Wisconsin Education Ass'n Council v. Walker

                            In the

United States Court of Appeals
              For the Seventh Circuit

Nos. 12-1854, 12-2011 & 12-2058

W ISCONSIN E DUCATION A SSOCIATION C OUNCIL, et al.,

                                              Plaintiffs-Appellees,
                                                Cross-Appellants,
                                v.


S COTT W ALKER, Governor of Wisconsin, et al.,

                                          Defendants-Appellants,
                                                Cross-Appellees.
A PPEAL OF:

   K RISTI L AC ROIX, et al.,
                                           Proposed Intervenors/
                                     Appellants, Cross-Appellees.


           Appeals from the United States District Court
              for the Western District of Wisconsin.
         No. 11-cv-00428—William M. Conley, Chief Judge.



   A RGUED S EPTEMBER 24, 2012—D ECIDED JANUARY 18, 2013




 Before B AUER, F LAUM, and H AMILTON, Circuit Judges.
  F LAUM, Circuit Judge. In 2011, the Wisconsin Legislature
passed Act 10, a budget repair bill proposed by recently
2                         Nos. 12-1854, 12-2011 & 12-2058

elected Governor Scott Walker. Act 10 significantly
altered the state’s public employee labor laws, creating
two distinct classes of public employees—a select group
of “public safety employees” with the remainder
classified as “general employees.” Among other things,
the Act prohibited general employees from collectively
bargaining on issues other than “base wages,” imposed
rigorous recertification requirements on them, and pro-
hibited their employers from deducting union dues
from paychecks. The Act did not, however, subject public
safety employees or their unions to the same require-
ments; they kept the same rights they had under the
pre-Act 10 scheme. The proposal and subsequent enact-
ment of Act 10 was controversial and received nation-
wide publicity. See Wis. Right to Life State Political
Action Comm. v. Barland, 

664 F.3d 139, 144-45

 (7th Cir.
2011).
   Plaintiffs and cross-appellants, representing seven of
Wisconsin’s largest public sector unions (the “Unions”),
filed suit against defendants-appellants Governor Scott
Walker and other state actors, challenging three provi-
sions of the statute—the limitations on collective bar-
gaining, the recertification requirements, and a prohibi-
tion on payroll deduction of dues—under the Equal
Protection Clause. They also challenged the payroll
deduction provision under the First Amendment. The
district court invalidated Act 10’s recertification and
payroll deduction provisions, but upheld the statute’s
limitation on collective bargaining. We now uphold Act 10
in its entirety.
Nos. 12-1854, 12-2011 & 12-2058                        3

                     I. Background
 A. Factual Background
  Wisconsin grants public sector employees the right to
bargain collectively through two principal labor laws—the
Municipal Employment Relations Act (“MERA”) and
the State Employee Labor Relations Act (“SELRA”)—that
define the rights of employees and unions as well as
their relationship with governmental employers. Act 10
amended these statutes, imposing new burdens on a
group labeled “general employees.” 2011-

2012 Wis. Legis. Serv. 29

 (West). Unions representing “public safety em-
ployees,” however, continued operating under the
pre-Act 10 scheme. Proposal and enactment of Act 10
triggered widespread protest from Wisconsin’s public
sector labor unions, including the Unions’ challenge to
the constitutionality of certain provisions of Act 10.


   1. Act 10 Creates Two Categories of Public Employees
  All of the Unions’ constitutional claims arise from
the legislature’s decision to subject general employees
but not public safety employees to Act 10’s restrictions
on union activity. All employees governed by MERA
and SELRA are “general employees” unless specifically
identified as “public safety employees” in Act 10. In
creating this distinct group, the Act cross-references
seven of the twenty-two occupations listed in a separate
statute, which governs the Wisconsin Public Employee
Trust Fund. See 

Wis. Stat. § 40.02

(am). Under SELRA,
Act 10 identifies state troopers and state motor vehicle
4                           Nos. 12-1854, 12-2011 & 12-2058

inspectors as public safety employees. 

Wis. Stat. § 111.81

(15r). Act 10 did not, however, identify the
Capitol Police and the University of Wisconsin Police as
public safety employees, even though both occupations
qualified as such under the trust fund statute. Compare

Wis. Stat. § 40.02

(am), with 

Wis. Stat. § 111.81

(15r). Act 10’s
list of public safety employees under MERA is some-
what longer, including (1) police officers, (2) fire fighters,
(3) deputy sheriffs, (4) county traffic police officers, and
(5) village employees that perform fire or police protec-
tion. 

Wis. Stat. § 111.70

(1)(mm).
  Notably relevant to the arguments in this appeal, when
Governor Walker ran for election in 2010, only five
public employee organizations endorsed his candidacy
during the campaign: (1) the Wisconsin Troopers Associa-
tion, which represents state troopers and motor
vehicle inspectors; (2) the Milwaukee Police Association;
(3) the Milwaukee Professional Fire Fighters Associa-
tion; (4) the West Allis Professional Police Association;
and (5) the Wisconsin Sheriffs and Deputy Sheriffs Associa-
tion Political Action Committee. Each of these organiza-
tions represents employees categorized as public safety
employees under Act 10. The public safety employee
definition, however, also includes employee organiza-
tions that opposed or failed to endorse the governor.
For instance, all state, municipal, and village police
officers and firefighters qualify as public safety em-
ployees even though only those in Milwaukee and police
officers in West Allis endorsed Walker. In addition, the
Nos. 12-1854, 12-2011 & 12-2058                            5

Professional Firefighters of Wisconsin 1 and the Wisconsin
Professional Police Association endorsed Walker’s oppo-
nent. And the head of the Madison firefighters’ union
called for a general strike in response to Act 10, despite
its employees’ public safety classification.


    2.   Unions Challenge Three Parts of Act 10
  The Unions challenge three different parts of Act 10:
(1) limitations on the permissible collective bargaining
subjects of general employees; (2) stricter recertification
requirements for general employee unions; and (3) a
prohibition on the payroll deduction of union dues for
general employees.
  First, prior to Act 10, MERA and SELRA permitted public
employees to collectively bargain over a broad array
of subjects including their wages and conditions of em-
ployment. Moreover, these unions could negotiate
“fair-share” agreements, which require employees
opting out of union membership to pay “their proportion-
ate share of the cost of the collective bargaining process
and contract administration.” See 

Wis. Stat. § 111.81

(9).
Act 10, however, limits general employee unions to the
single topic of the “total base wages and excludes any
other compensation.” 

Wis. Stat. §§ 111.70

(1)(a), (4)(mb),
111.81(1), 111.91(3). It also forbids fair-share agreements.

Wis. Stat. §§ 111.70

(2), 111.845.


1
  The president of the Professional Firefighters of Wisconsin
later ran against Governor Walker’s lieutenant governor in
a recall election seeking to oust both Governor Walker and
his lieutenant governor.
6                          Nos. 12-1854, 12-2011 & 12-2058

  Next, MERA and SELRA formerly permitted municipal
or state employees to petition the Wisconsin Employ-
ment Relations Commission to hold an election to select
a particular union as the employees’ exclusive bar-
gaining agent. Certification required a simple majority.
Once certified, the union remained the employees’ exclu-
sive agent until thirty percent of the employees petitioned
for a decertification election. That election required a
simple majority to certify a union as the exclusive collec-
tive bargaining representative. Act 10, on the other
hand, requires general employee unions to submit to an
annual “recertification” election in which an absolute
majority—“at least 51 percent of the votes of all of the
general . . . employees in the collective bargaining unit”
(not just those voting)—must approve the union to
retain its status as the employees’ agent. 

Wis. Stat. § 111.70

(4)(d)3.b., 111.83(3)(b).
  Third, under a separate statute, Wisconsin permitted
state employees to allow their employer to deduct a
portion of their salaries for “[p]ayment of dues to
employe[e] organizations,” including unions. Municipali-
ties could do likewise, provided that they extended
the opportunity to all employee organizations with mem-
bers in the particular unit. See Milwaukee Fed’n of
Teachers Local 252 v. Wis. Emp. Relations Comm’n, 

266 N.W.2d 314

 (Wis. 1978). Act 10 prohibits all pay-
roll deductions for general employees. 

Wis. Stat. § 20.921

(1)(a)2.
Nos. 12-1854, 12-2011 & 12-2058                            7

  B. Procedural Background
  The Unions filed suit in federal district court alleging
that all three provisions violated the Equal Protection
Clause because of the Act’s differential treatment of
public safety and general employees. They also claimed
that the prohibition on payroll deductions for general
employees violated the First Amendment on several
grounds, including that the payroll deduction prohibi-
tion targeted employees who had not endorsed or other-
wise politically supported Governor Walker when he
ran for office in 2010.


    1.   General Employees Move to Intervene
  Several municipal employees (the “Employees”) moved
to intervene in defense of Act 10. See Fed. R. Civ. P. 24(a).
They were not members of the union, but pre-Act 10
law required them to pay union expenses under a fair-
share agreement. After Act 10, the Employees were classi-
fied as general employees and thus no longer responsible
for these dues.


