’s payroll deduction system to a nonpublic fo-

rum.3 See, e.g., Rosenberger v. Rector & Visitors of the Univ.

of Va., 515 U.S. 819, 830, 834 (1995) (applying nonpublic

forum analysis to a student activities fund used to reim-

burse the expressive activity of student organizations,

noting that the fund was a “forum more in a meta-

physical than a spatial or geographic sense”). But

applying Rosenberger to this case would require us to

ignore Ysursa, where the Supreme Court settled this

question: it evaluated state-imposed restrictions on a

union’s use of state payroll systems under subsidy cases

like Regan, rather than under Rosenberger’s nonpublic

forum framework. 555 U.S. at 359 (citing Regan, 461 U.S.

at 549); but see also Legal Servs. Corp. v. Velazquez, 531

U.S. 533, 544 (2001) (noting in a subsidy case that certain

“limited forum cases . . . may not be controlling in a strict

sense, yet they do provide some instruction”). 4 In fact,

3

Regulation of nonpublic forums requires some level of

heightened scrutiny. See Perry Educ. Ass’n v. Perry Local Educ.

Ass’n, 460 U.S. 37, 49 (1983). Restrictions on the use of

nonpublic forums must be viewpoint neutral and reasonable

in light of the purpose served by the forum. Id. Although the

Court has never named this level of scrutiny, in requiring a

connection between the restriction and the purpose of the

forum, Perry appears to require more scrutiny than simple

rational basis, which will sustain a viewpoint neutral law

that serves any legitimate government objective.

4

Velazquez involved a subsidy to legal aid organizations

that discriminated on the basis of viewpoint, requiring as a

(continued...)

Nos. 12-1854, 12-2011 & 12-2058 15

the Unions cite no case applying nonpublic forum

analysis to a state payroll system, and this Court is not

aware of any. Other circuits likewise have consistently

evaluated state payroll deductions as speech subsidies.

See Shurtleef, 565 F.3d at 1229-31; Pizza, 154 F.3d at

319-21; Campbell, 883 F.2d at 1256-57; Brown, 718 F.2d

at 1422-23; Kell, 628 F.2d at 1102.

Thus, Ysursa requires us to analyze Act 10 under First

Amendment cases involving speech subsidies. Under

those cases, Act 10 presents no free speech problem

unless it invidiously discriminates on the basis of view-

point.

2. Act 10 Does Not Invidiously Discriminate on the

Basis of Viewpoint

While the First Amendment does not require govern-

ment to subsidize all speech equally, it does proscribe

subsidies that discriminate on the basis of viewpoint.

Regan, 461 U.S. at 548; see also Ysursa, 555 U.S. at 359;

Rosenberger, 515 U.S. at 834. Act 10, however, is viewpoint

4

(...continued)

condition of payment that the legal aid organization refrain

from raising “arguments and theories Congress finds unaccept-

able[.]” 531 U.S. at 546. Thus, although Velazquez referenced

the Court’s nonpublic forum cases, it neither created nor

applied an analogous form of heightened scrutiny in the

subsidy context. Instead, by invalidating the viewpoint-based

subsidy, Velazquez is entirely consistent with Regan’s sole

limitation on speech subsidies—viewpoint neutrality.

16 Nos. 12-1854, 12-2011 & 12-2058

neutral because it is neither facially discriminatory nor

a neutral façade for viewpoint discrimination.

a. Act 10 Is, on Its Face, Viewpoint Neutral

On its face, Act 10 is neutral—it does not tie public

employees’ use of the state’s payroll system to speech

on any particular viewpoint. See Velazquez, 531 U.S. at

546-48 (speech subsidy viewpoint discriminatory when

conditioned on recipient advancing particular view-

point). Nevertheless, the Unions argue that Act 10

facially discriminates on the basis of viewpoint because

general employee unions and public safety unions will

necessarily espouse different viewpoints. Maybe they

do. But this argument merely recycles the Unions’ earlier

assertion that speaker-based discrimination in the

subsidy context requires heightened scrutiny. It does

not. See Regan, 461 U.S. at 549-50 (citing Harris, 448 U.S.

at 316). The cases cited by the Unions, which invalidated

laws discriminating on the basis of speaker, confirm

this principle. Each one—unlike Act 10—involved a law

that actively created barriers to speech rather than

mere subsidies. For example, Citizens United v. FEC in-

volved a law that prohibited speech by forbidding

certain speakers from spending money, akin to pro-

hibiting speech altogether. 130 S. Ct. 876, 896-97 (2010).

Similarly, the statute in Sorrell v. IMS Health, Inc.—like that

in Citizens United—actually prevented pharmaceutical

manufactures from engaging in certain types of commer-

Nos. 12-1854, 12-2011 & 12-2058 17

cial speech. 131 S. Ct. 2653, 2663 (2012).5 While Sorell and

Citizens United support the unconstitutionality of

speaker-based discrimination in statutes that prohibit or

burden speech, Regan controls on government subsidies

of speech: speaker-based distinctions are permissible.

Regan, 461 U.S. at 548-49.

The mere fact that, in practice, the two categories

of unions may express different viewpoints does not

render Act 10 viewpoint discriminatory. The two groups

here are no more likely to express different viewpoints

(and the government subsidy no more likely to ad-

vantage a particular viewpoint) than the speaker-based

distinction sanctioned in Regan. In that case, the advan-

taged group, veterans’ organizations, undoubtedly held

different viewpoints than those excluded from the

subsidy; yet, the Court upheld the statute. Id. at 550-51.

Indeed, the Unions’ argument proves too much: if different

speakers necessarily espouse different viewpoints, then

any selective legislative funding decision would violate

the First Amendment as viewpoint discriminatory. Such

5

The Unions also suggest Rosenberger requires finding abridg-

ment of free speech when a speech subsidy makes speaker-

based distinctions. But that case actually recognizes just the

opposite: Rosenberger explained that Regan, in upholding a

speech subsidy, “relied on a distinction based on preferential

treatment of certain speakers—veterans’ organizations—and

not a distinction based on the content or messages of those

groups’ speech.” Rosenberger, 515 U.S. at 834. Thus, Rosenberger

actually reaffirms Regan’s determination that government

may subsidize the speech of some speakers but not others.

18 Nos. 12-1854, 12-2011 & 12-2058

an interpretation of the First Amendment would leave

legislatures with the unpalatable choice of funding all

expressive activity or none at all.

Retreating somewhat from the argument that public

safety and general employee unions necessarily espouse

different viewpoints, the Unions next argue that the

public safety/general employee distinction is “likely” to

have a viewpoint discriminatory effect. See Southworth

v. Bd. of Regents of the Univ. of Wis. Sys., 307 F.3d 566,

593-94 (7th Cir. 2002); Chi. Acorn v. Metro. Pier & Exposition

Auth., 150 F.3d 695, 699-700 (7th Cir. 1998). The courts

in both Southworth and Chicago Acorn applied a

nonpublic forum analysis to invalidate facially neutral

policies that had the effect of viewpoint discrimination.

Southworth, 307 F.3d at 593-94; Chi. Acorn, 150 F.3d at

699-700. In both cases, however, this effect inhered in

the policy classification itself. The Chicago Acorn regula-

tion, for example, waived rental fees for applicants who

might generate favorable publicity. 150 F.3d at 699. This

criterion, however, would inherently produce a discrimina-

tory effect: “As applied to political applicants . . ., a

favorable-publicity criterion is especially likely to have

political consequences, since the only political users of

the pier who will generate large amounts of favorable

publicity are respectable, popular politicians and re-

spected, well-established political groups; pariahs need

not apply.” Id. at 699 (emphasis omitted). So too in

Southworth, which involved two funding standards for

student activities grants. One standard favored student

organizations that had previously received funding; the

other favored long-established organizations. 307 F.3d

at 593. Because political and religious groups had previ-

Nos. 12-1854, 12-2011 & 12-2058 19

ously been excluded from receiving funding, these

two standards inherently disadvantaged religious and

politically partisan viewpoints. Id. at 593-94. Unlike the

classifications in Chicago Acorn and Southworth, however,

Act 10’s public safety and general employee distinction

has no inherent connection to a particular viewpoint.

In short, in Chicago Acorn and Southworth, a causal con-

nection existed between the classifications and the dis-

criminatory effect. In contrast, the connection between

the classification in Act 10 and the Unions’ perceived

discriminatory effect is merely coincidental: a particular

union’s political views do not inhere in its status as a

public safety union.6 Consequently, the Unions’ reliance

on Chicago Acorn and Southworth is misplaced.

The distinction between public safety and general

employee unions in Act 10 is facially neutral, and the

Unions do not succeed in showing otherwise. Thus, we

next consider whether Act 10 is a façade for invidious

discrimination.

b. Act 10 Is Not a Façade for Invidious Discrim-

ination

Because Act 10 itself does not facially discriminate on

the basis of viewpoint, the Unions raise three other argu-

6

The Unions, of course, suggest that the relationship between

the unions’ political views and status as a public safety union

is no mere coincidence. But, as explained in the next section,

we cannot conclude Act 10 is a neutral façade for viewpoint

discrimination.

20 Nos. 12-1854, 12-2011 & 12-2058

ments suggesting that Act 10 presents a facially neutral

façade for invidious viewpoint discrimination. These

arguments require peering past the text of the statute

to infer some invidious legislative intention. We decline

this invitation.7 First, the Unions rely on the correlation

between particular unions’ political endorsements of

Governor Walker and the unions’ statuses as public

safety unions. Second, the Unions argue that Act 10 is

underinclusive in a way that makes it “a mere pretext

for an invidious motive.” See Ridley v. Mass. Bay Trans.

Auth., 390 F.3d 65, 86 (1st Cir. 2004). Finally, the Unions

look to the statements of a particular legislator to find

an invidious intent to discriminate.

The correlation between political endorsements and

access to the payroll system does not render Act 10 view-

point discriminatory. That the benefits of Act 10’s

subsidy may fall more heavily on groups with one par-

7

The dissent suggests that Cornelius v. NAACP Legal Defense &

Educ. Fund, 473 U.S. 788, 811 (1985), compels a searching look

beyond the text of the statute. (Dissenting op. at 49-50, 53.) We

do not read Cornelius that broadly. Cornelius simply “decline[d]

to decide in the first instance whether the exclusion of respon-

dents [from the Combined Federal Campaign] was im-

permissibly motivated by a desire to suppress a particular

point of view.” Id. at 812-13. “Respondents,” the Court

noted, were “free to pursue this contention on remand.” Id. at

813. We find nothing in this passage or any other language

from Cornelius that encourages federal courts to search for

some invidious motive when confronted with a facial chal-

lenge to a facially-neutral statute.

