Unintimidated

by Scott Walker

  When the results came in on April 6, the Associated Press reported that Kloppenburg had received 740,090 votes to 739,886 votes for Prosser—giving her a narrow 204-vote lead. Kloppenburg declared victory. “Wisconsin voters have spoken and I am grateful for, and humbled by, their confidence and trust,” she said.6

  Despite the razor-thin margin, the opponents of Act 10 could not wait to gloat. Senate Minority Leader Mark Miller sent out a boastful e-mail declaring, “Walker’s good friend Supreme Court Justice David Prosser was defeated in his re-election bid—despite leading in initial polls by 30 percent! Clearly the people of Wisconsin are standing up and rejecting Scott Walker’s agenda.” Moveon.org sent out an e-mail declaring: “We just had a HUGE win!! I’m literally breathless. I’m witnessing history. Incumbent candidates for the Wisconsin Supreme Court generally get re-elected in a landslide. But in the general election yesterday, progressive JoAnne Kloppenburg closed the gap and, with 100% of precincts reporting, has beating [sic] conservative justice David Prosser!” The Huffington Post headline read: “Scott Walker Struggles to Downplay Wisconsin Election That His Allies Built Up as a Referendum.”7

  But the next day, April 7, the Waukesha County clerk announced that she had accidentally omitted an estimated 14,000 votes from conservative-leaning Brookfield from the unofficial results she had shared with the press. According to the Milwaukee Journal Sentinel, “The new totals give 10,859 more votes to Prosser and 3,456 more to Kloppenburg”—putting Prosser over the top by more than 7,500 votes.8

  A recount confirmed Prosser’s victory, and on May 31, Kloppenburg finally conceded.

  The irony is, if Kloppenburg and her union allies had made the race about Act 10, Prosser might very well have lost. Voters still had not seen the results that Act 10 would soon produce. And if Kloppenburg had won, and Act 10 had been invalidated, they might never have seen the results. Without the results, I probably would not have survived my recall election a year later.

  So while I was not on the ballot that day, my political fate—and the fate of our reforms—certainly were and we won.

  In the end, the unions lost because they overreached. Their ugly tactics alienated voters. It was a story that would play itself out over and over again in the months to come.

  The first proxy battle over Act 10 was over. Prosser won, and the law survived. With Justice Prosser back on the bench, the supreme court overruled Judge Sumi’s decision that Act 10 was invalid under the open meetings law. In a 4-3 ruling, the court found that Judge Sumi had “exceeded [her] jurisdiction, invaded the Legislature’s constitutional powers . . . and erred in enjoining the publication and further implementation of the Act.” In his concurring opinion, Justice Prosser declared, “This is not a close question.”

  Act 10 was formally reinstated.

  This was just the first of many legal challenges to Act 10. Having failed to defeat Justice Prosser and flip the state supreme court, the unions turned to the federal courts. They filed a lawsuit arguing that Act 10 was unconstitutional because, among other reasons, our “paycheck protection” provision barring forced collection of union dues violated the First Amendment and the Equal Protection Clause because they exempted police and firefighters—creating two classes of public employees.

  For unions, this was the core of their opposition. Paycheck protection gave government workers the right to choose whether or not to join a union and pay union dues. The unions didn’t want them to have that choice. They knew that in Indiana, after Governor Mitch Daniels enacted paycheck protection, only 5 percent of state employees continued paying union dues9—dropping from 16,408 in 2005 to just 1,490 in 2011.10 Now, they worried, the same could happen in Wisconsin.