    2.   Motion for Summary Judgment
  The state moved for judgment on the pleadings, Fed. R.
Civ. P. 12(c), and the Unions cross-moved for sum-
mary judgment on all claims, Fed. R. Civ. P. 56. Because
the facts in the case are undisputed, the district court
considered the motions together. The court also con-
sidered the Employees’ motion to intervene.
8                          Nos. 12-1854, 12-2011 & 12-2058

   The district court applied rational basis review to the
equal protection claims and upheld the limitation on
general employee collective bargaining. Wis. Educ. Ass’n
Council v. Walker, 

824 F. Supp. 2d 856

 (W.D. Wis. 2012).
It found a rational basis in the state’s belief that
applying Act 10 to public safety employees might result
in a retaliatory strike that jeopardized the public welfare.
A similar strike by the general employees, the state be-
lieved, would be less damaging. 

Id. at 866-68

. However,
the district court found no rational basis for treating the
two groups differently with respect to the recertifica-
tion and payroll deduction provisions. 

Id. at 868-70

. It
further concluded that the payroll deduction provision
violated the First Amendment because the court deter-
mined that the differing political viewpoints of, and
endorsements by, employees in the two classifications
were the only possible justifications for Act 10’s prohibi-
tion on payroll deductions for general employees. 

Id. at 870-76

. Consequently, the district court invalidated
these portions of Act 10 and enjoined the state from
enforcing the recertification and payroll deduction provi-
sions. Defendants now appeal the recertification and
payroll deduction judgment, while the Unions cross-
appeal the adverse collective bargaining ruling.
   The district court also denied the Employees’ motion
to intervene, concluding that their unique interest in the
litigation was only “tangential” and that the state could
adequately represent their interests. 

Id. at 860-61

. Em-
ployees now appeal the denial of this motion to intervene.
Nos. 12-1854, 12-2011 & 12-2058                           9

                      II. Discussion
  We review a district court’s ruling on summary judg-
ment de novo, making all inferences of fact in favor of
the non-moving party. Bennett v. Roberts, 

295 F.3d 687, 694

 (7th Cir. 2002). We apply the same standard of
review to a district court’s ruling on a motion for judg-
ment on the pleadings. ProLink Holdings Corp. v. Fed. Ins.
Co., 

688 F.3d 828, 830

 (7th Cir. 2012).


  A. Act 10 Does Not Violate the First Amendment
  Act 10’s payroll deduction prohibitions do not violate
the First Amendment. The Unions offer several different
First Amendment theories to rebut the compelling defer-
ence of rational basis review required under applicable
law. Ultimately, none apply because the Supreme Court
has settled the question: use of the state’s payroll systems
to collect union dues is a state subsidy of speech that
requires only viewpoint neutrality. See Ysursa v. Pocatello
Educ. Ass’n, 

555 U.S. 353, 358-59

 (2009); see also Regan
v. Taxation with Representation, 

461 U.S. 540, 548

(1983). Admittedly, the Unions do offer some evidence
of viewpoint discrimination in the words of then-Senate
Majority Leader Scott Fitzgerald suggesting Act 10, by
limiting unions’ fundraising capacity, would make it
more difficult for President Obama to carry Wisconsin
in the 2012 presidential election. While Senator
Fitzgerald’s statement may not reflect the highest of
intentions, his sentiments do not invalidate an otherwise
constitutional, viewpoint neutral law. Consequently,
10                           Nos. 12-1854, 12-2011 & 12-2058

Act 10’s prohibition on payroll dues deduction does not
violate the First Amendment.


  1.   Use of the State’s Payroll System to Collect Union
       Dues Subsidizes—Rather than Burdens—Speech
  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. See Smith v. City of
Chi., 

457 F.3d 643, 655-56

 (7th Cir. 2006). While the First
Amendment prohibits “plac[ing] obstacles in the path” of
speech, Regan, 

461 U.S. at 549

 (citation omitted), nothing
requires government to “assist others in funding the
expression of particular ideas, including political ones,”
Ysursa, 

555 U.S. at 358

; see also Harris v. McRae, 

448 U.S. 297, 318

 (1980) (noting that Constitution “does not confer an
entitlement to such funds as may be necessary to realize
all the advantages of” a constitutional right). Thus, even
though “publicly administered payroll deductions for
political purposes can enhance the unions’ exercise of First
Amendment rights, [states are] under no obligation to aid
the unions in their political activities.” Ysursa, 

555 U.S. at 359

.
  In Ysursa, the Supreme Court squarely held that the
use of a state payroll system to collect union dues from
public sector employees is a state subsidy of speech. 

Id.

As the Court explained, “the State’s decision not to
[allow payroll deduction of union dues] is not an abridg-
ment of the unions’ speech; they are free to engage in
such speech as they see fit.” 

Id.

 Other circuits have
Nos. 12-1854, 12-2011 & 12-2058                             11

reached the same conclusion. See Utah Educ. Ass’n v.
Shurtleef, 

565 F.3d 1226, 1229-31

 (10th Cir. 2009); Toledo Area
AFL-CIO Council v. Pizza, 

154 F.3d 307, 319-21

 (6th Cir.
1998); S. Car. Educ. Ass’n v. Campbell, 

883 F.2d 1251, 1256-57

 (4th Cir. 1989); Brown v. Alexander, 

718 F.2d 1417, 1422-23

 (6th Cir. 1983); Ark. State Highway Emps. Local 1315
v. Kell, 

628 F.2d 1099, 1102

 (8th Cir. 1980). Like the
statutes in these cases, Act 10 places no limitations on the
speech of general employee unions, which may continue
speaking on any topic or subject. Thus, Ysursa controls,
and we analyze Act 10 under the Supreme Court’s speech
subsidy cases.
  The Unions try to distinguish Ysursa by noting that
the prohibition in Ysursa applied across-the-board to
unions representing all public employees, unlike Act 10’s
prohibition targeting only general employees. Thus, the
Unions argue, unlike the subsidy in Ysursa, Act 10
actively imposes burdens on the speech of unions repre-
senting general employees. Indeed, two recent district
court cases have relied on precisely this argument to
distinguish Ysursa in finding First Amendment prob-
lems with payroll deduction statutes similar to Act 10.
See Bailey v. Callaghan, 

873 F. Supp. 2d 879, 885-86

(E.D. Mich. 2012); United Food & Commercial Workers
Local 99 v. Brewer, 

817 F. Supp. 2d 1118, 1125

 (D. Ariz.
2011).
  But the Unions’ reasoning falters for two reasons: Act 10
erects no barrier to speech, and speaker-based discrim-
ination is permissible when the state subsidizes
speech. First, the prohibition on payroll deductions for
12                          Nos. 12-1854, 12-2011 & 12-2058

general employees does not erect a barrier to the Unions’
speech. As the district court here recognized, Act 10
diminishes speech only because it diminishes “the union’s
ability to fund its speech.” Walker, 

824 F. Supp. 2d at 871

. Thus, the “obstacle” to speech here is the cost of
speaking, an obstacle the state itself has not created. And
while the state may not erect “obstacles in the path of
[the unions’] exercise of . . . freedom of speech, it need
not remove those [obstacles] not of its own creation.”
Regan, 

461 U.S. at 549

-50 (quoting Harris, 

448 U.S. at 316

)
(original brackets omitted); see also Campbell, 

883 F.2d at 1257

 (“The state’s failure to authorize payroll deduc-
tions for the [union] does not deny [union] members
the right to associate, to speak, to publish, to recruit
members, or to otherwise express and disseminate their
views.”); Brown, 

718 F.2d at 1423

 (same). Importantly, Act
10 does not present a situation where the state itself
actively erected an obstacle to speech.2 Thus, nothing
supports treating the selective prohibition of payroll
deductions as a burden on or obstacle to the speech
of general employee unions. Instead, Act 10 simply sub-
sidizes the speech of one group, while refraining from
doing so for another.


2
   The First Amendment would undoubtedly prohibit a state
law that itself raised the cost of the Unions’ speech by, for
example, requiring payment of a fee to speak. See Forsyth
Cnty., Ga. v. Nationalist Movement, 

505 U.S. 123, 136-37

 (1992)
(invalidating law imposing content-based fee on speech). Act 10
imposes no costs of its own, though. It merely declines to pay
a portion of the preexisting costs.
Nos. 12-1854, 12-2011 & 12-2058                          13

  Second, such speaker-based distinctions are permissible
when the state subsidizes speech. Nothing in the Con-
stitution requires the government to subsidize all speech
equally. A government subsidy “that discriminates
among speakers does not implicate the First Amendment
unless it discriminates on the basis of ideas.” Leathers
v. Medlock, 

499 U.S. 439, 450

 (1991); see also Nat’l Endow-
ment for the Arts v. Finley, 

524 U.S. 569, 557-58

 (1998)
(noting legislatures “may allocate competitive funding
according to criteria that would be impermissible
were direct regulation of speech . . . at stake” and that
such funding is not “discriminat[ion] on the basis of
viewpoint [but] . . . merely . . . fund[ing] one activity to
the exclusion of the other” (citation omitted)). As Regan
explained, legislative “selection of particular entities or
persons for entitlement to this sort of largesse is
obviously a matter of policy and discretion not [ordinarily]
open to judicial review[.]” 

