On Sunday, March 27, I posted a comment to Forbes Columnist Rick Ungar’s piece entitled Gov. Scott Walker To Defy Court Order Blocking Anti-Collective Bargaining Law? Since Mr. Ungar “called-out” my comment and responded to it, I have decided to post the comments here. I should note that although the phrase “called-out” has a somewhat negative meaning in the common vernacular, that is not the meaning in this instance. To quote Forbes on the term:

Forbes contributors have the ability to call out member comments they find particularly interesting. Called-out comments are highlighted across the Forbes network. You’ll be notified if your comment is called out.

In this case at least, it appears that nearly all of the posted comments have been “called-out,” so I’ve hardly earned special treatment. Still, I appreciate Mr. Ungar’s decision to highlight and respond to my comment. My original comment follows:

No one should be held in contempt of court because of the publication of this law. None of the parties to the case have done a single thing in violation of the court’s order and nothing they’ve said would indicate that they are about to do anything that would be a violation of the order. Publication by the Secretary of State was enjoined and has not happened. The actions of the nonpartisan Legislative Reference Bureau in publishing the law, which it is legally required to do, are not a violation of the court order because that publication was not enjoined. It is doubtful that the publication satisfies the Constitutional publication requirement, but attempts to implement the law based on that publication would not be contempt either. I wonder if Mr. Ungar or any of the commenters here are as bothered by the Obama administrations implementation of a law that is legally void as unconstitutional, subject to appeal, as they are by what Governor Walker is doing.

Also, how does the action of a single local judge in defying the democratically elected legislative and executive branches become one of our most basic democratic principles? Have you actually taken a look at the law that Judge Sumi’s order purports to be enforcing? She is completely disregarding both the Wisconsin Constitution and the Open Meetings Law. The Constitution gives the legislature the sole power to govern the rules of its proceedings. The Open Meetings Law expressly states that its requirements do not apply to legislative proceedings so long as legislative rules are followed. Why isn’t anyone alleging a violation of those rules? Because they were followed and more notice and time than was required was actually given. Simply put, the claim that the law was passed in violation of the Open Meetings Law is wholly without merit and frivolous. Furthermore, Judge Sumi exceeded her authority by issuing the temporary restraining order. Despite efforts to construct a conflict in the case-law, the Wisconsin Supreme Court expressly ruled that the courts have no role in addressing the merits of a law until after it is published. Injunctive relief is available to prevent future violations of the law, but not to block a law from going into effect. Also, the law is clear that violations of the open meetings law do not void acts taken in closed meetings. If an action is otherwise legally taken, it is given full force and effect.

There is no right to collective bargaining. Most federal workers have fewer collective bargaining rights than Wisconsin will have after enactment of the new law. Collective bargaining “rights” in the private sector were created by the National Labor Relations Act, which was necessary to exempt unions from anti-monopoly laws. Collective bargaining “rights” are the creation of state law, in those states that grant them. Neither is a “right” in the true constitutional meaning of the term. Nor should they be. It is no coincidence that the American Federation of State, County, and Municipal Employees (AFSCME) was the biggest political spender by a margin of more than two-to-one in Wisconsin in 2010. In Wisconsin, union membership in public employee unions is mandatory (a blatant violation of the right of association). Union dues are withheld from employee pay and paid directly to the unions. Unions then turn around and use that money to contribute to politicians that, if elected, will be negotiating union contracts. In any other context, you’d call that a bribe. For example, if the UAW was giving money to executive at Ford to encourage them to agree to higher pay and more expensive benefits, they’d be called corrupt and sent to jail for racketeering.

Reducing collective bargaining agreements will lower the cost of government, to the benefit of Wisconsin’s middle class and working poor. It will protect public employee’s rights to decide whether they want to be part of a union. It will reduce union bosses’ power to distort the political process by electing politicians who are dependent on union patronage for their ability to stay in office. It will free up education spending to be spent on better facilities, educational materials, and expanded curricula instead of extravagant “Cadillac” health and retirement benefits–benefits packages that are far more generous than private sector workers receive at a fraction of the cost. It will make government more efficient by allowing hiring and promotion decisions to be made on employee merit rather than registration. Maybe now the Milwaukee School District will be able to re-hire the Teacher of the Year that they were forced to layoff because of union rules favoring tenure over performance.