Nos. 12-1854, 12-2011 & 12-2058 21

ticular viewpoint does not transform a facially neutral

statute into a discriminatory one. In Hill v. Colorado, for

example, a statute prohibited people from approaching

within eight feet of any other person outside a

healthcare facility for purposes of any oral protest, educa-

tion, or counseling. 530 U.S. 703, 709-10 (2000). According

to the Court, the statute was neither content- nor view-

point-based, even though the legislative history made

“clear” that protests near abortion clinics “primarily

motivated” the statute and its burdens would fall dispro-

portionately on the speech of those protestors.8 Id. at 715.

8

We see viewpoint neutrality as a broadly applicable require-

ment to all laws implicating First Amendment concerns with a

test that does not vary. Thus, unlike the dissent, we do not

distinguish among cases analyzing viewpoint neutrality in

the time, place, and manner context and the circumstances

present here.

Moreover, time, place, and manner regulations of speech

must satisfy additional requirements beyond those imposed on

regulations of nonpublic forums. While regulation of non-

public forums requires only viewpoint neutrality and “rea-

sonable[ness] in light of the purpose served by the forum,”

Cornelius, 473 U.S. at 806 (citing Perry Educ. Ass’n, 460 U.S. at 49),

the First Amendment requires much more of time, place,

and manner restrictions. They must be content neutral (which

includes both viewpoint and subject-matter neutrality, see Hill,

530 U.S. at 723); serve a legitimate, substantial government

interest; be narrowly tailored to serving that interest; and

leave open ample alternative means of communication. Ward

v. Rock Against Racism, 491 U.S. 781, 798-99 (1989). Thus, it

(continued...)

22 Nos. 12-1854, 12-2011 & 12-2058

Indeed, the Supreme Court has made clear that a policy

is not “vulnerable to constitutional assault . . . because

it systematically and predictably burdens most heavily

those groups whose viewpoints are out of favor with

the . . . mainstream.” Christian Legal Soc’y v. Martinez, 130

S. Ct. 2971, 2994 (2010); see also Madsen v. Women’s Health

Ctr., Inc., 512 U.S. 753, 763 (1994) (“[T]he fact that the

injunction covered people with a particular viewpoint

does not itself render the injunction content or

viewpoint based.”); Pilsen Neighbors Cmty. Council v.

Netsch, 960 F.2d 676, 688 & n.9 (7th Cir. 1992) (noting

“plaintiffs were denied access into the program because

of their status, not because of their views”). Act 10 is no

different—that it disproportionately impacts groups

with one particular viewpoint does not transform its

facially neutral language into an invidiously discrimina-

tory statute. Moreover, as a factual matter, the public

safety category includes several unions that did not

endorse Governor Walker—for example, none of the

municipal police and firefighters unions, except those

in Milwaukee and West Allis, endorsed Governor Walker.

Nor does the Unions’ underinclusivity argument fare

any better. According to the Unions, Act 10 is under-

inclusive because several occupations that ensure public

8

(...continued)

seems counterintuitive that viewpoint neutrality would

receive closer judicial scrutiny in an area of speech like reg-

ulation of nonpublic forums than in an area subject to

stiffer constitutional requirements, like time, place, and

manner restrictions.

Nos. 12-1854, 12-2011 & 12-2058 23

safety were omitted from the definition of “public safety

employees.” This underinclusivity, the Unions argue,

presents a facially neutral façade concealing “a govern-

mental attempt to give one side of a debatable public

question an advantage in expressing its views to the

people.” City of Ladue v. Gileo, 512 U.S. 43, 51 (1994) (inter-

nal quotations omitted); see also Ridley, 390 F.3d at 86

(underinclusive regulations can suggest “viewpoint

discrimination is afoot”). The district court seemingly

agreed, concluding that “the only apparent reason for

discriminating between the [two types of unions] is their

different viewpoints.” Walker, 824 F. Supp. 2d at 876

(emphasis omitted). Indeed, the Supreme Court has, on

occasion, expressed reservations about underinclusive

regulations of speech. In City of Ladue, the Court did

recognize that “the notion that a regulation of speech

may be impermissibly underinclusive is firmly grounded

in basic First Amendment principles,” and that “through

the combined operation of a general speech restriction

and its exemptions, the government might seek to select

the permissible subjects for public debate and thereby

to control . . . the search for political truth.” 512 U.S. at 51

(emphasis in original) (internal quotations omitted).9

Likewise, Brown v. Entertainment Merchants Ass’n ex-

plained that “[u]nderinclusiveness raises serious doubts

9

The Court never reached the question of whether the exemp-

tions in City of Ladue rendered the statute underinclusive in

a way that violated the First Amendment, though, because

the Court concluded that the ban itself—regardless of any

exemptions—violated the First Amendment. 512 U.S. at 58.

24 Nos. 12-1854, 12-2011 & 12-2058

about whether the government is in fact pursuing the

interest it invokes, rather than disfavoring a particular

speaker or viewpoint.” 131 S. Ct. 2729, 2740 (2011).

Neither case applies here, though. First, in City of

Ladue, the Court worried only about underinclusivity

driven by content discrimination. Thus, the First Amend-

ment does not forbid all underinclusivity but only

underinclusivity that “restricts too little speech because

[the law’s] exemptions discriminate on the basis of the signs’

messages.” 512 U.S. at 51 (emphasis added). Only con-

tent-based or viewpoint-based exemptions implicate the

concerns voiced in City of Ladue. The Court re-affirmed

this view in R.A.V. v. City of St. Paul, explaining that

“the First Amendment imposes not an ‘under-

inclusiveness’ limitation but a ‘content discrimination’

limitation upon a State’s prohibition of proscribable

speech.” 505 U.S. 377, 387 (1992). As explained above, Act

10 contains no content- or viewpoint-discriminatory

exemption. Instead, its exemption differentiates on the

basis of speaker without reference to whatever

viewpoint that speaker may hold. Brown does not alter

this conclusion; in that case, the Court relied on

underinclusivity when determining whether the statute

was narrowly tailored so as to survive strict scrutiny.

131 S. Ct. at 2738. Moreover, as the district court recog-

nized, both of these cases involved active prohibitions

on speech. Neither involved the situation in this case,

where the state merely declines to subsidize speech.

Left with a facially viewpoint neutral state subsidy of

speech, both the Unions and the district court ultimately

Nos. 12-1854, 12-2011 & 12-2058 25

rely on the floor statements of Senator Fitzgerald, who,

rising in support of Act 10, explained “[i]f we win this

battle, and the money is not there under the auspices

of the unions, certainly what you’re going to find is

President Obama is going to have a . . . much more

difficult time getting elected and winning the state of

Wisconsin.” Walker, 824 F. Supp. 2d at 876 n.17. This

singular comment, however overtly partisan, reveals

little of the intent of the legislature as a whole when it

enacted Act 10 or the governor when he introduced it.

See United States v. O’Brien, 391 U.S. 367, 384 (1968)

(noting “[w]hat motivates one legislator to make a

speech about a statute is not necessarily what motivates

scores of others to enact it”). The Supreme Court has

recognized as much. O’Brien refused to infer discrimina-

tory intent from the floor statements of three congress-

men, explaining that courts should not “strike down an

otherwise constitutional statute on the basis of an

alleged illicit legislative motive.” Id. at 383-86. Likewise,

Hill declined to do precisely that, explaining that “the

contention that a statute is ‘viewpoint based’ simply

because its enactment was motivated by the conduct of

the partisans on one side of a debate is without support.”

530 U.S. at 724. Indeed, in Hill the legislative record

showed that legislators passed the statute primarily to

address pro-life speech outside abortion clinics, yet

Hill nevertheless found the statute content neutral. Id. at

715; see also id. at 724-25 (noting anti-picketing ordinance

in Frisby v. Schultz, 487 U.S. 474 (1988), held content

neutral though “obviously enacted in response to the

activities of antiabortion protesters”). And in Campbell,

26 Nos. 12-1854, 12-2011 & 12-2058

the Fourth Circuit refused the invitation to review the

legislative record for evidence of discriminatory intent

when the legislature permitted some unions to use

payroll deductions but prohibited another union from

doing so. 883 F.2d at 1260-62. In any event, we have

insufficient basis to ascribe Senator Fitzgerald’s personal

position to the entire legislature.1 0

At bottom, the use of the state payroll system to

collect union dues is a state subsidy of speech. As such,

the distinction between public safety and general em-

ployees only violates the First Amendment if it discrimi-

nates on the basis of viewpoint. Because we conclude

that Act 10 is not viewpoint discriminatory, it does not

implicate the First Amendment and requires only

rational basis review.

10

That is not to say that statements of legislative intent or

legislative purpose are never relevant in determining whether

the legislature acted with a viewpoint discriminatory motive

when choosing to subsidize certain speakers but not others.

For example, a statement of legislative purpose contained in

a preamble or other uncodified provision, or contained in a

conference or committee report could likely provide sig-

nificant evidence of the legislature’s discriminatory motive.

Here, we simply hold that one statement of a single legislator

does not require invalidation of an otherwise viewpoint

neutral and constitutional statute. When ruling a statute

unconstitutional, “the stakes are sufficiently high . . . to eschew

[the] guesswork” inherent in judicial scrutiny of legislators’

statements. O’Brien, 391 U.S. at 384.

Nos. 12-1854, 12-2011 & 12-2058 27

B. Act 10’s Provisions Survive Rational Basis Review

The parties necessarily agree that rational basis

review governs the Unions’ equal protection claims

because Act 10 neither affects a “fundamental right[] nor

proceed[s] along suspect lines.” Heller v. Doe, 509 U.S. 312,

319 (1993). Under this standard, a law avoids constitu-

tional scrutiny as long as it bears a rational relationship

to a legitimate government interest. Id. at 320; Smith,

457 F.3d at 652. Importantly, we do not require the state

to “actually articulate” the law’s purpose or “produce

evidence to sustain the rationality” of the classification.

Heller, 509 U.S. at 320; see Univ. Prof’ls of Ill., Local 4100 v.

Edgar, 114 F.3d 665, 667 (7th Cir. 1997). Instead, the law

is presumed constitutional, and we impose a weighty

burden on the Unions—they must “negative every . . .

basis which might support” the law because we will

uphold it “if there is any reasonably conceivable state

of facts” supporting the classification. Heller, 509 U.S.

at 320; see Williamson v. Lee Optical, 348 U.S. 483, 487-88

(1955). This basis need not be in the record so long as

it finds “some footing in the realities of the subject ad-

dressed by the legislation.” Heller, 509 U.S. at 321.