461 U.S. at 549

 (internal quota-
tions omitted). Indeed, the speech subsidy upheld in
Regan discriminated on the basis of speaker—veterans’
groups who engaged in lobbying could claim section
501(c)(3) status but other lobbying groups could not. 

Id. at 548-49

; see also Campbell, 

883 F.2d at 1255-56

 (no First
Amendment implications to statute that discriminated
on the basis of speaker in authorizing payroll deduction
for some public employee organizations but not others).
Thus, that the state gave one category of public employees
the benefit of payroll dues deduction does not run
afoul of the First Amendment.
 Unable to distinguish Act 10 from Ysursa and the
Court’s other speech subsidy cases, the Unions also liken
14                          Nos. 12-1854, 12-2011 & 12-2058

the state’s payroll deduction system to a nonpublic fo-
rum.3 See, e.g., Rosenberger v. Rector & Visitors of the Univ.
of Va., 

515 U.S. 819, 830, 834

 (1995) (applying nonpublic
forum analysis to a student activities fund used to reim-
burse the expressive activity of student organizations,
noting that the fund was a “forum more in a meta-
physical than a spatial or geographic sense”). But
applying Rosenberger to this case would require us to
ignore Ysursa, where the Supreme Court settled this
question: it evaluated state-imposed restrictions on a
union’s use of state payroll systems under subsidy cases
like Regan, rather than under Rosenberger’s nonpublic
forum framework. 

555 U.S. at 359

 (citing Regan, 

461 U.S. at 549

); but see also Legal Servs. Corp. v. Velazquez, 

531 U.S. 533, 544

 (2001) (noting in a subsidy case that certain
“limited forum cases . . . may not be controlling in a strict
sense, yet they do provide some instruction”). 4 In fact,



3
  Regulation of nonpublic forums requires some level of
heightened scrutiny. See Perry Educ. Ass’n v. Perry Local Educ.
Ass’n, 

460 U.S. 37, 49

 (1983). Restrictions on the use of
nonpublic forums must be viewpoint neutral and reasonable
in light of the purpose served by the forum. 

Id.

 Although the
Court has never named this level of scrutiny, in requiring a
connection between the restriction and the purpose of the
forum, Perry appears to require more scrutiny than simple
rational basis, which will sustain a viewpoint neutral law
that serves any legitimate government objective.
4
  Velazquez involved a subsidy to legal aid organizations
that discriminated on the basis of viewpoint, requiring as a
                                               (continued...)
Nos. 12-1854, 12-2011 & 12-2058                           15

the Unions cite no case applying nonpublic forum
analysis to a state payroll system, and this Court is not
aware of any. Other circuits likewise have consistently
evaluated state payroll deductions as speech subsidies.
See Shurtleef, 

565 F.3d at 1229-31

; Pizza, 

154 F.3d at 319-21

; Campbell, 

883 F.2d at 1256-57

; Brown, 

718 F.2d at 1422-23

; Kell, 

628 F.2d at 1102

.
  Thus, Ysursa requires us to analyze Act 10 under First
Amendment cases involving speech subsidies. Under
those cases, Act 10 presents no free speech problem
unless it invidiously discriminates on the basis of view-
point.


    2.   Act 10 Does Not Invidiously Discriminate on the
         Basis of Viewpoint
  While the First Amendment does not require govern-
ment to subsidize all speech equally, it does proscribe
subsidies that discriminate on the basis of viewpoint.
Regan, 

461 U.S. at 548

; see also Ysursa, 

555 U.S. at 359

;
Rosenberger, 

515 U.S. at 834

. Act 10, however, is viewpoint


4
  (...continued)
condition of payment that the legal aid organization refrain
from raising “arguments and theories Congress finds unaccept-
able[.]” 

531 U.S. at 546

. Thus, although Velazquez referenced
the Court’s nonpublic forum cases, it neither created nor
applied an analogous form of heightened scrutiny in the
subsidy context. Instead, by invalidating the viewpoint-based
subsidy, Velazquez is entirely consistent with Regan’s sole
limitation on speech subsidies—viewpoint neutrality.
16                          Nos. 12-1854, 12-2011 & 12-2058

neutral because it is neither facially discriminatory nor
a neutral façade for viewpoint discrimination.


      a.   Act 10 Is, on Its Face, Viewpoint Neutral
  On its face, Act 10 is neutral—it does not tie public
employees’ use of the state’s payroll system to speech
on any particular viewpoint. See Velazquez, 

531 U.S. at 546-48

 (speech subsidy viewpoint discriminatory when
conditioned on recipient advancing particular view-
point). Nevertheless, the Unions argue that Act 10
facially discriminates on the basis of viewpoint because
general employee unions and public safety unions will
necessarily espouse different viewpoints. Maybe they
do. But this argument merely recycles the Unions’ earlier
assertion that speaker-based discrimination in the
subsidy context requires heightened scrutiny. It does
not. See Regan, 

461 U.S. at 549

-50 (citing Harris, 

448 U.S. at 316

). The cases cited by the Unions, which invalidated
laws discriminating on the basis of speaker, confirm
this principle. Each one—unlike Act 10—involved a law
that actively created barriers to speech rather than
mere subsidies. For example, Citizens United v. FEC in-
volved a law that prohibited speech by forbidding
certain speakers from spending money, akin to pro-
hibiting speech altogether. 

130 S. Ct. 876, 896-97

 (2010).
Similarly, the statute in Sorrell v. IMS Health, Inc.—like that
in Citizens United—actually prevented pharmaceutical
manufactures from engaging in certain types of commer-
Nos. 12-1854, 12-2011 & 12-2058                              17

cial speech. 

131 S. Ct. 2653

, 2663 (2012).5 While Sorell and
Citizens United support the unconstitutionality of
speaker-based discrimination in statutes that prohibit or
burden speech, Regan controls on government subsidies
of speech: speaker-based distinctions are permissible.
Regan, 

461 U.S. at 548-49

.
  The mere fact that, in practice, the two categories
of unions may express different viewpoints does not
render Act 10 viewpoint discriminatory. The two groups
here are no more likely to express different viewpoints
(and the government subsidy no more likely to ad-
vantage a particular viewpoint) than the speaker-based
distinction sanctioned in Regan. In that case, the advan-
taged group, veterans’ organizations, undoubtedly held
different viewpoints than those excluded from the
subsidy; yet, the Court upheld the statute. 

Id. at 550-51

.
Indeed, the Unions’ argument proves too much: if different
speakers necessarily espouse different viewpoints, then
any selective legislative funding decision would violate
the First Amendment as viewpoint discriminatory. Such


5
  The Unions also suggest Rosenberger requires finding abridg-
ment of free speech when a speech subsidy makes speaker-
based distinctions. But that case actually recognizes just the
opposite: Rosenberger explained that Regan, in upholding a
speech subsidy, “relied on a distinction based on preferential
treatment of certain speakers—veterans’ organizations—and
not a distinction based on the content or messages of those
groups’ speech.” Rosenberger, 

515 U.S. at 834

. Thus, Rosenberger
actually reaffirms Regan’s determination that government
may subsidize the speech of some speakers but not others.
18                          Nos. 12-1854, 12-2011 & 12-2058

an interpretation of the First Amendment would leave
legislatures with the unpalatable choice of funding all
expressive activity or none at all.
  Retreating somewhat from the argument that public
safety and general employee unions necessarily espouse
different viewpoints, the Unions next argue that the
public safety/general employee distinction is “likely” to
have a viewpoint discriminatory effect. See Southworth
v. Bd. of Regents of the Univ. of Wis. Sys., 

307 F.3d 566, 593-94

 (7th Cir. 2002); Chi. Acorn v. Metro. Pier & Exposition
Auth., 

150 F.3d 695, 699-700

 (7th Cir. 1998). The courts
in both Southworth and Chicago Acorn applied a
nonpublic forum analysis to invalidate facially neutral
policies that had the effect of viewpoint discrimination.
Southworth, 

307 F.3d at 593-94

; Chi. Acorn, 

150 F.3d at 699-700

. In both cases, however, this effect inhered in
the policy classification itself. The Chicago Acorn regula-
tion, for example, waived rental fees for applicants who
might generate favorable publicity. 

150 F.3d at 699

. This
criterion, however, would inherently produce a discrimina-
tory effect: “As applied to political applicants . . ., a
favorable-publicity criterion is especially likely to have
political consequences, since the only political users of
the pier who will generate large amounts of favorable
publicity are respectable, popular politicians and re-
spected, well-established political groups; pariahs need
not apply.” 

Id. at 699

 (emphasis omitted). So too in
Southworth, which involved two funding standards for
student activities grants. One standard favored student
organizations that had previously received funding; the
other favored long-established organizations. 

307 F.3d at 593

. Because political and religious groups had previ-
Nos. 12-1854, 12-2011 & 12-2058                             19

ously been excluded from receiving funding, these
two standards inherently disadvantaged religious and
politically partisan viewpoints. 

