Scott Walker's Revolution: The Sequel

It has been two years since Wisconsin Governor Scott Walker came into office in dramatic fashion. With a slim majority in both houses of the state legislature, Walker led a fiscal revolution and a one-man crusade to return fiscal sanity to public employment and open the doors of Wisconsin to business creation.

Despite Wisconsin’s ten electoral votes going for President Obama in November, something miraculous is continuing to unfold in America’s Dairyland. Republicans actually regained control of a state legislature they had lost briefly in April of 2012. They now have a 3-seat advantage in the Senate and a 21-seat majority in the Assembly. Scott Walker now has the tools he needs to continue the “Cheesehead Revolution.” Amazingly, he is up for relection already in 2014. Long before then, however, he will face for the first time a new and much stronger adversary which threatens to derail his aggressive and much-needed reforms and agenda — the Wisconsin Supreme Court.

Despite facing a  2012 recall election funded by unions across the nation, in less than a year Walker slew the dragon. In a state dominated by public employee unions just a few short years ago, he turned a $3.6 billion state deficit into a surplus. For the first time since 1996, school tax levies actually decreased, keeping an extra $228 million in Wisconsin taxpayers’ pockets. Walker protected seniors and needy families by investing $1.2 billion in new state funds for a Medicaid program in peril due to the loss of one-time federal stimulus funds and unsustainable program expansions. He balanced the state budget while still offering state employees generous pension plans unheard of in the private sector. He gave school districts the tools to balance their own budgets, and Wisconsin saw new-teacher hires outnumber layoffs and non-renewals by 1,799 positions. The teacher to student ratio in Wisconsin public schools dropped from 15.6 to 13.3.

Walker saved the state $4.8 million in 2010 alone by ending abusive overtime practices which allowed sate employees who call in sick to collect overtime if they work a shift on the exact same day. School districts can now do what is best for education rather than unions, like managing staffing based on merit rather than union seniority. Tens of millions of dollars were saved the state by allowing school districts to shop around for the best deal in health insurance rather than being forced by union contracts to use the significantly more expensive and union-owned WEA Trust. In balancing the budget, Walker paid off $831.7 million of debt left over from the previous Democrat administration, including:

•    $235 million to the state’s Injured Patients and Families Compensation Fund as a result of an unconstitutional raid by a previous legislature
•    $176.5 million Medicaid shortfall
•    $58.7 million to Minnesota for income tax collected from Wisconsin residents who work in Minnesota (accruing interest —  $4,584/day)
•    $20 million to the state Department of Corrections
•    $341.8 million in lapses left over by the previous administration

A net loss of nearly 150,000 jobs in the three years prior to Walker taking office has been turned into a 25,411 increase in jobs in 2011 — despite the Obama-ravaged economy. But this is only the beginning. Governor Scott Walker recently hinted at some of the reforms he has in store for the rest of his first term.

On November 19, Walker gave a major speech at the Reagan Library in Simi Valley, California, unveiling new policy initiatives which include decreasing taxes, expanding the school choice voucher program, and tying funding for the University of Wisconsin and technical college systems to how well those schools prepare students to take available and needed jobs in Wisconsin. Not surprisingly, the speech was not carried or even covered live by Wisconsin media.

With the power given to Scott Walker by the significant Republican majority in the state legislature, there is a unique opportunity for ground-breaking legislation. An effort to scale back same-day voter registration is likely to surface. A new mining bill to create good-paying union and non-union jobs — rejected by public employee unions and every Democrat in the legislature the last time around — is also a given. Walker understands that there is no sense in having power if you are not going to use it. Sequels are rarely better than the original, but the new slate of reforms Governor Walker has planned might be one of the exceptions.

Walker’s Act 10 reforms of 2011 brought to a halt the endless rise of Wisconsin property tax, but Wisconsin’s overall tax burden remains one of the highest in the country. In the sequel, Walker intends to actually start bringing tax rates down. Wisconsin’s neighbor to the south, Illinois, recently had to raise income taxes 67% in order to ward off financial Armageddon, and it still can’t pay its debts. But Wisconsin’s income tax rates (top bracket taxed at 7.75%) are still higher than Illinois’ (top bracket was taxed at 3% but now is at 5%). Taxing income deters economic activity. Walker did not specify who would get tax cuts, but the next Assembly speaker, Robin Vos, said that he hoped Wisconsin could trim income taxes for all taxpayers but give the greatest relief to the middle class. Lowering income taxes while maintaining the recently balanced state budget will be the challenge. Additional and badly needed cuts to the state budget will still be necessary.

It appears at first blush that there is nothing standing in the way of the Walker sequel. But there is one obstacle looming and it is a big one. Next April 2, the 4-3 conservative majority on the Wisconsin Supreme Court will hang in the balance. Conservative Justice Patience Drake Roggensack was elected to a 10-year term on the Supreme Court in 2003. She is up for reelection in April. In June of 2011, it was this 4-3 conservative majority which overturned an activist lower court’s decision barring implementation of Act 10 on procedural grounds, revealing a sharp partisan divide and an all-out open battle between the members of the High Court over the Walker reforms.

Supreme Court Chief Justice Shirley Abrahamson wrote that justices hastily reached the decision and the majority “set forth their own version of facts without evidence. They should not engage in this disinformation.” Abrahamson also said a concurring opinion written by Justice David Prosser, a former Republican speaker of the Assembly, was “long on rhetoric and long on story-telling that appears to have a partisan slant.”

In September of 2012, liberal Dane County Circuit Court Judge Juan Colas struck down Gov. Scott Walker’s collective bargaining law once again — this time on constitutional grounds. The decision is ridiculous. Judge Colas broke down the decision into four rulings, the most significant being that — despite precedent to the contrary — certain sections of Act 10 violate “free speech, association and equal protection.” Namely, the law violated workers’ constitutional rights by denying to union workers certain powers available to their nonunion counterparts. Colas essentially made the argument that because the government offers collective bargaining as a benefit to some employees, they cannot be required to give up a constitutional right to take advantage of that benefit. The Colas ruling will ultimately end up before the Wisconsin Supreme Court. Whoever controls the court will determine the fate of the successful reforms Walker has put into place.

It is also a given that any of Governor Walker’s aggressive and common-sense reforms in the hopper for 2013 will also see the inside of the Wisconsin Supreme Court. I have argued cases before Justice Roggensack and she is experienced, fair, and well-reasoned, and has always adhered to judicial precedent. But she is conservative, and that means all bets are off. As a recent Wisconsin State Journal editorial suggested, the upcoming Supreme Court election will likely be yet another referendum on Act 10, rather than a contest decided by judicial experience, temperament, and independence.

There are several potential challengers for Roggensack’s seat. Dane County Judge Maryann Sumi — who originally struck down Act 10 — is a likely candidate. So is Vince Megna, a radical lawyer known as the “King of Lemon Laws” — who announced he would no longer represent Republicans and has been running a string of web videos since Republicans changed a consumer law which made it possible for lawyers to recover millions in attorney fees even though only a few thousands dollars in damages were awarded under Wisconsin’s Lemon Law. Also considering a possible challenge to Roggensack is Marquette Law School professor Ed Fallone.

It seems that the upcoming Wisconsin Supreme Court election will be another scorched earth political rumble in Wisconsin. The fate of the entire Walker Revolution may hang in the balance. A state judge living in the fantasy world which is Madison has substituted his singular opinion for the collective will of Wisconsin voters. Again. And now a single Supreme Court election will likely determine the outcome of a conservative political reform movement which seeks to take root around the country.