Wisconsin was free to impose any of Act 10’s restric-

tions on all unions. See Ysursa, 555 U.S. at 359

(across-the-board payroll deduction limitations survive

rational basis review); Smith v. Ark. State Highway Emps.,

Local 1315, 441 U.S. 463, 464-65 (1979) (per curiam) (no

right to collective bargaining in general); see also Minn.

State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 287 (1984)

(stating, in the context of collective bargaining, “[w]hen

28 Nos. 12-1854, 12-2011 & 12-2058

government makes general policy, it is under no greater

constitutional obligation to listen to any specifically

affected class”). The Unions instead challenge as irrational

the division of public safety and general employees under

the Equal Protection Clause. They apparently recognize

that distinguishing certain unions that perform crucial

tasks survives rational basis review, but they emphatically

argue that the way Wisconsin divided the two groups

is irrational. According to the Unions, the only explana-

tion for the legislation is the extension of “rank political

favoritism” towards the unions that supported the gov-

ernor’s campaign. Specifically, they argue that under-

standing why Wisconsin classified state motor vehicle

inspectors as public safety employees but classified

prison guards, the University of Wisconsin Police, and

the Capitol Police as general employees requires “the

exercise of strained imagination.”

In doing so, the Unions invite us to speculate about the

legislature’s motive, at least in cases, they argue, where

the distinctions between the two classes are “so discon-

nected” from a proffered purpose and “so closely con-

nected” to an illegitimate purpose. This argument has

ostensible appeal, but it is unsupported by our case

law. Indeed, under rational basis review, we cannot

search for the legislature’s motive. See O’Brien, 391 U.S.

at 383 (“It is a familiar principle of constitutional law

that this Court will not strike down an otherwise con-

stitutional statute on the basis of an alleged illicit legisla-

tive motive.”). All that matters is whether the statute,

as written, furthers a legitimate government objective.

Once we find a “rational relationship between the

Nos. 12-1854, 12-2011 & 12-2058 29

disparity of treatment and some legitimate govern-

mental purpose,” the act passes constitutional scrutiny.

Srail v. Vill. of Lisle, 588 F.3d 940, 946 (7th Cir. 2009). For

our purposes, animus only invalidates a law when no

rational basis exists. Flying J Inc. v. City of New Haven,

549 F.3d 538, 546 (7th Cir. 2008) (holding “[a]nimus

comes into play only when [there is] no rational

reason or motive . . . for the injurious action taken by

the [legislature]”).

The Unions’ reliance on U.S. Department of Agriculture

v. Moreno does not support their position that animus is

relevant to our inquiry. 413 U.S. 528 (1973). In Moreno,

Congress amended the requirements for receiving food

stamps to exclude groups of unrelated people living

together, sharing common cooking facilities, and pur-

chasing food in common. Id. at 530. The Supreme

Court noted that Congress apparently attempted to

exclude “hippies” from fraudulently benefitting from

the system. Id. at 534. The Court rejected the Govern-

ment’s contention that Congress could rationally

conclude that unrelated people living together were

more likely to abuse the system because fraudulent

hippies could simply alter their living arrangements

by using separate kitchens or purchasing food individu-

ally, while unrelated households truly in need of the

program would lack the financial resources to make such

an arrangement. Id. at 535-38. The Court concluded that

Congress’s classification wholly failed to further the

government’s interest because those that abused the

system would continue to do so and those that Congress

intended to help would not—the amendment neither

30 Nos. 12-1854, 12-2011 & 12-2058

furthered the program’s original purpose of benefiting

needy families nor limited the fraud perpetrated by

non-needy, unrelated people living together. See id. at

538. Viewing Moreno in this manner makes the case no

different than any other rational basis case. Where, as in

Moreno, an act furthers no legitimate government

interest, it fails rational basis review. Moreno is not a

case, as the Unions urge, where the Court suggested

a statute would have passed rational basis review but

for animus towards a particular group.

As unfortunate as it may be, political favoritism is

a frequent aspect of legislative action. We said as much

in Hearne v. Board of Education, 185 F.3d 770, 775 (7th Cir.

1999). There, members of the Chicago Teachers Union

challenged on various constitutional grounds, including

the Equal Protection Clause, an act of the Republi-

can-dominated legislature that severely curtailed

Chicago teachers’ job security relative to teachers in

other parts of the state. Id. at 773. The unions argued,

in part, that the Republican legislature retaliated against

them for opposing Republicans in the previous election.

Id. We candidly remarked, “there is no rule

whereby legislation that otherwise passes the proper

level of scrutiny . . . becomes constitutionally defective

because one of the reasons the legislators voted for it

was to punish those who opposed them during an

election campaign.” Id. at 775. We went further stating,

“[i]ndeed one might think that this is what election cam-

paigns are all about: candidates run a certain platform,

political promises made in the campaign are kept (some-

times), and the winners get to write the laws.” Id.

Nos. 12-1854, 12-2011 & 12-2058 31

These sorts of decisions are left for the next election.

Accordingly, we must resist the temptation to search

for the legislature’s motivation for the Act’s classifica-

tions. We now turn to the three challenged provisions.

1. Collective Bargaining Limitations

Wisconsin is correct that the collective bargaining

limitations constitutionally promote flexibility in state

and local government budgets by providing public em-

ployers more leverage in negotiations. This alone,

however, is not enough to save the provision because

the differential treatment of public safety and general

employee unions must also be rational. On this point,

the district court upheld the classifications because Wis-

consin could rationally believe that Act 10’s passage

would result in widespread labor unrest, but also

conclude that the state could not withstand that unrest

with respect to public safety employees.

We agree that Wisconsin reasonably concluded that

the public safety employees filled too critical a role to

risk such a stoppage. Not only has the Supreme Court

previously held labor peace in certain instances is a

legitimate state interest, the Court found the interest

weighty enough to justify some impingement on the

free speech rights of employees who do not belong to a

union. See Ellis v. Bhd. of Ry. Clerks, 466 U.S. 435, 455-56

(1984); see also Knox v. Serv. Emps. Int’l Union, Local 1000,

132 S. Ct. 2277, 2290 (2012) (describing “labor peace” as

justification for public sector fair-share agreements). And

experience has borne out the state’s fears: in the wake of

Act 10’s proposal and passage, thousands descended on

32 Nos. 12-1854, 12-2011 & 12-2058

the state capital in protest and numerous teachers orga-

nized a sick-out through their unions, forcing schools to

close, while the state avoided the large societal cost of

immediate labor unrest among public safety employees.

Wisconsin was free to determine that the costs of

potential labor unrest exceeded the benefits of restricting

the public safety unions.

This conclusion is uncontroversial: other courts

have upheld distinctions between employee groups

with similar classifications. See, e.g., Am. Fed’n of Gov’t

Emps. v. Loy, 281 F. Supp. 2d 59, 65-66 (D.D.C. 2003)

(constitutional to prohibit TSA airport screeners from

collectively bargaining but permit other TSA employees

to do so), aff’d, 367 F.3d 932 (D.C. Cir. 2004); Margiotta v.

Kaye, 283 F. Supp. 2d 857, 864-65 (E.D.N.Y. 2003) (con-

stitutional to eliminate compulsory arbitration for

court security officers but not other police officers).

Indeed, when pressed at oral argument, the Unions’

counsel acknowledged that the state could draw rational

distinctions between public safety and general em-

ployees for this purpose. However, the Unions contend

the way in which Wisconsin separated the two groups

negates the legitimacy of the classifications. Fundamen-

tally, they argue Wisconsin should have either classified

motor vehicle inspectors as general employees or

placed prison guards, the University of Wisconsin

Police, and the Capitol Police in the public safety group.

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

Nos. 12-1854, 12-2011 & 12-2058 33

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 indis-

tinguishable 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 per-

mitted 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 acknowl-

edged 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. Never-

theless, the statute easily withstood rational basis

34 Nos. 12-1854, 12-2011 & 12-2058

review because “perfection is by no means required”

and the “provision does not offend the Constitution

simply because the classification is not made with mathe-

matical nicety.” Id. at 108 (internal quotations).

Thus, we cannot, as the Unions request, determine

precisely which occupations would jeopardize public

safety with a strike. Even if we accept that Wisconsin

imprudently characterized motor vehicle inspectors as

public safety employees or the Capitol Police as general

employees, invalidating the legislation on that ground

would elevate the judiciary to the impermissible role

of supra-legislature. The judiciary’s refusal to take on

this role explains why, applying rational basis review

in City of New Orleans v. Dukes, the Supreme Court hy-

pothesized reasons for upholding the preferential treat-

ment of pushcart vendors that worked for longer than

eight years even without a showing that they were

more qualified than newer vendors. 427 U.S. 297, 298, 305

(1976) (per curiam). Further, it explains why the Court,

in Lee Optical, upheld a law allowing only ophthalmo-

logists and optometrists to install prescription eye

lenses, even though opticians possessed similar skills. 348

U.S. at 486, 490-91. Distinguishing between public safety

unions and general employee unions may have been

a poor choice, but it is not unconstitutional. 1 1

11

Moreover, at least with respect to the prison guards, there is

an additional possible explanation for their exclusion from

the public safety category. The trust fund statute, which Act 10

(continued...)

Nos. 12-1854, 12-2011 & 12-2058 35

2. Recertification Requirements

Many of the justifications for the collective bargaining

limitation also apply to the recertification requirement.

As we mentioned, Act 10 exhibits a rational belief that

public sector unions are too costly for the state. The

recertification process furthers this interest by imposing

a recertification burden that impacts unions’ influence

over employees who are less passionate about union

representation. The Unions characterize this voting rule

as arcane, but the alternative to Act 10 would appear to

be the outright elimination of all general employee

unions. Instead, the legislature enacted a law which

presumes that when many employees abstain from a

recertification election, those employees are, at best,

unenthusiastic about the union’s representation. In

such cases, it is permissible for Wisconsin to rationally

11

(...continued)

cross-references, also excludes them. Thus, it would be under-

standable if the Wisconsin legislature used that list as a

starting point to choose those professions from which it

feared a retaliatory strike. Even if we agree with the Unions

that Act 10 should have placed prison guards in the public

safety category, “a legislature need not run the risk of losing

an entire remedial scheme simply because it failed, through

inadvertence or otherwise, to cover every evil that might

conceivably have been attacked.” McDonald v. Bd. of Election

Comm’rs, 394 U.S. 802, 809 (1969). In fact, the Court in Beach

Communications similarly suggested the disputed FCC distinc-

tion survived rational basis because the Commission adopted

it from an existing regulatory scheme. 508 U.S. at 317-18.

36 Nos. 12-1854, 12-2011 & 12-2058

conclude that the union is not worth maintaining

through an automatic recertification process—or, at least,

Wisconsin does not want to incur the cost of unions

which have uncommitted members.

