The last few years haven't been great for limited government, though Wisconsin is an exception. After the made-for-MSNBC protests, a failed bid to turn over the state Supreme Court and a failed recall election, Governor Scott Walker's public union reforms still stand. And now the spurious constitutional challenges have guttered out in federal appeals court.
On Friday a three-judge panel of the Seventh Circuit Court upheld the law in its entirety. Two judges rejected the claims of the Wisconsin Education Association Council and six other government unions that Mr. Walker violated the Equal Protection clause and the First Amendment, while a third judge—David Hamilton, nominated by President Obama—concurred in part and dissented in part.
The unions argued that Mr. Walker's limits on collective bargaining, the requirements that a union be recertified each year by a majority of its members and the elimination of the payroll deduction of dues were illegal because they exempted cops and firefighters. Supposedly this amounts to discrimination by creating two categories of public employees. They also argued that the payroll deduction clause violates the First Amendment.
Ponder that claim for a moment: Wisconsin's failure to automatically subtract union duties from paychecks endangers free speech because it requires organized labor to persuade its own members that its activities are valuable enough to contribute to voluntarily. Normally such moonshot claims would get tossed out of court, but the unions found two credulous lower court judges who invalidated parts of the law.
The Equal Protection claims were first to go. The Seventh Circuit held that it was rational to fear a retaliatory strike from police and firemen that could endanger public safety, and thus the two-tier system protects a legitimate state interest.
As for the First Amendment, the court ruled that Wisconsin has no obligation to help unions fund political or other spending, in accord with a slew of Supreme Court and appeals court precedents. "The Bill of Rights enshrines negative liberties," wrote Judge Joel Flaum in the 74-page decision. "It directs what government may not do to its citizens, rather than what it must do for them."
Automatic payroll deductions aren't a right but a subsidy for political speech—a special privilege created by the government, not the permanent monopoly entitlement that government unions imagine.
The same goes for public-employee unions, and Judge Flaum notes that to protect another legitimate state interest—affordable government and "a rational belief that public sector unions are too costly for the state"—one alternative to the Walker reforms "would appear to be the outright elimination of all general employee unions." Hmmm. For now, Mr. Walker and Wisconsin taxpayers can savor one more vindication.
A version of this article appeared January 22, 2013, on page A18 in the U.S. edition of The Wall Street Journal, with the headline: Another Walker Vindication.