  They were right. Once the Wisconsin supreme court upheld Act 10, and the paycheck protection provision went into effect, many public workers did in fact decide to keep the money, using it to offset their increased pension and health care contributions. Without the ability to coerce workers into paying involuntary dues, the Wisconsin State Journal reported in August 2011 that “the statewide teachers union issued layoff notices to 42 employees Monday, about 40 percent of its staff. . . . The shrinking size of WEAC’s office staff could be a bellwether for the future of other public sector unions in the state.”11

  Indeed it was. The following year, in June 2012, the Wall Street Journal reported that “public-employee unions in Wisconsin have experienced a dramatic drop in membership—by more than half for the second-biggest union—since a law championed by Republican Governor Scott Walker sharply curtailed their ability to bargain over wages and working conditions.” The paper reported that in March 2011, when we passed our reforms, membership in AFSCME stood 62,818. A year later, membership had fallen by more than half to 28,745.12 “Much of that decline came from AFSCME Council 24, which represents Wisconsin state workers, whose membership plunged by two-thirds to 7,100 from 22,300 last year,” the Journal wrote.

  The paper also reported similar declines for the Wisconsin chapter of the American Federation of Teachers. “In the nearly 15 months since Mr. Walker signed the law, 6,000 of the AFT’s Wisconsin 17,000 members quit, the union said. It blamed the drop on the law,” the Journal wrote.

  It was exactly as Mitch Daniels had predicted.

  The fact is, when union membership was no longer compulsory and workers were given a free choice of whether to pay dues, well over half chose to quit the union.

  The declines have apparently continued apace.

  In July 2013, the Wisconsin Reporter found that “AFSCME Council 24’s dues-paying membership fell from about 5,900 security and safety employee members pre-Act 10 to 690 in the early months of this year—an 88 percent drop.”13

  The Washington Examiner reported in April 2013 that “more than two years after Scott Walker’s showdown with organized labor in Wisconsin, the official numbers for the state’s public sector union membership are in—and they are down. Way down.” Membership for Wisconsin’s AFSCME Council 40 dropped precipitously, from 31,730 in 2011 to just 20,488 in 2013. “That’s a drop of more than 11,000—about a third—in just two years,” the Examiner declared.14 Another union, Wisconsin AFSCME Council 48, saw its membership plummet 61 percent following passage of Act 10.15 That was the AFSCME local headed by Rich Abelson, the union leader who told me to “go ahead” and lay off hundreds of public workers when I was Milwaukee County executive. According to the Examiner, his AFSCME chapter’s membership dropped from 9,043 members in 2011 to just 3,498 today. The declines, the paper said, “show why the state worker unions and their liberal allies fought such a protracted, bitter battle in 2011 over Republican Governor Scott Walker’s changes to the state’s labor laws.”

  AFSCME Council 48 lost not only most of its members, it lost its official status by failing to win a recertification vote—which meant public officials could no longer recognize the union or negotiate with it. Having lost official recognition and much of his membership, Abelson came up with a new strategy to justify his union’s continued existence: He adopted the tactics of ambulance-chasing trial lawyers and filed a series of frivolous lawsuits. After he sued Milwaukee County over pensions, insurance, and other benefits, he then pitched the benefits of his litigation to try to lure back thousands of public workers who had quit his union.

  In a desperate letter to former AFSCME Council 48 members, Abelson warned, “All of these lawsuits are filed on behalf of AFSCME members only—nonmembers will not benefit. So, if you are not now a member, become one today and ensure that you are included in any successful lawsuit settlements and that your Union remains a powerful voice to protect your rights and interests.”16

  He might as well have ended the letter by urging his members to call 1-800-LAW-SUIT.

  Even Milwaukee County executive Chris Abele—a Democrat who was endorsed by Abelson’s union—told the Milwaukee Journal Sentinel that Abelson’s claim was false. “If the courts ruled against these
reforms, the impact would extend beyond union members,” Abele said. “Any claim made that only represented employees would receive money or benefits is false.”17

  The episode demonstrated that the unions were out of touch with many of their own members. Given the freedom to choose whether to join the union and pay dues, many decided it wasn’t worth it. In other words, the tens of thousands of protesters banging drums and blasting horns at the state capitol, outraged over our reforms, not only did not represent the majority of Wisconsinites—they did not even represent the majority of Wisconsin union members.