Because the state clearly has an interest in the

recertification requirement, the rational basis for

applying it only to general employees flows from the

justification for differentially applying the collective

bargaining limits. The provision may tend to weaken

unions, and Wisconsin rationally feared back-

lash—either immediate or eventual (in the event a public

safety union later failed to garner recertification sup-

port)—if it applied the provision to the public safety

unions. The Unions raise the same sorts of arguments

against this provision that they did against the collective

bargaining provision—that it was irrational to include

the motor vehicle inspectors but exclude safety-related

unions like the Capitol Police. For the reasons in the

previous section, these arguments are unavailing.

3. Payroll Deduction Prohibition

As we explained in Part II.A., because the payroll

deduction prohibition does not implicate the First Amend-

ment, we analyze this provision under rational basis

review.12 Wisconsin could have rationally eliminated all

12

The district court engaged in two separate rational basis

analyses, one under the Equal Protection Clause and another

(continued...)

Nos. 12-1854, 12-2011 & 12-2058 37

payroll deductions. Ysursa, 555 U.S. at 359 (noting that “the

State is not constitutionally obligated to provide payroll

deductions at all”). And, as was the case with the

other provisions, Wisconsin’s differential treatment of

general and public safety unions is supported by its

concern for labor peace among the public safety em-

ployees. The Unions again rely on the alleged “gerryman-

dering” of the public safety employee definition to chal-

lenge the State’s justifications for Act 10. But these ar-

guments fail for the same reasons stated above—such

line-drawing is not for the courts.

The Unions also label as “wholly implausible” the

legislature’s fear that a payroll prohibition on public

safety employees would trigger an illegal strike. But

rational basis review does not require the state to

“produce evidence to sustain the rationality” of the law,

provided the law has “some footing in the realities of the

subject addressed by the legislation.” Heller, 509 U.S. at

320-21. The state’s fear is rational, particularly considering

the controversy surrounding passage of Act 10 and the

Unions’ own admission before the district court that the

12

(...continued)

under the First Amendment. Rational basis review, however,

is not a level of scrutiny under the First Amendment but

merely the residual level of scrutiny that courts apply to all

laws not involving a suspect class or infringing a funda-

mental right. See Ezell v. City of Chi., 651 F.3d 684, 701

(7th Cir. 2011). Thus, only one rational basis analysis is neces-

sary.

38 Nos. 12-1854, 12-2011 & 12-2058

effect of the payroll prohibition would be “catastrophic.”

Consequently, the payroll dues prohibition survives

rational basis review.

C. The District Court Did Not Err in Denying Pro-

posed Intervenors’ Motion to Intervene

The Employees filed a motion to intervene as of right

in support of the state.1 3 See Fed. R. Civ. P. 24(a)(2). A

party has a right to intervene when: (1) the motion to

intervene is timely filed; (2) the proposed intervenors

possess an interest related to the subject matter of the

action; (3) disposition of the action threatens to impair

that interest; and (4) the named parties inadequately

represent that interest. Ligas ex rel. Foster v. Maram, 478

F.3d 771, 773 (7th Cir. 2007). The Unions oppose interven-

tion and challenge only two of these elements: the relation-

ship between the Employees’ interest and the sub-

ject-matter of the suit, and the adequacy of the state in

representing the Employees’ interests. This Court applies

de novo review to the district court’s determination on

these two elements, id., neither of which the Employees

satisfy.

13

The Employees also sought permissive intervention. The

district court did not specifically address that argument,

though, and the Employees have not raised permissive inter-

vention on appeal.

Nos. 12-1854, 12-2011 & 12-2058 39

1. Direct and Substantial Interest

Intervention as of right requires a “direct, significant[,]

and legally protectable” interest in the question at issue in

the lawsuit. Keith v. Daley, 764 F.2d 1265, 1268 (7th Cir.

1985). That interest must be unique to the proposed

intervenor. Id. Moreover, the question of “[w]hether an

applicant has an interest sufficient to warrant interven-

tion as a matter of right is a highly fact-specific deter-

mination, making comparison to other cases of limited

value.” Sec. Ins. Co. of Hartford v. Schipporeit, Inc., 69

F.3d 1377, 1381 (7th Cir. 1995).

The Employees assert they have a First Amend-

ment interest in not paying compulsory union fees and

in rejecting the union as their state-imposed bargaining

agent. However, the Employees largely acknowledge

that Abood v. Detroit Board of Education and its progeny

settle this question. 431 U.S. 209 (1977). There, the Court

held that a public sector union could recover expenses

related to collective bargaining from nonmembers even

though they could not force nonmembers to fund political

or ideological union projects. Id. at 234. Although this

payment “significant[ly] impinge[s] on First Amendment

rights” of nonmember employees, the governmental

interest in “industrial peace” justifies this intrusion on

free speech. Ellis, 466 U.S. at 455-56; see also Knox, 132

S. Ct. at 2290 (describing “labor peace” as justification for

public sector fair-share agreements). Thus, under Abood

and Ellis, the state could properly compel the Employees

to pay union charges under fair-share agreements, pre-

cisely as it did before passage of Act 10.

40 Nos. 12-1854, 12-2011 & 12-2058

The Employees do not dispute any of this, nor do

they assert any constitutional right allowing them to

escape payment of the union expenses that Abood and

its progeny have allowed. Instead, they argue that Act 10

“changes the constitutional calculus” underlying this

First Amendment analysis. According to the Employees,

when the state passed Act 10, it abolished “industrial

peace” as a compelling interest that justified the First

Amendment concerns of dissenting employees subject

to fair-share agreements. This new constitutional

calculus, they continue, “opens the door for Employees to

directly assert and protect their nascent First Amendment

claims” because “[t]here no longer are any sufficiently

weighty state interests to justify compromising the

First Amendment interests recognized in cases such as

Abood.” Even if that were true, the Employees’ First

Amendment interests have little to do with the claims

raised by the Unions, which focus on the Unions’ free

speech rights. The question of the Employees’ free speech

rights is, as the district court explained, tangential.

2. Adequacy of Representation

Even assuming a direct interest in the litigation, the

state adequately represents the interests of the Employees.

The district court applied a deferential standard re-

quiring gross negligence or bad faith to render the state’s

representation inadequate. However, that standard

applies only “when the representative party is a gov-

ernmental body charged by law with protecting the

interests of the proposed intervenors [because] the repre-

sentative is presumed to adequately represent their

Nos. 12-1854, 12-2011 & 12-2058 41

interests unless there is a showing of gross negligence

or bad faith.” See Ligas, 478 F.3d at 774. The state is not

charged by law with protecting the interests of the Em-

ployees so this standard does not apply. Nevertheless,

the state still adequately represented the Employees’

interests.

Although intervention requires only a “minimal” show-

ing of inadequate representation, see Trbovich v. United

Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972), when

the prospective intervenor and the named party have

the same goal, a “presumption [exists] that the repre-

sentation in the suit is adequate,” Shea v. Angulo, 19 F.3d

343, 347 (7th Cir. 1994). The prospective intervenor

then must rebut that presumption and show that some

conflict exists. Meridian Homes Corp. v. Nicholas W.

Prassas & Co., 683 F.2d 201, 205 (7th Cir. 1982). Here, the

Employees and the state share the same goal: protecting

Act 10 against the Unions’ constitutional challenge. The

Employees have admitted as much, declaring that “[i]f

Act 10 is declared valid, [the] Employees’ First Amend-

ment rights are completely vindicated.” Thus, by their

own admission, the Employees have exactly the same

goal as the state. Yet they identify no conflict rendering

the state’s representation inadequate. Instead, Em-

ployees rely largely on post-hoc quibbles with the state’s

litigation strategy. This does not provide the conflict

of interest necessary to render the state’s representa-

tion inadequate.14

14

Nor does the Employees’ long list of cases illustrating that

(continued...)

42 Nos. 12-1854, 12-2011 & 12-2058

In summation, the district court properly denied the

Employees’ motion to intervene as of right. They did not

articulate a direct, substantial, and legally cognizable

interest in the litigation, nor was the state an inadequate

representative of their interests. Thus, the district court

below, and this Court on appeal, does not need to

consider their arguments.

III. Conclusion

For the foregoing reasons, we A FFIRM the district

court’s ruling that the collective bargaining provisions

satisfy rational basis, R EVERSE the district court’s

rulings that the recertification provisions and payroll

deduction provisions do not satisfy rational basis,

and A FFIRM the district court’s denial of proposed

intervenors’ motion to intervene.

14

(...continued)

such intervention happens “frequently” in this Circuit. None

of these cases directly addresses the propriety of the interven-

tion in those cases. Instead, each merely recognizes in passing

that the intervention occurred at some prior point in the

procedural history of the case.

Nos. 12-1854, 12-2011 & 12-2058 43

H AMILTON, Circuit Judge, concurring in the judgment

in part and dissenting in part. Elections have conse-

quences, as this case reminds us. Although the rationales

offered for the State’s different treatment of collective

bargaining for “public safety” employees and “general”

employees seem flimsy to me, the highly deferential

rational-basis review requires that we uphold the

principal provisions of Wisconsin’s Act 10 against equal

protection challenges. This is particularly true where

the federal Constitution would not prevent the State

from removing all collective bargaining rights of public

employees. I therefore join the portion of the judgment

upholding the new statutory limits on the subject

matters of collective bargaining for the general em-

ployees. For essentially the same reasons, I also concur

in the portion of the judgment upholding the unprece-

dented recertification provisions for unions representing

“general” employees, although the reasons for those pro-

visions were not presented to the district court. For

the reasons explained in Part II-C of the majority’s

opinion, I also concur with the affirmance of the district

court’s denial of the motion to intervene.

I respectfully dissent, however, from the portion of

the court’s decision upholding Wisconsin’s selective

prohibition on payroll deductions for dues for some

public employee unions but not others. The district court

correctly held that the new law’s selective prohibition

on payroll deductions violates the First Amendment

rights of the plaintiff unions and their members. It is

well established that a government employer creates

what First Amendment doctrine calls a “nonpublic

44 Nos. 12-1854, 12-2011 & 12-2058

forum” when it establishes a system for employee

payroll deductions for payment to various third parties,

including labor unions. It is equally well established

under the First Amendment that the public employer

may not engage in political or viewpoint discrimination

when choosing which payroll deductions are allowed.

After close examination of the relevant evidence, the

district court correctly found that Wisconsin’s new law

amounts to unconstitutional viewpoint discrimination.

The majority attempts to avoid this result by portraying

the new law as merely denying plaintiffs a “subsidy” for

speech. As explained below, that approach fails to come

to grips with the applicable First Amendment doctrine

and precedents, as well as the evidence showing view-

point discrimination in the new and selective prohibition.

