It has been a while since I have posted a new article and I apologize for that. Since my absence a lot of things have happened in the political and legal realms that are ripe for comment. For example, Common Cause and various congressional members have sued the Senate claiming that the filibuster is unconstitutional, the Supreme Court is set to release its opinion on the Affordable Care Act any day, the Ninth Circuit recently decided to pass on en banc review of a district court's decision determining proposition 8 unconstitutional on federal grounds(along with the First Circuit's decision on the Defense of Marriage Act), and most recently Governor Scott Walker's win last night in a tense political battle between him and the labor movement. Because the Wisconsin recall election falls squarely within my practice area I wanted to use this opportunity to explain what can be learned politically and legally from the recall election.
The facts of the recall are simple. Governor Walker was hailed by anti-labor groups when he spear-headed legislation that undercut public employee collective bargaining in early 2011. Walker argued that to get an estimated $300million in savings, public employees would have to manage cuts to their pensions, healthcare benefits, wages, and collective bargaining rights. In a show of force, union groups staged large protests against governor Walker, negotiations between unions and Walker broke down, some of Wisconsin's senators fled the state to prevent Walker's legislation from passing. Ultimately, the situation was resolved with Governor Walker enacting dramatic cuts to union rights.
The unions and other like minded individuals got together and sought signatures to recall the governor for legislative overreach. After gathering enough signatures the recall was a necessarily muddy process. Although Democrats knew they wanted Walker out of office, settling on who would replace Walker if he was successfully recalled was a much harder question. After a primary fight where the perceived union candidate lost, the Democrats put forward Tom Barrett to run against Governor Walker. All of this culminated in last night's election where early exit polls indicated that union turnout was higher than anticipated, but ultimately was not enough to recall Walker; resulting in a 53%-46% win for Walker.
From a campaign side, the amount of spending in this recall election was tremendous. Both sides raised large sums of money, although Walker raised considerably more than Barrett. According to Mother Jones and Bill Moyers, Gov. Walker raised $30.5 million just to fight off the recall election and Barrett raised $3.9 million. Of that, approximately 66% of Walker's funds came from outside sources whereas only 26% of funds raised by Barrett were from external donors. Wisconsin's Government Accountability Board estimates that independent expenditures, the kinds made by super PAC's, contributed approximately $22 million dollars to the race with $16.3 million being in favor of Walker. This means that 74.1% of super PAC funds were spent by Walker favoring groups.
The most immediate thought that comes to my mind is that anti-labor legislators are likely to feel emboldened by Walker's success last night. Legislatures that disfavor union activity, like those in Utah, Idaho, and Indiana will feel emboldened to eliminate automatic wage deductions and to enact a raft of legislation designed to further limit union activity. Unions need to be ready to proactively shut down attempts to legislatively limit their power. Citizens United and its progeny in the D.C. Circuit Court is a powerful tool to shore up funding for both sides in an election and considering the gravity of last night's recall election, unions should prepare themselves to fight a new round of legislative attacks.
The second, jarring, thought that comes to my mind is that the recall rules allow Walker to raise unlimited funds from individuals, whereas Barrett could only maximally accept $10,000 contributions from any one individual. According to Wisconsin's accountability board, the state's contribution limits are not applicable when the contributions go to a candidate who is defending against the recall. Wis. Stats. 11.26(13m)(b). This means Walker had a statutory incumbency advantage. This strikes me as odd considering the Supreme Court's harsh language in F.E.C. v. Davis, where the Court disapproved of contribution schemes that apply stilted limits on the candidates, particularly in a way that favors an incumbent. In Davis, the Court struck down laws designed to increase the contribution limits for a candidate when the opposing candidate spent large amounts of money from his/her personal funds. Justice Alito, for the Court, determined that the statutory regime in Davis was a drag on the First Amendment because it forced a candidate to refrain from expending personal wealth on her/his own campaign out of fear of triggering the laws that would increase the opposition's contribution limit. Wisconsin's law seems one step worse than the law in Davis. At the outset, a candidate is discouraged from participating in a recall because the challenger can only maximally raise $10,000 from each individual whereas the incumbent can raise unlimited amounts to defend against the recall. Candidates may be disinclined to even challenge a candidate through the recall process because of the fund raising disadvantages statutorily imposed on the candidate. Furthermore, it seems likely that Walker's vast fundraising advantage over Barrett is in some part due to the fact that Walker can raise unlimited funds from individuals. It seems to me that Wisconsin's recall contribution limits are an unconstitutional regime designed to protect incumbents.
Finally, I finish with this thought: the effects of Citizens United have not been fully explored by both sides of the political spectrum. It seems the right has been far more willing to test the boundaries of the logic in that opinion, and so far, it has resulted in a massive influx of money into our election system. As long as these are the rules that we are to play by, both of our political parties should feel equally able to use Citizens United to advance their electoral goals. The disparity of funds spent on behalf of Barrett and on a pro-union message, to me, signals that pro-union groups and candidates are unfamiliar with utilizing super PAC funds. If the left does not spend the kind of money that right leaning super PAC's have, then the left will be faced with an arms race that it will likely lose come November.
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