  The unions’ lawsuit against the “paycheck protection” provision failed as well. In January 2013, a three-judge panel of the Seventh Circuit Court of Appeals upheld Act 10 and rejected the union’s claims. Our decision to exempt police and firefighters out of a concern that a strike would endanger public safety, the court found, protected a legitimate state interest. And the court found that the automatic payroll deductions were not a “right” to which the unions were constitutionally entitled.

  As Judge Joel Flaum wrote, “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.” If the unions can’t convince public employees to pay their dues, they have no constitutional right to demand that the government compel them to do so.

  The unions chose not to appeal the case to the United States Supreme Court. I suspect they knew they would lose, and did not want to have the supreme court affirm Judge Flaum’s finding that collective bargaining is not a constitutional right.

  But they have not ceased waging “lawfare” against Act 10. More lawsuits are winding their way through the courts. But as of this writing—despite the many novel and often frivolous legal roadblocks that have been thrown in its path—Act 10 still stands.

  I am confident it will ultimately survive all the legal challenges.

  CHAPTER 16

  “This Is War!”

  Justice Prosser and Act 10 had survived, and now the unions were eager to target me—using an obscure provision in the Wisconsin constitution which allowed for the recall of elected state officials.

  The recall amendment had been passed in 1926 as a progressive, good-government measure designed to reduce the influence of special interests in Wisconsin politics by allowing voters to remove corrupt officials from office.1 Until 2011, it had rarely been used. Only two state officials had been successfully recalled in the eighty-five years since the amendment passed, and no governor had ever faced a recall in Wisconsin history.

  Ironically, our opponents were now using a tool intended to reduce the power of special interests to punish us for challenging the power of a special interest—the union bosses.

  As much as they wanted to launch a recall against me, the unions could not do so yet because under Wisconsin law you can’t recall an elected official until he or she has been in office for a year. They had to wait until November to begin collecting signatures to remove me from office.

  So they did the next best thing—and went after members of the state senate who had been in office long enough to face a recall, and who had voted for our reforms.

  One of their first targets was Senator Dan Kapanke.

  You’ve probably never heard of Dan, but I wish there were more like him in our nation’s capital. When I think of courage, I think of Dan Kapanke.

  I didn’t know where Dan would come out when we first put forward our plan to reform collective bargaining. He had worked with the unions in the past and had been endorsed by the correctional officers union in his last election. Moreover, President Obama had carried his district with 61 percent of the vote in 2008, so voting for collective bargaining reform could be a politically fatal move for him.

  Dan had more than his senate seat at risk. He and his family own the La Crosse Loggers, a semipro summer baseball team that brings together top college players from across the country and gives them a taste of life in the pros. The Loggers have sent players on to almost a dozen major-league teams, including the Milwaukee Brewers.

  The Loggers are Dan’s family’s business and livelihood. He mortgaged his home and everything he owned to start the team, and put his heart and soul into making it a success. When he wasn’t in Madison during the summer, Dan was at home running the stadium and even selling popcorn and Cracker Jack in the stands.

  Opponents of Act 10 had threatened to boycott businesses that supported us. Dan realized that his vote could affect not just his political career but also his business, his retirement, and his ability to support his family as well.

  On the morning of March 5, Dan called a family meeting to talk the decision through. He told them that in his six years in Madison, he had watched our state descend into debt due to fiscal irresponsibility by members of both parties. This, he said, was his chance to finally do something about it. But he also laid out the possible ramifications for all of them. A boycott could put the Loggers out of business. They could lose everything. It was an emotional meeting, and he didn’t ask them to take a vote. He just asked them to pray.

  Driving into Madison that day, Dan made his decision about thirty miles out. He was going to support our bill. I had gotten word from Majority Leader Scott Fitzgerald about Dan’s family meeting that morning, and had asked to see him when he got to the capitol. I was ready to talk him through what I knew was an enormously difficult decision. But when he came into my office, before I could even say a word, he gave me a big bear hug.