Part I-A of this opinion summarizes the established

First Amendment framework for nonpublic forum

analysis and its application to the union dues withholding

provisions. Part I-B addresses the requirement of view-

point neutrality and shows that we cannot end our

analysis when we find merely facial neutrality. Part I-C

then reviews the evidence showing that the selective

limits on payroll deductions here violate the First Amend-

ment. Finally, Part II explains my reasons for concurring

in the judgment upholding the annual recertification

provisions.

Nos. 12-1854, 12-2011 & 12-2058 45

I. The Discriminatory Limits on Payroll Deductions of

Union Dues

A. Payroll Deductions as a “Nonpublic Forum”

On the payroll deduction issue, let’s start with the

common ground. My colleagues and I agree, as all the

parties in the case do, that the federal Constitution

does not require the State to “subsidize” the plaintiff

unions by continuing to provide payroll deductions for

union dues. The majority’s emphasis on this uncontrover-

sial point misses the real point of the plaintiffs’ First

Amendment claim. See ante at 9-15. Wisconsin

has chosen to create such a system of payroll deduc-

tions. The new law keeps that system in place for “public

safety” employees and their unions but denies access to

that same system for all other public employees and

their unions. It’s that discrimination that causes the

problem here.

The most relevant corner of First Amendment doctrine

here is the law applicable to a “nonpublic forum.” When

a government is not required to open its property for

expressive or communicative purposes, but chooses to

do so for limited purposes, it has created a nonpublic

forum. The general First Amendment standards for a

nonpublic forum are settled: “Control over access to

a nonpublic forum can be based on subject matter and

speaker identity so long as the distinctions drawn are

reasonable in light of the purpose served by the forum

and are viewpoint neutral.” Cornelius v. NAACP Legal

Defense & Educ. Fund, 473 U.S. 788, 806 (1985), quoted

46 Nos. 12-1854, 12-2011 & 12-2058

in Lamb’s Chapel v. Center Moriches Union Free School

Dist., 508 U.S. 384, 392-93 (1993).

As the term suggests, the nonpublic forum may be a

literal forum, such as a place where the government

provides shelter, heat, light, and security, such as

meeting space in a public school in Lamb’s Chapel. See

also, e.g., Grossbaum v. Indianapolis-Marion County Bldg.

Auth., 63 F.3d 581, 586 (7th Cir. 1995) (public building

lobby was nonpublic forum for holiday seasonal dis-

plays). First Amendment precedents also make clear,

though, that a nonpublic forum may be less literal, such

as a charitable campaign where the government pro-

vides an audience and subsidizes both communications

and even payroll deductions. In fact, Lamb’s Chapel, which

involved a literal forum, followed Cornelius. That case

held that the Combined Federal Campaign, which solicits

charitable donations from federal employees through

payroll deductions, is a nonpublic forum. 473 U.S. at 805-

06. Accord, e.g., Davenport v. Washington Educ. Ass’n, 551

U.S. 177, 188-89 (2007) (applying nonpublic forum re-

quirements of viewpoint neutrality and reasonableness

to public employee union dues withholding system);

Pilsen Neighbors Community Council v. Netsch, 960 F.2d

676, 685-86 (7th Cir. 1992) (state program for charitable

gifts by payroll deduction was a nonpublic forum). See

also Rosenberger v. Rector and Visitors of Univ. of Virginia,

515 U.S. 819, 830 (1995) (state university’s fund for

student organizations was nonpublic forum); Choose Life

Illinois Inc. v. White, 547 F.3d 853, 865 (7th Cir. 2008)

(specialty license plates were nonpublic forum); Christian

Legal Society v. Walker, 453 F.3d 853, 865-66 (7th Cir. 2006)

Nos. 12-1854, 12-2011 & 12-2058 47

(following Rosenberger, applying nonpublic forum analysis

to state university fund for student organization).

The majority opinion proceeds as if there were an

important difference between the “nonpublic forum”

cases, such as Cornelius, Davenport, and Rosenberger, on

one hand, and the “subsidy” line of cases. See ante at

9-15, citing Regan v. Taxation with Representation of Wash-

ington, 461 U.S. 540 (1983) (“subsidy” case); Ysursa v.

Pocatello Educ. Ass’n, 555 U.S. 353 (2009) (another “subsidy”

case); and Rosenberger (a “nonpublic forum” case). There

is no important difference. What is a nonpublic forum

if not a subsidy? The government is not required to

provide any subsidy. Nor is it required to provide the

forum, but if it does, there is likely to be some form of

at least indirect subsidy, whether in the form of light

and heat for a literal forum or modest administrative

costs for payroll deductions. Regardless of the preferred

label, the essential requirements are the same: a gen-

erous standard of reasonableness but a prohibition on

viewpoint discrimination, as the majority itself acknowl-

edges. Ante at 15.

B. Nonpublic Forums Require Genuine Viewpoint Neutrality

So we have a nonpublic forum, which means that the

State’s selective limits on payroll dues deductions

must satisfy the First Amendment requirements for a

nonpublic forum, including viewpoint neutrality. As

Cornelius, Lamb’s Chapel, Rosenberger, and many other

cases show, “[s]peech restrictions in a nonpublic forum

48 Nos. 12-1854, 12-2011 & 12-2058

must not discriminate on the basis of viewpoint.” Christian

Legal Society v. Walker, 453 F.3d 853, 865 (7th Cir. 2006).

The requirement of viewpoint neutrality in handling

public employees’ payroll deductions for union dues

should not be controversial. Suppose, for example, that a

state set up a system allowing payroll deductions

for employees’ political contributions to the state Demo-

cratic Party but not to any other party. We can all agree

that such a system would violate the First Amendment.

And that would be true even though the state might

argue that it was not required to “subsidize” the Republi-

can Party or others. A step closer to this case, suppose a

state set up a system allowing payroll deductions of

dues for unions that supported the Democratic Party

but not for unions with a different political bent. Just as

surely that system would also violate the First Amend-

ment, again despite the fact that the state would not be

required to provide such a subsidy or service for any

unions.

Thus, whether the State is understood to be providing

benefits or subsidizing speech, the First Amendment

governs the State’s decisions that limit access to nonpublic

forums and prohibits granting or denying access based

on the differing viewpoints of particular groups. “These

principles provide the framework forbidding the State

to exercise viewpoint discrimination, even when the

limited public forum is one of its own creation.” Rosen-

berger, 515 U.S. at 829 (“Once it has opened a limited

forum, however, the State must respect the lawful bound-

aries it has itself set.”); see also Elena Kagan, The

Nos. 12-1854, 12-2011 & 12-2058 49

Changing Face of First Amendment Neutrality: R.A.V. v. St.

Paul, Rust v. Sullivan and the Problem of Content-Based

Underinclusion, 1992 Sup. Ct. Rev. 29, 43 (1996) (“The

government may not use its broad discretion over the

property it owns to advantage some viewpoints at

the expense of others . . . .”).1

As the majority points out, on its face, Wisconsin’s Act 10

seems viewpoint-neutral: public safety unions can have

dues withheld from paychecks, while other public em-

ployee unions cannot. Facial neutrality, however, is not

the end of the matter. The real question here is whether

the new law violates — in fact — the well-established

requirement of viewpoint neutrality. “Distinguishing

between a permissible content-based restriction and

an impermissible viewpoint-based restriction is not

always easy.” Choose Life Illinois, Inc. v. White, 547 F.3d

853, 865 (7th Cir. 2008).

The Supreme Court has made clear that consideration

of viewpoint neutrality or bias does not end with a super-

ficial look at the face of the state’s policy. In Cornelius,

for example, the federal government argued that its

exclusion of advocacy groups from the Combined

Federal Campaign charity drive was a viewpoint-

neutral rule designed to avoid disruption of federal

workplaces and ensure the success of the campaign. The

1

The Supreme Court used the term “limited” public forum

in Rosenberger to describe what is more commonly called a

“nonpublic” forum, as shown in Rosenberger’s discussion

of Cornelius and Lamb’s Chapel. See 515 U.S. at 829.

50 Nos. 12-1854, 12-2011 & 12-2058

Supreme Court described those as “facially neutral and

valid justifications” for the rule, 473 U.S. at 812, but that

was not the end of the case. The Court also noted that

other evidence cast doubt on the genuineness of the

stated concerns, such as the inclusion of other groups in

the campaign that did not seem to fit the stated criteria.

There was no requirement that rules limiting access to

a nonpublic forum be “precisely tailored,” but evidence

of a lack of fit between the stated rules and the actual

practice gave the Court enough pause to order a remand

to pursue the issue of viewpoint neutrality or bias:

“While we accept the validity and reasonableness of

the justifications offered by petitioner for excluding

advocacy groups from the CFC, those justifications

cannot save an exclusion that is in fact based on the

desire to suppress a particular point of view.” Id. at 812-13,

citing Schaumburg v. Citizens for a Better Environment,

444 U.S. 620, 634 (1980).

Despite the majority’s disclaimer in its footnote 7, this

passage in Cornelius not only encourages but actually

directs lower courts to consider claims that an invidious,

viewpoint-biased motive lies behind a facially neutral

restriction on access to a nonpublic forum. See also

Southworth v. Board of Regents of Univ. of Wisconsin System,

307 F.3d 566, 594 (7th Cir. 2002) (finding that facially

neutral classifications actually favored non-political

organizations thereby resulting in viewpoint discrimina-

tion); Pilsen Neighbors Community Council v. Netsch, 960

F.2d at 686-88 (finding no First Amendment violation

with Illinois’s system for charitable payroll deductions

where criteria were viewpoint-neutral both facially and

as applied).

Nos. 12-1854, 12-2011 & 12-2058 51

This requirement of genuine viewpoint neutrality, both

facially and as applied, is entirely consistent with the

Supreme Court’s decision in Ysursa v. Pocatello Education

Ass’n, 555 U.S. 353 (2009), upon which the majority relies

so heavily. The issue the Supreme Court faced in Ysursa

was whether the state of Idaho could prohibit local gov-

ernments from taking payroll deductions for any

political activities, defined broadly enough to include

contributions to unions’ political action committees. The

Court upheld the state law, reasoning primarily that the

prohibition was evenhanded and served the state’s legiti-

mate purpose of avoiding the reality or appearance

of government favoritism or entanglement with partisan

politics. 555 U.S. at 360.