Id. at 593-94

. Unlike the
classifications in Chicago Acorn and Southworth, however,
Act 10’s public safety and general employee distinction
has no inherent connection to a particular viewpoint.
In short, in Chicago Acorn and Southworth, a causal con-
nection existed between the classifications and the dis-
criminatory effect. In contrast, the connection between
the classification in Act 10 and the Unions’ perceived
discriminatory effect is merely coincidental: a particular
union’s political views do not inhere in its status as a
public safety union.6 Consequently, the Unions’ reliance
on Chicago Acorn and Southworth is misplaced.
  The distinction between public safety and general
employee unions in Act 10 is facially neutral, and the
Unions do not succeed in showing otherwise. Thus, we
next consider whether Act 10 is a façade for invidious
discrimination.


      b. Act 10 Is Not a Façade for Invidious Discrim-
         ination
  Because Act 10 itself does not facially discriminate on
the basis of viewpoint, the Unions raise three other argu-



6
   The Unions, of course, suggest that the relationship between
the unions’ political views and status as a public safety union
is no mere coincidence. But, as explained in the next section,
we cannot conclude Act 10 is a neutral façade for viewpoint
discrimination.
20                           Nos. 12-1854, 12-2011 & 12-2058

ments suggesting that Act 10 presents a facially neutral
façade for invidious viewpoint discrimination. These
arguments require peering past the text of the statute
to infer some invidious legislative intention. We decline
this invitation.7 First, the Unions rely on the correlation
between particular unions’ political endorsements of
Governor Walker and the unions’ statuses as public
safety unions. Second, the Unions argue that Act 10 is
underinclusive in a way that makes it “a mere pretext
for an invidious motive.” See Ridley v. Mass. Bay Trans.
Auth., 

390 F.3d 65, 86

 (1st Cir. 2004). Finally, the Unions
look to the statements of a particular legislator to find
an invidious intent to discriminate.
  The correlation between political endorsements and
access to the payroll system does not render Act 10 view-
point discriminatory. That the benefits of Act 10’s
subsidy may fall more heavily on groups with one par-



7
  The dissent suggests that Cornelius v. NAACP Legal Defense &
Educ. Fund, 

473 U.S. 788, 811

 (1985), compels a searching look
beyond the text of the statute. (Dissenting op. at 49-50, 53.) We
do not read Cornelius that broadly. Cornelius simply “decline[d]
to decide in the first instance whether the exclusion of respon-
dents [from the Combined Federal Campaign] was im-
permissibly motivated by a desire to suppress a particular
point of view.” 

Id. at 812-13

. “Respondents,” the Court
noted, were “free to pursue this contention on remand.” 

Id. at 813

. We find nothing in this passage or any other language
from Cornelius that encourages federal courts to search for
some invidious motive when confronted with a facial chal-
lenge to a facially-neutral statute.
Nos. 12-1854, 12-2011 & 12-2058                                    21

ticular viewpoint does not transform a facially neutral
statute into a discriminatory one. In Hill v. Colorado, for
example, a statute prohibited people from approaching
within eight feet of any other person outside a
healthcare facility for purposes of any oral protest, educa-
tion, or counseling. 

530 U.S. 703, 709-10

 (2000). According
to the Court, the statute was neither content- nor view-
point-based, even though the legislative history made
“clear” that protests near abortion clinics “primarily
motivated” the statute and its burdens would fall dispro-
portionately on the speech of those protestors.8 

Id. at 715

.


8
  We see viewpoint neutrality as a broadly applicable require-
ment to all laws implicating First Amendment concerns with a
test that does not vary. Thus, unlike the dissent, we do not
distinguish among cases analyzing viewpoint neutrality in
the time, place, and manner context and the circumstances
present here.
  Moreover, time, place, and manner regulations of speech
must satisfy additional requirements beyond those imposed on
regulations of nonpublic forums. While regulation of non-
public forums requires only viewpoint neutrality and “rea-
sonable[ness] in light of the purpose served by the forum,”
Cornelius, 

473 U.S. at 806

 (citing Perry Educ. Ass’n, 

460 U.S. at 49

),
the First Amendment requires much more of time, place,
and manner restrictions. They must be content neutral (which
includes both viewpoint and subject-matter neutrality, see Hill,

530 U.S. at 723

); serve a legitimate, substantial government
interest; be narrowly tailored to serving that interest; and
leave open ample alternative means of communication. Ward
v. Rock Against Racism, 

491 U.S. 781, 798-99

 (1989). Thus, it
                                                       (continued...)
22                          Nos. 12-1854, 12-2011 & 12-2058

Indeed, the Supreme Court has made clear that a policy
is not “vulnerable to constitutional assault . . . because
it systematically and predictably burdens most heavily
those groups whose viewpoints are out of favor with
the . . . mainstream.” Christian Legal Soc’y v. Martinez, 

130 S. Ct. 2971, 2994

 (2010); see also Madsen v. Women’s Health
Ctr., Inc., 

512 U.S. 753, 763

 (1994) (“[T]he fact that the
injunction covered people with a particular viewpoint
does not itself render the injunction content or
viewpoint based.”); Pilsen Neighbors Cmty. Council v.
Netsch, 

960 F.2d 676

, 688 & n.9 (7th Cir. 1992) (noting
“plaintiffs were denied access into the program because
of their status, not because of their views”). Act 10 is no
different—that it disproportionately impacts groups
with one particular viewpoint does not transform its
facially neutral language into an invidiously discrimina-
tory statute. Moreover, as a factual matter, the public
safety category includes several unions that did not
endorse Governor Walker—for example, none of the
municipal police and firefighters unions, except those
in Milwaukee and West Allis, endorsed Governor Walker.
  Nor does the Unions’ underinclusivity argument fare
any better. According to the Unions, Act 10 is under-
inclusive because several occupations that ensure public


8
   (...continued)
seems counterintuitive that viewpoint neutrality would
receive closer judicial scrutiny in an area of speech like reg-
ulation of nonpublic forums than in an area subject to
stiffer constitutional requirements, like time, place, and
manner restrictions.
Nos. 12-1854, 12-2011 & 12-2058                              23

safety were omitted from the definition of “public safety
employees.” This underinclusivity, the Unions argue,
presents a facially neutral façade concealing “a govern-
mental attempt to give one side of a debatable public
question an advantage in expressing its views to the
people.” City of Ladue v. Gileo, 

512 U.S. 43, 51

 (1994) (inter-
nal quotations omitted); see also Ridley, 

390 F.3d at 86

(underinclusive regulations can suggest “viewpoint
discrimination is afoot”). The district court seemingly
agreed, concluding that “the only apparent reason for
discriminating between the [two types of unions] is their
different viewpoints.” Walker, 

824 F. Supp. 2d at 876

(emphasis omitted). Indeed, the Supreme Court has, on
occasion, expressed reservations about underinclusive
regulations of speech. In City of Ladue, the Court did
recognize that “the notion that a regulation of speech
may be impermissibly underinclusive is firmly grounded
in basic First Amendment principles,” and that “through
the combined operation of a general speech restriction
and its exemptions, the government might seek to select
the permissible subjects for public debate and thereby
to control . . . the search for political truth.” 512 U.S. at 51
(emphasis in original) (internal quotations omitted).9
Likewise, Brown v. Entertainment Merchants Ass’n ex-
plained that “[u]nderinclusiveness raises serious doubts


9
   The Court never reached the question of whether the exemp-
tions in City of Ladue rendered the statute underinclusive in
a way that violated the First Amendment, though, because
the Court concluded that the ban itself—regardless of any
exemptions—violated the First Amendment. 512 U.S. at 58.
24                          Nos. 12-1854, 12-2011 & 12-2058

about whether the government is in fact pursuing the
interest it invokes, rather than disfavoring a particular
speaker or viewpoint.” 

131 S. Ct. 2729, 2740

 (2011).
  Neither case applies here, though. First, in City of
Ladue, the Court worried only about underinclusivity
driven by content discrimination. Thus, the First Amend-
ment does not forbid all underinclusivity but only
underinclusivity that “restricts too little speech because
[the law’s] exemptions discriminate on the basis of the signs’
messages.” 512 U.S. at 51 (emphasis added). Only con-
tent-based or viewpoint-based exemptions implicate the
concerns voiced in City of Ladue. The Court re-affirmed
this view in R.A.V. v. City of St. Paul, explaining that
“the First Amendment imposes not an ‘under-
inclusiveness’ limitation but a ‘content discrimination’
limitation upon a State’s prohibition of proscribable
speech.” 

505 U.S. 377, 387

 (1992). As explained above, Act
10 contains no content- or viewpoint-discriminatory
exemption. Instead, its exemption differentiates on the
basis of speaker without reference to whatever
viewpoint that speaker may hold. Brown does not alter
this conclusion; in that case, the Court relied on
underinclusivity when determining whether the statute
was narrowly tailored so as to survive strict scrutiny.