Finally, the most basic democratic principle is that elections reflect the will of the people. Wisconsin elected Republicans because Governor Doyle and the democratic legislature were driving the fiscal bus off a cliff. They created this deficit by using gimmicks and short-term fixes, like illegally raiding a state fund for medical malpractice victims, to cover over their lack of fiscal discipline and pandering to union special interests. Reducing the costs of government by bringing public employee compensation closer in line with private sector employment was always a central part of Governor Walker’s campaign. It is this attempt by union activists, their political cronies in the democrat party, and activist judges who defy the law by rewriting it from the bench that are an attack on “our most basic democratic principles in order to force their autocratic desires on their citizens.”

Mr. Ungar responded by asserting, among other things, that I was arguing that the fact that the majority passed the law put it beyond the scope of judicial review. You can find his response with his original column, linked above. My response was:

1. Judge Sumi enjoined publication of the law by the Secretary of State. Unless one of the parties to the suit is behind the publication, there is no violation of the order and contempt proceedings would be inappropriate even if Governor Walker tries to enforce the law. That’s what the rule of law dictates.

2. Your attempt to construct and destroy a straw-man argument is pathetic. I did not argue that a majority vote trumps everything. The individual mandate in the health care law is unconstitutional because it exceeds the authority granted to the federal government under the U.S. Constitution. Collective bargaining for state employees was granted by state statute and there is no question it can be revoked in the same way. Your analogy doesn’t hold water.

The challenge to the Wisconsin law is based on alleged procedural violations. The Wisconsin Supreme Court has ruled in previous cases that the courts do not have authority to review the validity of a law until after it has exited the legislative process via publication by the Secretary of State. We are a nation of laws, not a nation of judges, because of the Rule of Law. The law is clear. Judge Sumi ignored and violated the law by exceeding her authority and issuing an order in defiance of the law. In a nation of laws, judges must obey and enforce the law. Too often judges like Judge Sumi see themselves as being above the law or as being the law. They would make us a nation subject to judges hiding behind a facade of law.

3. You are right, of course, that neither of our opinions will decide the legal case. However, I suspect that you have a higher opinion of your opinion or you wouldn’t write your opinion as a profession. In any case, that’s beside the point and a poor attempt to side step the fact that this is a frivolous lawsuit and will continue to be so even after the law is published and becomes subject to judicial review. You imply that you read the law and interpret it in a different way, but don’t seem to want to share, much less defend, that interpretation.

The Open Meeting Law generally states that the Legislature is subject to the law. It also contains specific exemptions. Anyone who has studied the law knows that one of the most basic canons of statutory interpretation is that the specific overrules the generic. Moreover, the Wisconsin Supreme Court has ruled that the application of this law to legislative procedures should be construed narrowly in part to avoid constitutional problems. Judge Sumi did just the opposite and her ruling interprets the law in a way that clearly violates Art. IV, sec. 8 of the Wisconsin Constitution. In addition, her opinion acknowledges that Senate Rules trump the statutory 24-hour requirement, but simply sidesteps the rules by not acknowledging a Senate rule that expressly states that no notice beyond publication of the bulletin is required. The plaintiff’s legal arguments are specious at best.

That is not to say that the Courts won’t eventually rule for the plaintiff. Wisconsin has more than its share of activist Progressive judges and a judicial election, fueled by outside interest money spreading lies about the incumbent, could give them back the Supreme Court. Union money and the corruption it buys could still turn back progress in Wisconsin. If we are to remain a nation of law, the Rule of Law must prevail. So far in Wisconsin, it has been subverted by those entrusted with enforcing it.

I look forward to a response.

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