Separate opinions by Justices Stevens, Souter, and

Breyer questioned whether the prohibition was in fact

evenhanded and viewpoint-neutral. The Court addressed

their concern in a lengthy footnote. First, the Court ex-

plained that the plaintiffs had not tried to establish view-

point discrimination in the lower courts. The Court then,

in a comment directly applicable to this case, added that

if the prohibition were not enforced evenhandedly in

the future, “plaintiffs are free to bring an as-applied

challenge.” Id. at 361 n.3, citing National Endowment for

the Arts v. Finley, 524 U.S. 569, 587 (1998) (“even in the

provision of subsidies, the Government may not ‘ai[m]

at the suppression of dangerous ideas’ ”), quoting in

turn Regan v. Taxation with Representation of Washington,

461 U.S. at 550.

In other words, Ysursa applied First Amendment doc-

trine to uphold a broad ban on payroll deductions for

52 Nos. 12-1854, 12-2011 & 12-2058

union dues that did not discriminate on the basis of

viewpoint. That much is common ground in this case. But

on the contested issue in this case, the more important

point is that Ysursa reinforced the established law that

viewpoint discrimination in a government’s limits on

access to a payroll deduction system can violate the

First Amendment. 555 U.S. at 361 n.3. This remains true

whether one prefers to speak in terms of a subsidy or a

nonpublic forum. Ysursa simply did not decide an issue

like the one we face here, whether Act 10’s facially

neutral but selective limits on access to public payroll

deductions are actually viewpoint-neutral or not.2

C. The Wisconsin Law and Viewpoint Discrimination

Following the teaching of Cornelius and the other

cases discussed above, I turn now to Wisconsin’s Act 10

and the actual effects of the restrictions on access to

payroll deductions, taking the unions’ evidence and the

2

Toledo Area AFL-CIO Council v. Pizza, a case cited by the

majority as a “subsidy” case, recognized this important differ-

ence. In upholding a ban on wage checkoffs, the Sixth

Circuit said it was “significant” that the prohibition was

universal in its application: “The provision does not single

out political contributions to only certain parties, candidates

or issues. All Ohio public employees are denied the benefits

that might be derived from such publicly-administered pro-

grams, regardless of the content of their political views or

their party affiliation.” 154 F.3d 307, 319 (6th Cir. 1998). The

same cannot be said in this case.

Nos. 12-1854, 12-2011 & 12-2058 53

State’s explanations in turn. Despite the superficial, facial

neutrality as to viewpoint, the plaintiffs offered persua-

sive evidence that the different treatment of “public

safety” unions and “general employee” unions is in

reality an unconstitutional exercise in viewpoint dis-

crimination. The majority asks the right question but

then averts its eyes from the evidence needed to answer

it, saying that plaintiffs’ arguments “require peering

past the text of the statute to infer some invidious legisla-

tive intention. We decline this invitation.” Ante at 19-20.

“Peering past the text” is exactly what we are

supposed to do here. “The existence of reasonable

grounds for limiting access to a nonpublic forum, how-

ever, will not save a regulation that is in reality a facade

for viewpoint-based discrimination.” Cornelius, 473 U.S.

at 811. That’s what the Supreme Court taught in

Cornelius, as well as Ysursa, and Lamb’s Chapel. Let’s turn

to that evidence.3

3

To defend its decision not to inquire into the possibility of

viewpoint discrimination beyond the face of the statute, the

majority relies on inapposite “time, place, and manner” cases,

observing that disparate impact on one viewpoint does not

“transform a facially neutral statute into a discriminatory

one.” Ante at 20-21, citing Hill v. Colorado, 530 U.S. 703

(2000), and Madsen v. Women’s Health Center, Inc., 512 U.S. 753

(1994). The “time, place, and manner” doctrine does not justify

a refusal to consider genuine evidence of viewpoint bias in

access to a nonpublic forum. Time, place, and manner restric-

tions must be content neutral and narrowly tailored to serve

(continued...)

54 Nos. 12-1854, 12-2011 & 12-2058

1. Plaintiffs’ Evidence of Viewpoint Discrimination

Consistent with the Supreme Court’s teachings, the

plaintiffs rely on three points that together show the

State’s proffered rationale is a pretext for viewpoint

(here, political) discrimination. The first is the close

correlation between various unions’ political endorse-

ments in the 2010 Wisconsin governor’s race and their

ability to continue payroll deductions. The second is the

flimsiness of the State’s proffered rationales for drawing

the line as it did between public safety and general em-

ployees and for barring payroll deductions of union

dues for all but public safety employees. The third is

3

(...continued)

a significant government interest, and must leave ample

alternative channels of communication. Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989). In effect, such laws restrict

particular conduct, as in Hill, which regulated speech within

eight feet of another person without that person’s consent.

530 U.S. at 707. This is not the case in which to explore all the

First Amendment doctrinal nuances, but these other require-

ments make viewpoint discrimination more difficult to

achieve with time, place, and manner restrictions. The Supreme

Court itself has distinguished the two lines of doctrine. See

Madsen, 512 U.S. at 763-64 (“the injunction issued in this case

does not demand the level of heightened scrutiny set forth in

Perry Ed. Ass’n, 460 U.S. at 45,” which was a nonpublic forum

case). We should follow the nonpublic forum cases and

consider the evidence showing that a facially neutral statute

in fact is being used to limit access to an important nonpublic

forum based on political viewpoint.

Nos. 12-1854, 12-2011 & 12-2058 55

the overtly partisan political explanation for the Act

that was offered in the legislative debate.

a. Political Endorsements of the Affected Unions

Five unions representing public sector employees

endorsed then-candidate Walker for governor during the

2010 campaign: the Wisconsin Troopers Association,

whose members are state troopers and motor vehicle

inspectors; the Milwaukee Police Association; the Mil-

waukee Professional Fire Fighters Association; the West

Allis Professional Police Association; and the Wisconsin

Sheriffs and Deputy Sheriffs Association Political Action

Committee. The members of all five organizations are

included in the new law’s “public safety” classification.

They all retained their full collective bargaining rights,

including payroll deductions for union dues and fair

share payments.

The net effect is that all public employees represented

by unions that endorsed Governor Walker continue to

enjoy collective bargaining, and those unions continue

to benefit from payroll deductions. On the other hand,

nearly all members of the public employee unions that

did not endorse Governor Walker are categorized as

“general” employees. Their bargaining rights have been

reduced to a hollow shell and payroll deductions are

not available for their union dues. The correlation is

admittedly not perfect — some other local police and

fire unions did not endorse Governor Walker but are

“public safety” employees — but it’s very strong. As the

district court noted, the “fact that none of the public

56 Nos. 12-1854, 12-2011 & 12-2058

employer unions falling into the general category

endorsed Walker in the 2010 election and that all of the

unions that endorsed Walker fall within the public safety

category certainly suggests that unions representing

general employees have different viewpoints than those

of the unions representing public safety employees.”

Wisconsin Educ. Ass’n Council v. Walker, 824 F. Supp. 2d

856, 873 (W.D. Wis. 2012).

b. The State’s Explanations

Of course, the correlation between political allegiance

to the governor and continued access to payroll

deductions could be just a coincidence, a result of a

reasonable policy decision to treat public safety em-

ployees differently than other public employees. Legisla-

tion is not unconstitutional just because it favors political

supporters or harms opponents. See Hearne v. Board of

Educ. of City of Chicago, 185 F.3d 770, 775 (7th Cir. 1999).

The State argues that public safety employees were

treated more generously because they were in a position

to strike (albeit illegally) and thereby to undermine

public safety.

A closer look undermines that explanation. The state

employs many police officers, firefighters, and others

with important public safety responsibilities who are

excluded from the “public safety” classification of

Act 10. If the State’s proffered explanation for treating

“public safety” employees differently were actually true,

it would be hard to understand why that explanation

Nos. 12-1854, 12-2011 & 12-2058 57

would not apply as well to police officers at the

University of Wisconsin, Capitol Police officers, the

State’s thousands of correctional and probation officers,

and many others with important public safety duties.

Instead, those employees, whose unions did not endorse

Governor Walker, are treated as general employees, and

their unions do not benefit from payroll deductions.

As the district court explained, one particular gerry-

mander of the legislative classifications illustrates the

problem well. The Wisconsin Law Enforcement Associa-

tion (WLEA) has been the collective bargaining repre-

sentative for state troopers, other employees of the Wis-

consin State Patrol, and many other law enforcement

personnel who work for the state, including the Capitol

Police and the University of Wisconsin Campus Police.

Within the WLEA, only the Wisconsin Troopers Associa-

tion (WTA), which is the lobbying group for employees

of the Wisconsin State Patrol, endorsed Governor

Walker in the 2010 campaign. The WTA includes both

state troopers and state motor vehicle inspectors. The new

law was drawn up to treat all WTA members — motor

vehicle inspectors as well as state troopers — as favored

“public safety” employees. But the law treats all other

groups within the WLEA, and recall that it is the

Wisconsin Law Enforcement Association, including

the Capitol and University of Wisconsin Police, as only

“general” employees.

Perhaps a strike by motor vehicle inspectors might

threaten the breakdown of public order and state gov-

ernment, but it’s hard to see how. It’s especially hard to

58 Nos. 12-1854, 12-2011 & 12-2058

see how the threat of a strike by motor vehicle

inspectors could reasonably be deemed more significant

than a strike by, say, correctional officers or many other

law enforcement officers excluded by the new law. The

district court recognized this as well, noting that in the

context of the dues withholding provision and annual

recertification requirements, “the relationship between

the interest of avoiding strikes and these other

challenged provisions is substantially more tenuous.”

Wisconsin Educ. Ass’n Council v. Walker, 824 F. Supp. 2d

at 868. In the context of employment discrimination

law, such an implausible explanation is treated as a

pretext, which allows a reasonable inference of unlawful

discrimination. E.g., Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133 (2000). That’s what we have here, too.

The State’s and majority’s reasoning is even harder

to understand when we consider the State’s own

analysis governing the classifications. The Deputy Secre-

tary of the Wisconsin Department of Administration

assisted in developing and analyzing Act 10 and ex-

plained the line-drawing process in an affidavit. She was

in part responsible for “planning for contingencies

arising from the enactment of Act 10 including potential

job actions and strikes.” As part of this analysis, she

assessed which departments provided “critical state

services,” the interruption of which would threaten

public safety. The assessment concluded that the De-

partment of Corrections and its staff were crucial.

It further found that even with the National Guard’s

standing plan to replace the Department of Corrections

Nos. 12-1854, 12-2011 & 12-2058 59

if necessary, “there were insufficient State resources”

to “fulfill the backfill staffing requirements to ensure

the continuation of critical services in the event of a

mass job action.” Supp. App. at 130-32.4 Despite these

findings, the prison guards, who the record shows are

crucial to public safety and have a history of striking,

were classified as “general” employees and not as

“public safety” employees. Their union did not support

Governor Walker in the election.