131 S. Ct. at 2738

. Moreover, as the district court recog-
nized, both of these cases involved active prohibitions
on speech. Neither involved the situation in this case,
where the state merely declines to subsidize speech.
  Left with a facially viewpoint neutral state subsidy of
speech, both the Unions and the district court ultimately
Nos. 12-1854, 12-2011 & 12-2058                           25

rely on the floor statements of Senator Fitzgerald, who,
rising in support of Act 10, explained “[i]f we win this
battle, and the money is not there under the auspices
of the unions, certainly what you’re going to find is
President Obama is going to have a . . . much more
difficult time getting elected and winning the state of
Wisconsin.” Walker, 

824 F. Supp. 2d at 876

 n.17. This
singular comment, however overtly partisan, reveals
little of the intent of the legislature as a whole when it
enacted Act 10 or the governor when he introduced it.
See United States v. O’Brien, 

391 U.S. 367, 384

 (1968)
(noting “[w]hat motivates one legislator to make a
speech about a statute is not necessarily what motivates
scores of others to enact it”). The Supreme Court has
recognized as much. O’Brien refused to infer discrimina-
tory intent from the floor statements of three congress-
men, explaining that courts should not “strike down an
otherwise constitutional statute on the basis of an
alleged illicit legislative motive.” 

Id. at 383-86

. Likewise,
Hill declined to do precisely that, explaining that “the
contention that a statute is ‘viewpoint based’ simply
because its enactment was motivated by the conduct of
the partisans on one side of a debate is without support.”

530 U.S. at 724

. Indeed, in Hill the legislative record
showed that legislators passed the statute primarily to
address pro-life speech outside abortion clinics, yet
Hill nevertheless found the statute content neutral. 

Id. at 715

; see also 

id. at 724-25

 (noting anti-picketing ordinance
in Frisby v. Schultz, 

487 U.S. 474

 (1988), held content
neutral though “obviously enacted in response to the
activities of antiabortion protesters”). And in Campbell,
26                            Nos. 12-1854, 12-2011 & 12-2058

the Fourth Circuit refused the invitation to review the
legislative record for evidence of discriminatory intent
when the legislature permitted some unions to use
payroll deductions but prohibited another union from
doing so. 

883 F.2d at 1260-62

. In any event, we have
insufficient basis to ascribe Senator Fitzgerald’s personal
position to the entire legislature.1 0
  At bottom, the use of the state payroll system to
collect union dues is a state subsidy of speech. As such,
the distinction between public safety and general em-
ployees only violates the First Amendment if it discrimi-
nates on the basis of viewpoint. Because we conclude
that Act 10 is not viewpoint discriminatory, it does not
implicate the First Amendment and requires only
rational basis review.




10
  That is not to say that statements of legislative intent or
legislative purpose are never relevant in determining whether
the legislature acted with a viewpoint discriminatory motive
when choosing to subsidize certain speakers but not others.
For example, a statement of legislative purpose contained in
a preamble or other uncodified provision, or contained in a
conference or committee report could likely provide sig-
nificant evidence of the legislature’s discriminatory motive.
Here, we simply hold that one statement of a single legislator
does not require invalidation of an otherwise viewpoint
neutral and constitutional statute. When ruling a statute
unconstitutional, “the stakes are sufficiently high . . . to eschew
[the] guesswork” inherent in judicial scrutiny of legislators’
statements. O’Brien, 

391 U.S. at 384

.
Nos. 12-1854, 12-2011 & 12-2058                               27

  B. Act 10’s Provisions Survive Rational Basis Review
   The parties necessarily agree that rational basis
review governs the Unions’ equal protection claims
because Act 10 neither affects a “fundamental right[] nor
proceed[s] along suspect lines.” Heller v. Doe, 

509 U.S. 312, 319

 (1993). Under this standard, a law avoids constitu-
tional scrutiny as long as it bears a rational relationship
to a legitimate government interest. 

Id. at 320

; Smith,

457 F.3d at 652

. Importantly, we do not require the state
to “actually articulate” the law’s purpose or “produce
evidence to sustain the rationality” of the classification.
Heller, 

509 U.S. at 320

; see Univ. Prof’ls of Ill., Local 4100 v.
Edgar, 

114 F.3d 665, 667

 (7th Cir. 1997). Instead, the law
is presumed constitutional, and we impose a weighty
burden on the Unions—they must “negative every . . .
basis which might support” the law because we will
uphold it “if there is any reasonably conceivable state
of facts” supporting the classification. Heller, 

509 U.S. at 320

; see Williamson v. Lee Optical, 

348 U.S. 483, 487-88

(1955). This basis need not be in the record so long as
it finds “some footing in the realities of the subject ad-
dressed by the legislation.” Heller, 

509 U.S. at 321

.
  Wisconsin was free to impose any of Act 10’s restric-
tions on all unions. See Ysursa, 

555 U.S. at 359

(across-the-board payroll deduction limitations survive
rational basis review); Smith v. Ark. State Highway Emps.,
Local 1315, 

441 U.S. 463, 464-65

 (1979) (per curiam) (no
right to collective bargaining in general); see also Minn.
State Bd. for Cmty. Colls. v. Knight, 

465 U.S. 271, 287

 (1984)
(stating, in the context of collective bargaining, “[w]hen
28                          Nos. 12-1854, 12-2011 & 12-2058

government makes general policy, it is under no greater
constitutional obligation to listen to any specifically
affected class”). The Unions instead challenge as irrational
the division of public safety and general employees under
the Equal Protection Clause. They apparently recognize
that distinguishing certain unions that perform crucial
tasks survives rational basis review, but they emphatically
argue that the way Wisconsin divided the two groups
is irrational. According to the Unions, the only explana-
tion for the legislation is the extension of “rank political
favoritism” towards the unions that supported the gov-
ernor’s campaign. Specifically, they argue that under-
standing why Wisconsin classified state motor vehicle
inspectors as public safety employees but classified
prison guards, the University of Wisconsin Police, and
the Capitol Police as general employees requires “the
exercise of strained imagination.”
  In doing so, the Unions invite us to speculate about the
legislature’s motive, at least in cases, they argue, where
the distinctions between the two classes are “so discon-
nected” from a proffered purpose and “so closely con-
nected” to an illegitimate purpose. This argument has
ostensible appeal, but it is unsupported by our case
law. Indeed, under rational basis review, we cannot
search for the legislature’s motive. See O’Brien, 

391 U.S. at 383

 (“It is a familiar principle of constitutional law
that this Court will not strike down an otherwise con-
stitutional statute on the basis of an alleged illicit legisla-
tive motive.”). All that matters is whether the statute,
as written, furthers a legitimate government objective.
Once we find a “rational relationship between the
Nos. 12-1854, 12-2011 & 12-2058                             29

disparity of treatment and some legitimate govern-
mental purpose,” the act passes constitutional scrutiny.
Srail v. Vill. of Lisle, 

588 F.3d 940, 946

 (7th Cir. 2009). For
our purposes, animus only invalidates a law when no
rational basis exists. Flying J Inc. v. City of New Haven,

549 F.3d 538, 546

 (7th Cir. 2008) (holding “[a]nimus
comes into play only when [there is] no rational
reason or motive . . . for the injurious action taken by
the [legislature]”).
  The Unions’ reliance on U.S. Department of Agriculture
v. Moreno does not support their position that animus is
relevant to our inquiry. 

413 U.S. 528

 (1973). In Moreno,
Congress amended the requirements for receiving food
stamps to exclude groups of unrelated people living
together, sharing common cooking facilities, and pur-
chasing food in common. 

Id. at 530

. The Supreme
Court noted that Congress apparently attempted to
exclude “hippies” from fraudulently benefitting from
the system. 

Id. at 534

. The Court rejected the Govern-
ment’s contention that Congress could rationally
conclude that unrelated people living together were
more likely to abuse the system because fraudulent
hippies could simply alter their living arrangements
by using separate kitchens or purchasing food individu-
ally, while unrelated households truly in need of the
program would lack the financial resources to make such
an arrangement. 

Id. at 535-38

. The Court concluded that
Congress’s classification wholly failed to further the
government’s interest because those that abused the
system would continue to do so and those that Congress
intended to help would not—the amendment neither
30                         Nos. 12-1854, 12-2011 & 12-2058

furthered the program’s original purpose of benefiting
needy families nor limited the fraud perpetrated by
non-needy, unrelated people living together. See 

id. at 538

. Viewing Moreno in this manner makes the case no
different than any other rational basis case. Where, as in
Moreno, an act furthers no legitimate government
interest, it fails rational basis review. Moreno is not a
case, as the Unions urge, where the Court suggested
a statute would have passed rational basis review but
for animus towards a particular group.
  As unfortunate as it may be, political favoritism is
a frequent aspect of legislative action. We said as much
in Hearne v. Board of Education, 

185 F.3d 770, 775

 (7th Cir.
1999). There, members of the Chicago Teachers Union
challenged on various constitutional grounds, including
the Equal Protection Clause, an act of the Republi-
can-dominated legislature that severely curtailed
Chicago teachers’ job security relative to teachers in
other parts of the state. 

Id. at 773

. The unions argued,
in part, that the Republican legislature retaliated against
them for opposing Republicans in the previous election.

Id.