  “I’m with you, Guv,” Dan said. “I’m with you all the way.”

  I was blown away. The price Dan was willing to pay, personally and politically, to help rescue his state was enormous. I reached for my daily devotional, and we turned to a reading called “The Heart of Leadership.” It recounted the Gospel passage where Jesus washes his disciples’ feet, and then it read:

  You can just as easily detect whether a leader has a servant’s heart. The truth is the best leaders desire to serve others, not themselves. . . . In the end, the extent of your influence depends on the depth of your concern for others.2

  We prayed together over those words.

  Dan Kapanke has a servant’s heart. He put his concern for others, and his concern for his state, over his own interests. Without him, Act 10 would never have become law.

  Once Dan made his decision to support us, he never wavered, no matter what the other side threw at him. And they threw a lot his way. Dan’s wife, Ruth, is a nurse who often comes home late after a long shift in the hospital. One night she pulled up to their home and found that someone had carefully placed roofing nails, pointy-side up, all over the driveway. It happened to them both several times.

  Dan was harassed almost daily at the capitol by the protesters. And his was the first name listed on a death threat sent to GOP senators that warned:

  Please put your things in order because you will be killed and your familes [sic] . . . due to your actions in the last 8 weeks . . . I hope you have a good time in hell. Read below for more information on possible scenarios in which you will die. . . . We have all planned to assult [sic] you by arriving at your house and putting a nice little bullet in your head. . . . We Will ‘get rid of’ (in which I mean kill) you.”3

  Dan was unintimidated—and when the moment came, he voted for our reforms.

  Dan stood with me. Now, as the senate recall elections geared up, it was my turn to stand with him.

  The truth is, Dan had no chance of winning. Even before the vote on Act 10, his poll numbers were upside down. His district was becoming increasingly liberal, and he had been badly damaged when he ran unsuccessfully for Congress in 2010 against U.S. Representative Ron Kind, who decimated him with negative ads. Still, I believe if Dan’s race had come a year later, after the results of Act 10 were in, he might have survived. But as it was, he had to run before the people of his district had a chance to see the positiv
e results.

  At one point, as I was preparing to do an event for Dan, one of my advisers asked me why I was spending time and energy on Dan’s race, when there were other tough fights where I could make a difference. My answer was simple: because Dan had done something courageous. I owed it to him as a matter of personal loyalty. And I wanted others to know that when they stuck their necks out on tough votes, they could count on me to be in the trenches fighting beside them.

  We raised an impressive $12.5 million to fight the senate recalls, but the unions poured in an unprecedented $25 million—outspending us two to one. The unions took over an entire floor of the Madison Concourse Hotel to run their campaigns. When we put up our first ad buy in Dan’s district, they came back with a buy double our size.

  The message was unmistakable: Don’t even think about it. This one is ours.

  As expected, Dan lost his seat in the recall. Yet to this day, he has no regrets. “I was doing my job,” he said after it was all over. “People elected me to make tough decisions.”4

  Protesters did show up at his ballpark, and some season ticket holders did cancel their subscriptions. But his team has not only survived, it has also thrived. In 2012, the La Crosse Loggers won their first Northwoods League championship. And today, Dan Kapanke walks with his head held high. He is the epitome of a leader who cares more about the next generation than the next election. We need more leaders like him.

  Dan’s race was not the only one where we were in trouble. We also were certain to lose Senator Randy Hopper’s seat—which he had barely won in 2010. Randy’s troubles also had little to do with Act 10. He had a very public split with his wife because of his relationship with a twenty-five-year-old former capitol staffer, which did not go over well in his conservative, Christian district.

  So from the very beginning, we started the senate recall elections down by two seats. With those two races out of reach, the Democrats needed to pick up only one more seat to take control of the senate. In other words, we had to sweep all four of the remaining races—Sheila Harsdorf, Rob Cowles, Luther Olsen, and Alberta Darling—to keep our majority.