The internal analysis also “identified a probable gap

in staffing for state building and staff security in the

event of large scale protests.” Id. at 132. Yet the Capitol

Police were also categorized as “general employees”

deemed not critical to public safety in the event of a

mass action. That mass action did in fact occur on the

steps of the very Capitol that, after the passing of Act 10,

risked being understaffed in the event of a strike in re-

sponse to Act 10.

I recognize, of course, that when governing access to

a nonpublic forum, the State is not required to draw

these lines perfectly, see Cornelius, 473 U.S. at 808-09,

but this internal analysis clearly undermines the

viewpoint-neutral justifications offered by the State. As

4

To avoid the deposition of the Deputy Secretary, the State

moved to withdraw this affidavit in the district court. Plaintiffs

did not oppose this withdrawal and the district court

therefore granted the request but reserved the right to rely on

it to the extent it was relied upon by plaintiffs. Wisconsin

Educ. Ass’n Council v. Walker, 824 F. Supp. 2d at 862.

60 Nos. 12-1854, 12-2011 & 12-2058

Justice Kagan has written, “the looser the fit between

the interest asserted and the contours of the law, the

greater the cause for suspicion. At a certain point — when

the asserted interest is insubstantial or when it does not

fit the scope of the challenged regulation — the usual

presumption of proper purpose topples; there is reason,

then, to think that the law, though content neutral, has

been tainted by impermissible purpose.” Elena Kagan,

Private Speech, Public Purpose: The Role of Governmental

Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413,

455 (1996). The State has reached that point with the

selective payroll deduction provisions of Act 10.

The State also argues more specifically that the

selective prohibition on payroll deductions for union

dues serves the purpose of “favoring employee choice.”

This explanation is so specious that it only adds

further support for the district court’s conclusion that

the State’s explanations are pretexts. Under Act 10,

general employees cannot be required to pay union dues

or fair share payments. Even if payroll deductions

were still available, they would be available only from

those union members who voluntarily chose to pay dues

in that way. Denying those employees the ability to

make voluntary payments through payroll deductions

does not even arguably promote “employee choice”

for those employees.

By comparison, the State is continuing the practice of

payroll deductions for the favored public safety unions

that supported Governor Walker. Those unions are still

entitled to require payment of union dues or fair share

Nos. 12-1854, 12-2011 & 12-2058 61

payments from all members of the bargaining unit. The

continued payroll deductions for those unions therefore

include entirely involuntary payments by employees

who are not union members and who object to the pay-

ments and payroll deductions. If “employee choice” were

actually the favored policy, the State’s selective decision

to prohibit voluntary payroll deductions for the benefit

of some unions while still enforcing involuntary

payroll deductions for the favored unions is difficult

to understand.

c. Legislative Debate

In the district court the State relied solely on an argu-

ment that the First Amendment simply did not apply to

its decisions about payroll deductions. That defense

was mistaken for reasons already explained. In con-

sidering the payroll deduction provisions, the district

court noted “the only justification in the record for prohib-

iting dues withholding for general employees is limiting

the speech of that class of unions. During the intense

legislative debate on what became Act 10, Senate

Majority Leader Scott Fitzgerald commented that ‘[i]f we

win this battle, and the money is not there under the

auspices of the unions, certainly what you’re going to

find is that President Obama is going to have a . . . much

more difficult time getting elected and winning the state

of Wisconsin.’ ” Wisconsin Educ. Ass’n Council v. Walker,

824 F. Supp. 2d at 875-76 n.17 (ellipsis in original).

Helping one side win elections is certainly a rational

reason for the payroll deduction limits, and the limits

62 Nos. 12-1854, 12-2011 & 12-2058

were designed well to serve that purpose. But under the

First Amendment, of course, it’s not a permissible reason

for restricting access to the nonpublic forum of payroll

deductions. It’s transparent viewpoint discrimination.

So the State and the majority need to sweep the majority

leader’s candid statement under a rug.

The argument against relying on the majority leader’s

statement is the familiar one about legislative motive

exemplified by United States v. O’Brien, where the

Supreme Court upheld a law making it a federal crime

to burn a draft card: “Inquiries into congressional

motives or purposes are a hazardous matter. . . . What

motivates one legislator to make a speech about a

statute is not necessarily what motivates scores of others

to enact it, and the stakes are sufficiently high for us to

eschew guesswork. We decline to void essentially on

the ground that it is unwise legislation which Congress

had the undoubted power to enact and which could

be reenacted in its exact form if the same or another

legislator made a ‘wiser’ speech about it.” 391 U.S. 367,

383-84 (1968).

As a general rule, the O’Brien point is certainly correct,

and if the majority leader’s speech were the only

evidence of viewpoint discrimination, it would be

difficult to find a First Amendment violation based

solely on that one speech. But neither O’Brien nor many

other Supreme Court decisions require that we wear

blinders to block our view of reality when we examine

a serious claim that the legislature chose to engage in

unconstitutional viewpoint discrimination, especially

Nos. 12-1854, 12-2011 & 12-2058 63

when that evidence of legislative purpose corroborates

other, more familiar and comfortable forms of evidence.

“In short, the relevance of motive to constitutional adjudi-

cation varies by context. No automatic cause of action

exists whenever allegations of unconstitutional intent

can be made, but courts will investigate motive when

precedent, text, and prudential considerations suggest

it necessary in order to give full effect to the constitu-

tional provision at issue.” Grossbaum v. Indianapolis-

Marion County Bldg. Auth., 100 F.3d 1287, 1294 (7th Cir.

1996). “Motive may thus be a vital piece of evidence

that courts must use to judge the viewpoint-neutrality

of the regulation.” Id. at 1298; see also Elena Kagan,

Private Speech, Public Purpose: The Role of Governmental

Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. at

442 (reading O’Brien to stand for “a narrower proposi-

tion, relating not to the propriety of inquiring into

motive, but to the means by which to conduct this in-

quiry”).

The evidence of unconstitutional legislative purpose

here is similar to evidence of legislative purpose the

Supreme Court has relied upon in other cases, such as

Wallace v. Jaffree, 472 U.S. 38 (1985), which struck down

a state law authorizing a daily moment of prayer or

meditation in public schools. The sponsor testified after

the enactment that his purpose was to “return voluntary

prayer to our public schools.” Id. at 43. The sponsor’s

statement was relevant and probative, at least where

it corroborated other evidence indicating an unconstitu-

tional motive. Id. at 57 (Stevens, J.), and 65 (Powell, J., con-

curring). The same is true of evidence of motive in

64 Nos. 12-1854, 12-2011 & 12-2058

Edwards v. Aguillard, 482 U.S. 578, 586-87 (1987) (relying

in part on legislative sponsor’s statements about

purpose to strike down law requiring teaching of

creationism), and Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252, 265-66, 268 (1977)

(considering evidence of legislators’ racial motives as

part of larger set of evidence regarding reasons

for refusal to rezone property to allow multiple-family

housing). Cf. Perry Educ. Ass’n v. Perry Local Educators’

Ass’n, 460 U.S. 37, 49 n.9 (1983) (finding no viewpoint

discrimination in nonpublic forum, in part, because

“there is no indication in the record that the policy

was motivated by a desire to suppress the PLEA’s

views”). See also John Hart Ely, Legislative & Administra-

tive Motivation in Constitutional Law, 79 Yale L.J. 1205,

1279 (1970) (arguing that O’Brien does not eliminate

motive’s “proper role of triggering demands for

legitimate defense which would not otherwise attach”).

The district court did not err by taking into account

the majority leader’s overtly partisan explanation for the

different treatment of the different unions, and that

evidence should not be ignored here.

2. The State’s Additional Justifications

For the first time on appeal, the State has advanced

three additional reasons for the selective prohibition on

payroll deductions for union dues. The State contends

that it no longer has any interest in securing the stability

and continuity of “general employee” unions because

they no longer have meaningful collective bargaining

Nos. 12-1854, 12-2011 & 12-2058 65

rights. Therefore, the State argues, it cannot justify the

additional expenditure or alleged increased exposure to

liability of withholding dues for “general employees.”

These additional justifications all center on the argu-

ment that, as the State puts it in its reply brief, “public

safety” unions after Act 10 have a “fundamentally

different relationship with the State and municipal em-

ployers than other employee organizations” by dint of

their full collective bargaining rights. State Reply Br. 40.

From this premise, the State argues, it is reasonable for it

to create a nonpublic forum to “assist those employee

organizations whose members have full collective bar-

gaining privileges in the collection of their dues.” State

Reply Br. 33. This argument was waived in the district

court; even on its merits it is merely circular.

On the waiver point, in the district court, the State’s

only response to plaintiffs’ First Amendment challenge

to the payroll deduction provision was an argument

that the First Amendment simply did not apply. Wisconsin

Educ. Ass’n Council v. Walker, 824 F. Supp. 2d at 875

(“In defending against plaintiffs’ First Amendment chal-

lenge, defendants exclusively argue that the prohibition

on the withholding of union dues from paychecks of

general employees does not implicate the First Amend-

ment.”). That position was obviously mistaken; my col-

leagues and I agree to that extent, at least. As a result,

the State’s entire defense on appeal was a creation solely

for the appeal. The State’s handling of the issue amounts

to a waiver of other theories of defense. See, e.g., Fednav

Int’l Ltd. v. Continental Ins. Co., 624 F.3d 834, 841 (7th

Cir. 2010) (“[A] party has waived the ability to make a

66 Nos. 12-1854, 12-2011 & 12-2058

specific argument for the first time on appeal when the

party failed to present that specific argument to the

district court, even though the issue may have been

before the district court in more general terms.”);

Domka v. Portage County, 523 F.3d 776, 783 (7th Cir. 2008)

(“[A] party opposing a summary judgment motion

must inform the trial judge of the reasons, legal or

factual, why summary judgment should not be entered.

If it does not do so, and loses the motion, it cannot raise

such reasons on appeal.”) (citations omitted).5

The majority has chosen, however, to indulge this

tactic by allowing the State to prevail based on argu-

ments that were never made to the district judge.

I disagree, but even more to the point, the State’s late

and ad lib attempt to come up with a viewpoint-neutral

defense of the payroll deduction policy is further evi-

dence that the defense is just a pretext for unconstitu-

tional viewpoint discrimination.

On the merits of this new argument, the State cannot

avoid investigation into viewpoint discrimination by

defining the nonpublic forum as one intended to

support a certain viewpoint, even if the definition is

5

Plaintiffs did not argue that the State waived these defenses

(though they noted that the defenses were asserted for the first

time on appeal), but the waiver doctrine is designed for the

protection of the court as much as for that of an opposing

party, “and therefore need not be asserted by a party for us to

invoke it.” United States v. Hassebrock, 663 F.3d 906, 914 (7th

Cir. 2011) (citations omitted).