 We candidly remarked, “there is no rule
whereby legislation that otherwise passes the proper
level of scrutiny . . . becomes constitutionally defective
because one of the reasons the legislators voted for it
was to punish those who opposed them during an
election campaign.” 

Id. at 775

. We went further stating,
“[i]ndeed one might think that this is what election cam-
paigns are all about: candidates run a certain platform,
political promises made in the campaign are kept (some-
times), and the winners get to write the laws.” 

Id.

Nos. 12-1854, 12-2011 & 12-2058                           31

These sorts of decisions are left for the next election.
Accordingly, we must resist the temptation to search
for the legislature’s motivation for the Act’s classifica-
tions. We now turn to the three challenged provisions.


    1.   Collective Bargaining Limitations
  Wisconsin is correct that the collective bargaining
limitations constitutionally promote flexibility in state
and local government budgets by providing public em-
ployers more leverage in negotiations. This alone,
however, is not enough to save the provision because
the differential treatment of public safety and general
employee unions must also be rational. On this point,
the district court upheld the classifications because Wis-
consin could rationally believe that Act 10’s passage
would result in widespread labor unrest, but also
conclude that the state could not withstand that unrest
with respect to public safety employees.
  We agree that Wisconsin reasonably concluded that
the public safety employees filled too critical a role to
risk such a stoppage. Not only has the Supreme Court
previously held labor peace in certain instances is a
legitimate state interest, the Court found the interest
weighty enough to justify some impingement on the
free speech rights of employees who do not belong to a
union. See Ellis v. Bhd. of Ry. Clerks, 

466 U.S. 435, 455-56

(1984); see also Knox v. Serv. Emps. Int’l Union, Local 1000,

132 S. Ct. 2277, 2290

 (2012) (describing “labor peace” as
justification for public sector fair-share agreements). And
experience has borne out the state’s fears: in the wake of
Act 10’s proposal and passage, thousands descended on
32                         Nos. 12-1854, 12-2011 & 12-2058

the state capital in protest and numerous teachers orga-
nized a sick-out through their unions, forcing schools to
close, while the state avoided the large societal cost of
immediate labor unrest among public safety employees.
Wisconsin was free to determine that the costs of
potential labor unrest exceeded the benefits of restricting
the public safety unions.
  This conclusion is uncontroversial: other courts
have upheld distinctions between employee groups
with similar classifications. See, e.g., Am. Fed’n of Gov’t
Emps. v. Loy, 

281 F. Supp. 2d 59, 65-66

 (D.D.C. 2003)
(constitutional to prohibit TSA airport screeners from
collectively bargaining but permit other TSA employees
to do so), aff’d, 

367 F.3d 932

 (D.C. Cir. 2004); Margiotta v.
Kaye, 

283 F. Supp. 2d 857, 864-65

 (E.D.N.Y. 2003) (con-
stitutional to eliminate compulsory arbitration for
court security officers but not other police officers).
Indeed, when pressed at oral argument, the Unions’
counsel acknowledged that the state could draw rational
distinctions between public safety and general em-
ployees for this purpose. However, the Unions contend
the way in which Wisconsin separated the two groups
negates the legitimacy of the classifications. Fundamen-
tally, they argue Wisconsin should have either classified
motor vehicle inspectors as general employees or
placed prison guards, the University of Wisconsin
Police, and the Capitol Police in the public safety group.
  The Supreme Court has continually rejected this sort
of argument, stating “[d]efining the class of persons
subject to a regulatory requirement . . . requires that some
persons who have an almost equally strong claim to
Nos. 12-1854, 12-2011 & 12-2058                            33

favored treatment be placed on different sides of the
line . . . [and this] is a matter for legislative, rather than
judicial, consideration.” FCC v. Beach Commc’ns, Inc., 

508 U.S. 307, 315-16

 (1993) (internal quotations). Thus, in
Village of Belle Terre v. Boraas, the Court upheld a
zoning regulation that permitted two unrelated people to
live together but prohibited three or more of them from
doing so because such arrangements are more likely to
constitute boarding or fraternity houses that nuisance
neighbors. 

416 U.S. 1, 2, 9

 (1974). In doing so, the Court
implicitly acknowledged that many of the forbidden
households would not cause nuisances and were indis-
tinguishable from permitted arrangements, but the Court
refused to invalidate the ordinance because “every line
drawn by a legislature leaves some out that might well
have been included.” 

Id. at 8

. Similarly, in Vance v. Bradley,
the Court upheld a statute that required individuals in
the Foreign Service system to retire at age sixty but per-
mitted employees covered by the Civil Service to retire
at age seventy. 

440 U.S. 93, 96

 (1979). The government
justified the legislation on the need for a more rapid
system of promotions and turnover in the Foreign Service
system because youth was more important for the rigors
of overseas service. 

Id. at 98-99, 106

. The Court acknowl-
edged the law was simultaneously overinclusive and
underinclusive because the stated goals applied to
many Civil Service jobs and did not apply to certain
Foreign Service positions. For instance, only sixty
percent of Foreign Service officers served overseas, while
five percent of Civil Service officers did. 

Id. at 107

. Never-
theless, the statute easily withstood rational basis
34                           Nos. 12-1854, 12-2011 & 12-2058

review because “perfection is by no means required”
and the “provision does not offend the Constitution
simply because the classification is not made with mathe-
matical nicety.” 

Id. at 108

 (internal quotations).
  Thus, we cannot, as the Unions request, determine
precisely which occupations would jeopardize public
safety with a strike. Even if we accept that Wisconsin
imprudently characterized motor vehicle inspectors as
public safety employees or the Capitol Police as general
employees, invalidating the legislation on that ground
would elevate the judiciary to the impermissible role
of supra-legislature. The judiciary’s refusal to take on
this role explains why, applying rational basis review
in City of New Orleans v. Dukes, the Supreme Court hy-
pothesized reasons for upholding the preferential treat-
ment of pushcart vendors that worked for longer than
eight years even without a showing that they were
more qualified than newer vendors. 

427 U.S. 297, 298, 305

(1976) (per curiam). Further, it explains why the Court,
in Lee Optical, upheld a law allowing only ophthalmo-
logists and optometrists to install prescription eye
lenses, even though opticians possessed similar skills. 

348 U.S. at 486, 490-91

. Distinguishing between public safety
unions and general employee unions may have been
a poor choice, but it is not unconstitutional. 1 1


11
  Moreover, at least with respect to the prison guards, there is
an additional possible explanation for their exclusion from
the public safety category. The trust fund statute, which Act 10
                                                   (continued...)
Nos. 12-1854, 12-2011 & 12-2058                             35

     2. Recertification Requirements
  Many of the justifications for the collective bargaining
limitation also apply to the recertification requirement.
As we mentioned, Act 10 exhibits a rational belief that
public sector unions are too costly for the state. The
recertification process furthers this interest by imposing
a recertification burden that impacts unions’ influence
over employees who are less passionate about union
representation. The Unions characterize this voting rule
as arcane, but the alternative to Act 10 would appear to
be the outright elimination of all general employee
unions. Instead, the legislature enacted a law which
presumes that when many employees abstain from a
recertification election, those employees are, at best,
unenthusiastic about the union’s representation. In
such cases, it is permissible for Wisconsin to rationally



11
   (...continued)
cross-references, also excludes them. Thus, it would be under-
standable if the Wisconsin legislature used that list as a
starting point to choose those professions from which it
feared a retaliatory strike. Even if we agree with the Unions
that Act 10 should have placed prison guards in the public
safety category, “a legislature need not run the risk of losing
an entire remedial scheme simply because it failed, through
inadvertence or otherwise, to cover every evil that might
conceivably have been attacked.” McDonald v. Bd. of Election
Comm’rs, 

394 U.S. 802, 809

 (1969). In fact, the Court in Beach
Communications similarly suggested the disputed FCC distinc-
tion survived rational basis because the Commission adopted
it from an existing regulatory scheme. 

508 U.S. at 317-18

.
36                           Nos. 12-1854, 12-2011 & 12-2058

conclude that the union is not worth maintaining
through an automatic recertification process—or, at least,
Wisconsin does not want to incur the cost of unions
which have uncommitted members.
  Because the state clearly has an interest in the
recertification requirement, the rational basis for
applying it only to general employees flows from the
justification for differentially applying the collective
bargaining limits. The provision may tend to weaken
unions, and Wisconsin rationally feared back-
lash—either immediate or eventual (in the event a public
safety union later failed to garner recertification sup-
port)—if it applied the provision to the public safety
unions. The Unions raise the same sorts of arguments
against this provision that they did against the collective
bargaining provision—that it was irrational to include
the motor vehicle inspectors but exclude safety-related
unions like the Capitol Police. For the reasons in the
previous section, these arguments are unavailing.