Nos. 12-1854, 12-2011 & 12-2058 67

framed in a facially neutral way. And yet that is exactly

the argument advanced by the State when it explains

that, “to the extent the payroll systems are considered

nonpublic fora, the purpose of the fora is to facilitate

dues deductions for those organizations that serve em-

ployees with full collective bargaining privileges.”

State Reply Br. 36.6

We have previously acknowledged the potential to

camouflage impermissible viewpoint discrimination by

cloaking it in facially neutral classifications. “Because

subject matter discrimination is clearly constitutional in

nonpublic fora, classifying a particular viewpoint as a

subject rather than as a viewpoint on a subject will justify

discrimination against the viewpoint. This inherent

manipulability of the line between subject and viewpoint

has forced courts to scrutinize carefully any content-

based discrimination.” Grossbaum v. Indianapolis-Marion

6

City of Charlotte v. Local 660, Int’l Ass’n of Firefighters upon

which the State relies for support that it can pick and choose

who participates in its nonpublic forums does not support the

corollary point the State hopes it does, namely that the legisla-

ture’s choices are wholly immune from judicial review. 426

U.S. 283 (1976). The Supreme Court determined that the regula-

tion in question, which allowed only those wage deductions

that benefitted all city or municipal employees, was reasonable.

The Court focused on the fact that the City had “not drawn

its lines in order to exclude individual deductions,” and

therefore found this universal ban on all checkoffs for any

unions both rational and compatible with the Equal Protection

Clause. Id. at 288.

68 Nos. 12-1854, 12-2011 & 12-2058

County Bldg. Auth., 100 F.3d at 1298 (citations omitted).

The State may not, therefore, pick and choose who may

participate in the nonpublic forum based on the

speaker’s viewpoint. This protection applies to both the

definition of the purpose of the nonpublic forum and to

the criteria for eligibility to participate in that forum. We

should affirm the district court’s decision striking

down the ban on payroll deductions of union dues for

“general” public employees.

II. The Annual Recertification Requirement

I concur in the portion of the judgment upholding the

annual recertification requirement against the equal

protection challenge. It is for me a close question. This

provision and its flimsy justifications raise concerns

very similar to those regarding the dues withholding

provision. In essence, though, rational-basis review

under the Equal Protection Clause is much more

forgiving than the First Amendment standard for a

nonpublic forum. Even so, we should also acknowledge

that the basis for reversing this portion of the district

court’s judgment consists of arguments the State never

presented to the district court. But for the broad

deference to legislatures under rational-basis review,

I would deem these arguments waived and conclude as

the district court did that there was no rational basis

for this unprecedented and punitive provision.

The district court applied rational-basis review to

the annual recertification provisions. (The district court

acknowledged that the provisions might present First

Nos. 12-1854, 12-2011 & 12-2058 69

Amendment issues similar to the payroll deduction

provision. The plaintiffs did not pursue such a theory,

though, and I also do not consider it.) Under rational-

basis review, the legislature has the “widest possible

latitude within the limits of the Constitution.” Carmichael

v. Southern Coal & Coke Co., 301 U.S. 495, 510 (1937). The

plaintiffs have the burden to “negative every con-

ceivable basis which might support” the legislation.

Lenhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364

(1973) (citations omitted); see also Nordlinger v. Hahn,

505 U.S. 1, 17 (1992) (“Petitioner has not demonstrated

that no rational bases lie for either of these exemptions.”).

Rational-basis review creates the odd phenomenon

that arguments to justify challenged legislation may be

raised for the first time on appeal. Each level of the judi-

ciary is charged with using its imagination to identify any

possible legitimate reason for the challenged law. See

FCC v. Beach Communications, Inc., 508 U.S. 307, 312, 320

(1993) (reversing circuit court’s finding that law

was unconstitutional after identifying “plausible ratio-

nales,” and explaining that the “assumptions underlying

these rationales may be erroneous, but the very fact

that they are ‘arguable’ is sufficient, on rational-basis

review, to ‘immunize’ the congressional choice from

constitutional challenge”), citing Vance v. Bradley, 440

U.S. 93, 112 (1979); see also Board of Trustees of Univ. of

Alabama v. Garrett, 531 U.S. 356, 367 (2001) (“Moreover,

the State need not articulate its reasoning at the moment

a particular decision is made. Rather, the burden is

upon the challenging party to negative ‘any reasonably

70 Nos. 12-1854, 12-2011 & 12-2058

conceivable state of facts that could provide a rational

basis for the classification.’ ”) (citations omitted).

All of this is to say simply that rational-basis review

is one of those unusual alcoves in the law where we

overlook a party’s failure to present its case to the

district court. Given this leniency afforded to the State,

I concur with the result on this issue, noting that the

district court itself, recognized this would be the appro-

priate disposition “but for,” in its words, “defendants’

failure to articulate and this court’s inability to posit,

how an annual, absolute majority vote by a wholly-volun-

tary union could rationally advance a reasonable pur-

pose.” Wisconsin Educ. Ass’n Council v. Walker, 824 F. Supp.

2d at 869.

I also agree with the district court’s observation

that requiring a majority of all eligible voters is nearly

unprecedented and seems irrational, at least if one

assumes for purposes of argument that the law was not

intended to be part of a political reward for supporters

and punishment for opponents. Id. at 869. To under-

stand this, suppose we applied the same approach to

elections for presidents or governors: assume that all

eligible voters who do not vote should be counted as

“no” votes or “none of the above” votes. The votes for

“no” or “none of the above” would win virtually every

election.7 Even in the most lopsided presidential elections

7

Scholars have coined the term “voter eligible population”

(VEP), which is a smaller universe than the voting age popula-

(continued...)

Nos. 12-1854, 12-2011 & 12-2058 71

of the past century, the number of eligible nonvoters

exceeded the winner’s popular vote.8 The same is true

of Wisconsin gubernatorial elections.9

7

(...continued)

tion (VAP). The VAP includes all people 18 and older who

are theoretically able to vote, while the VEP excludes from

that number felons, noncitizens, and mentally incompetent

individuals, all of whom would be legally barred from voting.

For an in-depth explanation of the methodology used to

formulate the VEP, see Michael McDonald & Samuel L. Popkin,

The Myth of the Vanishing Voter, 95 Am. Pol. Sci. Rev. 963 (2001)

[hereinafter Myth of the Vanishing Voter]. Professor McDonald,

a leading scholar in the field, has collected some of this

data online as well. See United States Elections Project, last visited

Jan. 16, 2013, available at http://elections.gmu.edu/[hereinafter

U.S. Elections Project].

8

In 1984, for example, approximately 161,980,000 people

were eligible to vote. President Ronald Regan received

54,455,074 votes, which were just 33.6 percent of the VEP.

(For the total popular vote, see Congressional Quarterly,

Presidential Elections Since 1789 at 132 (4th ed.) [hereinafter

Congressional Quarterly]. To calculate the total VEP, see Myth

of the Vanishing Voter at 966, which reports what percentage

of the VEP is constituted by the total popular vote.) In

1964, there were approximately 112,492,000 eligible voters.

President Lyndon Johnson received 43,126,584 votes, which

were just 38.3 percent of the total VEP. See Congressional

Quarterly at 127, and Myth of the Vanishing Voter at 966.

9

In the 2010 Wisconsin gubernatorial election, there were

approximately 4,170,500 eligible voters. Governor Walker

(continued...)

72 Nos. 12-1854, 12-2011 & 12-2058

It is far from clear why completely voluntary unions

with minimal bargaining rights could need annual

recertification under voting rules that would undermine

our nation’s democracy if applied to government elec-

tions. As legitimate bases for the annual recertifica-

tion provisions for unions representing general em-

ployees, the State argues that they will promote

employee choice and that, because the rest of Act 10

has weakened the powers of these unions so much, the

9

(...continued)

received 1,128,941 votes, which were 27 percent of the VEP. For

the 2010 election results, see Wisconsin State Government

Accountability Board (GAB), GAB Canvass Reporting System,

Dec. 8, 2010, available at http://gab.wi.gov/sites/default/files/

percent%20results%20post%20recount_120710.pdf [hereinafter

GAB Data]. For the calculation of the Wisconsin 2010 VEP, see

U.S. Elections Project, available at http://elections.gmu.edu/

Turnout_2010G.html. In the 2006 Wisconsin gubernatorial

election, there were approximately 4,064,500 eligible voters.

Governor Doyle received 1,139,115 votes, which were 28 per-

cent of the VEP. See U.S. Elections Project, available at

http://elections.gm u.edu/Turnout_2006Ghtm l, and GAB

Data, available at http://elections.state.wi.us/docview.asp?docid=

10080&locid=47. In the 2002 Wisconsin gubernatorial election,

there were approximately 3,908,000 eligible voters. Governor

Doyle received 800,515 votes, which were 20 percent of the

VEP. See U.S. Elections Project, available at http://elections.

gmu.edu/Turnout_2002Ghtml, and Dave Leip’s Atlas of U.S.

Presidential Elections, available at http://uselectionatlas.org/

RESULTS. (All websites last visited Jan. 16, 2013).

Nos. 12-1854, 12-2011 & 12-2058 73

State simply has little to no interest in providing for

stability in union representation of these employees. By

contrast, because public safety employee unions retain

their traditional powers, the State says, it has a substan-

tially greater interest in stable representation so that it

can negotiate and work with familiar counterparts.

Under rational-basis review, “a legislative choice is not

subject to courtroom fact-finding and may be based

on rational speculation unsupported by evidence or

empirical data.” FCC v. Beach Communications, 508 U.S.

307, 315 (1993). That’s about the most that can be said

in favor of the annual recertification requirement,

other than as punishment of political opponents.1 0

* * *

10

Act 10’s overall aim of cost saving does not appear to

justify this provision, for the record suggests that annual

recertification will actually cost the State money. A letter

from the Wisconsin State Employment Relations Commission

to the Secretary of the Department of Administration voiced

“grave concerns” about the annual recertification provi-

sion. Supp. App. at 98. The letter detailed the administrative

impossibilities of conducting these annual recertifications on

site and the considerable strain this would have on admin-

istrative resources given that it was a “labor intensive en-

deavor.” Id. The Commission estimated, based on past experi-

ence, that the postage alone would cost the State $176,000

for every 200,000 employees. Id. at 99.

74 Nos. 12-1854, 12-2011 & 12-2058

As I said at the outset, elections have consequences.

The United States Constitution does not forbid all legisla-

tion that rewards friends and punishes opponents.

The principal provisions of Wisconsin’s Act 10 may fit

that description, but they are still constitutional under

the generous standard of rational-basis review. The

new, selective limits on payroll deductions for union

dues, however, are subject to the more demanding

First Amendment standards for a nonpublic forum

and flunk that test. I would affirm that portion of the

district court’s judgment.

1-18-13