     3.   Payroll Deduction Prohibition
  As we explained in Part II.A., because the payroll
deduction prohibition does not implicate the First Amend-
ment, we analyze this provision under rational basis
review.12 Wisconsin could have rationally eliminated all



12
  The district court engaged in two separate rational basis
analyses, one under the Equal Protection Clause and another
                                               (continued...)
Nos. 12-1854, 12-2011 & 12-2058                               37

payroll deductions. Ysursa, 

555 U.S. at 359

 (noting that “the
State is not constitutionally obligated to provide payroll
deductions at all”). And, as was the case with the
other provisions, Wisconsin’s differential treatment of
general and public safety unions is supported by its
concern for labor peace among the public safety em-
ployees. The Unions again rely on the alleged “gerryman-
dering” of the public safety employee definition to chal-
lenge the State’s justifications for Act 10. But these ar-
guments fail for the same reasons stated above—such
line-drawing is not for the courts.
  The Unions also label as “wholly implausible” the
legislature’s fear that a payroll prohibition on public
safety employees would trigger an illegal strike. But
rational basis review does not require the state to
“produce evidence to sustain the rationality” of the law,
provided the law has “some footing in the realities of the
subject addressed by the legislation.” Heller, 

509 U.S. at 320-21

. The state’s fear is rational, particularly considering
the controversy surrounding passage of Act 10 and the
Unions’ own admission before the district court that the



12
  (...continued)
under the First Amendment. Rational basis review, however,
is not a level of scrutiny under the First Amendment but
merely the residual level of scrutiny that courts apply to all
laws not involving a suspect class or infringing a funda-
mental right. See Ezell v. City of Chi., 

651 F.3d 684, 701

(7th Cir. 2011). Thus, only one rational basis analysis is neces-
sary.
38                         Nos. 12-1854, 12-2011 & 12-2058

effect of the payroll prohibition would be “catastrophic.”
Consequently, the payroll dues prohibition survives
rational basis review.


     C. The District Court Did Not Err in Denying Pro-
        posed Intervenors’ Motion to Intervene
  The Employees filed a motion to intervene as of right
in support of the state.1 3 See Fed. R. Civ. P. 24(a)(2). A
party has a right to intervene when: (1) the motion to
intervene is timely filed; (2) the proposed intervenors
possess an interest related to the subject matter of the
action; (3) disposition of the action threatens to impair
that interest; and (4) the named parties inadequately
represent that interest. Ligas ex rel. Foster v. Maram, 

478 F.3d 771, 773

 (7th Cir. 2007). The Unions oppose interven-
tion and challenge only two of these elements: the relation-
ship between the Employees’ interest and the sub-
ject-matter of the suit, and the adequacy of the state in
representing the Employees’ interests. This Court applies
de novo review to the district court’s determination on
these two elements, 

id.,

 neither of which the Employees
satisfy.




13
  The Employees also sought permissive intervention. The
district court did not specifically address that argument,
though, and the Employees have not raised permissive inter-
vention on appeal.
Nos. 12-1854, 12-2011 & 12-2058                           39

    1.   Direct and Substantial Interest
  Intervention as of right requires a “direct, significant[,]
and legally protectable” interest in the question at issue in
the lawsuit. Keith v. Daley, 

764 F.2d 1265, 1268

 (7th Cir.
1985). That interest must be unique to the proposed
intervenor. 

Id.

 Moreover, the question of “[w]hether an
applicant has an interest sufficient to warrant interven-
tion as a matter of right is a highly fact-specific deter-
mination, making comparison to other cases of limited
value.” Sec. Ins. Co. of Hartford v. Schipporeit, Inc., 

69 F.3d 1377, 1381

 (7th Cir. 1995).
  The Employees assert they have a First Amend-
ment interest in not paying compulsory union fees and
in rejecting the union as their state-imposed bargaining
agent. However, the Employees largely acknowledge
that Abood v. Detroit Board of Education and its progeny
settle this question. 

431 U.S. 209

 (1977). There, the Court
held that a public sector union could recover expenses
related to collective bargaining from nonmembers even
though they could not force nonmembers to fund political
or ideological union projects. 

Id. at 234

. Although this
payment “significant[ly] impinge[s] on First Amendment
rights” of nonmember employees, the governmental
interest in “industrial peace” justifies this intrusion on
free speech. Ellis, 

466 U.S. at 455-56

; see also Knox, 

132 S. Ct. at 2290

 (describing “labor peace” as justification for
public sector fair-share agreements). Thus, under Abood
and Ellis, the state could properly compel the Employees
to pay union charges under fair-share agreements, pre-
cisely as it did before passage of Act 10.
40                         Nos. 12-1854, 12-2011 & 12-2058

   The Employees do not dispute any of this, nor do
they assert any constitutional right allowing them to
escape payment of the union expenses that Abood and
its progeny have allowed. Instead, they argue that Act 10
“changes the constitutional calculus” underlying this
First Amendment analysis. According to the Employees,
when the state passed Act 10, it abolished “industrial
peace” as a compelling interest that justified the First
Amendment concerns of dissenting employees subject
to fair-share agreements. This new constitutional
calculus, they continue, “opens the door for Employees to
directly assert and protect their nascent First Amendment
claims” because “[t]here no longer are any sufficiently
weighty state interests to justify compromising the
First Amendment interests recognized in cases such as
Abood.” Even if that were true, the Employees’ First
Amendment interests have little to do with the claims
raised by the Unions, which focus on the Unions’ free
speech rights. The question of the Employees’ free speech
rights is, as the district court explained, tangential.


     2. Adequacy of Representation
  Even assuming a direct interest in the litigation, the
state adequately represents the interests of the Employees.
The district court applied a deferential standard re-
quiring gross negligence or bad faith to render the state’s
representation inadequate. However, that standard
applies only “when the representative party is a gov-
ernmental body charged by law with protecting the
interests of the proposed intervenors [because] the repre-
sentative is presumed to adequately represent their
Nos. 12-1854, 12-2011 & 12-2058                               41

interests unless there is a showing of gross negligence
or bad faith.” See Ligas, 

478 F.3d at 774

. The state is not
charged by law with protecting the interests of the Em-
ployees so this standard does not apply. Nevertheless,
the state still adequately represented the Employees’
interests.
   Although intervention requires only a “minimal” show-
ing of inadequate representation, see Trbovich v. United
Mine Workers of Am., 

404 U.S. 528

, 538 n.10 (1972), when
the prospective intervenor and the named party have
the same goal, a “presumption [exists] that the repre-
sentation in the suit is adequate,” Shea v. Angulo, 

19 F.3d 343, 347

 (7th Cir. 1994). The prospective intervenor
then must rebut that presumption and show that some
conflict exists. Meridian Homes Corp. v. Nicholas W.
Prassas & Co., 

683 F.2d 201, 205

 (7th Cir. 1982). Here, the
Employees and the state share the same goal: protecting
Act 10 against the Unions’ constitutional challenge. The
Employees have admitted as much, declaring that “[i]f
Act 10 is declared valid, [the] Employees’ First Amend-
ment rights are completely vindicated.” Thus, by their
own admission, the Employees have exactly the same
goal as the state. Yet they identify no conflict rendering
the state’s representation inadequate. Instead, Em-
ployees rely largely on post-hoc quibbles with the state’s
litigation strategy. This does not provide the conflict
of interest necessary to render the state’s representa-
tion inadequate.14



14
     Nor does the Employees’ long list of cases illustrating that
                                                   (continued...)
42                           Nos. 12-1854, 12-2011 & 12-2058

  In summation, the district court properly denied the
Employees’ motion to intervene as of right. They did not
articulate a direct, substantial, and legally cognizable
interest in the litigation, nor was the state an inadequate
representative of their interests. Thus, the district court
below, and this Court on appeal, does not need to
consider their arguments.


                       III. Conclusion
  For the foregoing reasons, we A FFIRM the district
court’s ruling that the collective bargaining provisions
satisfy rational basis, R EVERSE the district court’s
rulings that the recertification provisions and payroll
deduction provisions do not satisfy rational basis,
and A FFIRM the district court’s denial of proposed
intervenors’ motion to intervene.




14
   (...continued)
such intervention happens “frequently” in this Circuit. None
of these cases directly addresses the propriety of the interven-
tion in those cases. Instead, each merely recognizes in passing
that the intervention occurred at some prior point in the
procedural history of the case.
Nos. 12-1854, 12-2011 & 12-2058                        43

  H AMILTON, Circuit Judge, concurring in the judgment
in part and dissenting in part. Elections have conse-
quences, as this case reminds us. Although the rationales
offered for the State’s different treatment of collective
bargaining for “public safety” employees and “general”
employees seem flimsy to me, the highly deferential
rational-basis review requires that we uphold the
principal provisions of Wisconsin’s Act 10 against equal
protection challenges. This is particularly true where
the federal Constitution would not prevent the State
from removing all collective bargaining rights of public
employees. I therefore join the portion of the judgment
upholding the new statutory limits on the subject
matters of collective bargaining for the general em-
ployees. For essentially the same reasons, I also concur
in the portion of the judgment upholding the unprece-
dented recertification provisions for unions representing
“general” employees, although the reasons for those pro-
visions were not presented to the district court. For
the reasons explained in Part II-C of the majority’s
opinion, I also concur with the affirmance of the district
court’s denial of the motion to intervene.
  I respectfully dissent, however, from the portion of
the court’s decision upholding Wisconsin’s selective
prohibition on payroll deductions for dues for some
public employee unions but not others. The district court
correctly held that the new law’s selective prohibition
on payroll deductions violates the First Amendment
rights of the plaintiff unions and their members. It is
well established that a government employer creates
what First Amendment doctrine calls a “nonpublic
44                        Nos. 12-1854, 12-2011 & 12-2058

forum” when it establishes a system for employee
payroll deductions for payment to various third parties,
including labor unions. It is equally well established
under the First Amendment that the public employer
may not engage in political or viewpoint discrimination
when choosing which payroll deductions are allowed.
After close examination of the relevant evidence, the
district court correctly found that Wisconsin’s new law
amounts to unconstitutional viewpoint discrimination.
The majority attempts to avoid this result by portraying
the new law as merely denying plaintiffs a “subsidy” for
speech. As explained below, that approach fails to come
to grips with the applicable First Amendment doctrine
and precedents, as well as the evidence showing view-
point discrimination in the new and selective prohibition.
  Part I-A of this opinion summarizes the established
First Amendment framework for nonpublic forum
analysis and its application to the union dues withholding
provisions. Part I-B addresses the requirement of view-
point neutrality and shows that we cannot end our
analysis when we find merely facial neutrality. Part I-C
then reviews the evidence showing that the selective
limits on payroll deductions here violate the First Amend-
ment. Finally, Part II explains my reasons for concurring
in the judgment upholding the annual recertification
provisions.
Nos. 12-1854, 12-2011 & 12-2058                         45

I. The Discriminatory Limits on Payroll Deductions of
  Union Dues


  A. Payroll Deductions as a “Nonpublic Forum”
  On the payroll deduction issue, let’s start with the
common ground. My colleagues and I agree, as all the
parties in the case do, that the federal Constitution
does not require the State to “subsidize” the plaintiff
unions by continuing to provide payroll deductions for
union dues. The majority’s emphasis on this uncontrover-
sial point misses the real point of the plaintiffs’ First
Amendment claim. See ante at 9-15. Wisconsin
has chosen to create such a system of payroll deduc-
tions. The new law keeps that system in place for “public
safety” employees and their unions but denies access to
that same system for all other public employees and
their unions. It’s that discrimination that causes the
problem here.
  The most relevant corner of First Amendment doctrine
here is the law applicable to a “nonpublic forum.” When
a government is not required to open its property for
expressive or communicative purposes, but chooses to
do so for limited purposes, it has created a nonpublic
forum. The general First Amendment standards for a
nonpublic forum are settled: “Control over access to
a nonpublic forum can be based on subject matter and
speaker identity so long as the distinctions drawn are
reasonable in light of the purpose served by the forum
and are viewpoint neutral.” Cornelius v. NAACP Legal
Defense & Educ. Fund, 

473 U.S. 788, 806

 (1985), quoted
46                         Nos. 12-1854, 12-2011 & 12-2058

in Lamb’s Chapel v. Center Moriches Union Free School
Dist., 

508 U.S. 384, 392-93

 (1993).
   As the term suggests, the nonpublic forum may be a
literal forum, such as a place where the government
provides shelter, heat, light, and security, such as
meeting space in a public school in Lamb’s Chapel. See
also, e.g., Grossbaum v. Indianapolis-Marion County Bldg.
Auth., 

63 F.3d 581

, 586 (7th Cir. 1995) (public building
lobby was nonpublic forum for holiday seasonal dis-
plays). First Amendment precedents also make clear,
though, that a nonpublic forum may be less literal, such
as a charitable campaign where the government pro-
vides an audience and subsidizes both communications
and even payroll deductions. In fact, Lamb’s Chapel, which
involved a literal forum, followed Cornelius. That case
held that the Combined Federal Campaign, which solicits
charitable donations from federal employees through
payroll deductions, is a nonpublic forum. 

473 U.S. at 805

-
06. Accord, e.g., Davenport v. Washington Educ. Ass’n, 

551 U.S. 177, 188-89

 (2007) (applying nonpublic forum re-
quirements of viewpoint neutrality and reasonableness
to public employee union dues withholding system);
Pilsen Neighbors Community Council v. Netsch, 

960 F.2d 676, 685-86

 (7th Cir. 1992) (state program for charitable
gifts by payroll deduction was a nonpublic forum). See
also Rosenberger v. Rector and Visitors of Univ. of Virginia,

515 U.S. 819, 830

 (1995) (state university’s fund for
student organizations was nonpublic forum); Choose Life
Illinois Inc. v. White, 

547 F.3d 853, 865

 (7th Cir. 2008)
(specialty license plates were nonpublic forum); Christian
Legal Society v. Walker, 

453 F.3d 853, 865-66

 (7th Cir. 2006)
Nos. 12-1854, 12-2011 & 12-2058                           47

(following Rosenberger, applying nonpublic forum analysis
to state university fund for student organization).
   The majority opinion proceeds as if there were an
important difference between the “nonpublic forum”
cases, such as Cornelius, Davenport, and Rosenberger, on
one hand, and the “subsidy” line of cases. See ante at
9-15, citing Regan v. Taxation with Representation of Wash-
ington, 

461 U.S. 540

 (1983) (“subsidy” case); Ysursa v.
Pocatello Educ. Ass’n, 

555 U.S. 353

 (2009) (another “subsidy”
case); and Rosenberger (a “nonpublic forum” case). There
is no important difference. What is a nonpublic forum
if not a subsidy? The government is not required to
provide any subsidy. Nor is it required to provide the
forum, but if it does, there is likely to be some form of
at least indirect subsidy, whether in the form of light
and heat for a literal forum or modest administrative
costs for payroll deductions. Regardless of the preferred
label, the essential requirements are the same: a gen-
erous standard of reasonableness but a prohibition on
viewpoint discrimination, as the majority itself acknowl-
edges. Ante at 15.


  B. Nonpublic Forums Require Genuine Viewpoint Neutrality
  So we have a nonpublic forum, which means that the
State’s selective limits on payroll dues deductions
must satisfy the First Amendment requirements for a
nonpublic forum, including viewpoint neutrality. As
Cornelius, Lamb’s Chapel, Rosenberger, and many other
cases show, “[s]peech restrictions in a nonpublic forum
48                         Nos. 12-1854, 12-2011 & 12-2058

must not discriminate on the basis of viewpoint.” Christian
Legal Society v. Walker, 

453 F.3d 853, 865

 (7th Cir. 2006).
  The requirement of viewpoint neutrality in handling
public employees’ payroll deductions for union dues
should not be controversial. Suppose, for example, that a
state set up a system allowing payroll deductions
for employees’ political contributions to the state Demo-
cratic Party but not to any other party. We can all agree
that such a system would violate the First Amendment.
And that would be true even though the state might
argue that it was not required to “subsidize” the Republi-
can Party or others. A step closer to this case, suppose a
state set up a system allowing payroll deductions of
dues for unions that supported the Democratic Party
but not for unions with a different political bent. Just as
surely that system would also violate the First Amend-
ment, again despite the fact that the state would not be
required to provide such a subsidy or service for any
unions.
  Thus, whether the State is understood to be providing
benefits or subsidizing speech, the First Amendment
governs the State’s decisions that limit access to nonpublic
forums and prohibits granting or denying access based
on the differing viewpoints of particular groups. “These
principles provide the framework forbidding the State
to exercise viewpoint discrimination, even when the
limited public forum is one of its own creation.” Rosen-
berger, 

515 U.S. at 829

 (“Once it has opened a limited
forum, however, the State must respect the lawful bound-
aries it has itself set.”); see also Elena Kagan, The
Nos. 12-1854, 12-2011 & 12-2058                           49

Changing Face of First Amendment Neutrality: R.A.V. v. St.
Paul, Rust v. Sullivan and the Problem of Content-Based
Underinclusion, 

1992 Sup. Ct. Rev. 29

, 43 (1996) (“The
government may not use its broad discretion over the
property it owns to advantage some viewpoints at
the expense of others . . . .”).1
  As the majority points out, on its face, Wisconsin’s Act 10
seems viewpoint-neutral: public safety unions can have
dues withheld from paychecks, while other public em-
ployee unions cannot. Facial neutrality, however, is not
the end of the matter. The real question here is whether
the new law violates — in fact — the well-established
requirement of viewpoint neutrality. “Distinguishing
between a permissible content-based restriction and
an impermissible viewpoint-based restriction is not
always easy.” Choose Life Illinois, Inc. v. White, 

547 F.3d 853, 865

 (7th Cir. 2008).
  The Supreme Court has made clear that consideration
of viewpoint neutrality or bias does not end with a super-
ficial look at the face of the state’s policy. In Cornelius,
for example, the federal government argued that its
exclusion of advocacy groups from the Combined
Federal Campaign charity drive was a viewpoint-
neutral rule designed to avoid disruption of federal
workplaces and ensure the success of the campaign. The


1
  The Supreme Court used the term “limited” public forum
in Rosenberger to describe what is more commonly called a
“nonpublic” forum, as shown in Rosenberger’s discussion
of Cornelius and Lamb’s Chapel. See 

515 U.S. at 829

.
50                          Nos. 12-1854, 12-2011 & 12-2058

Supreme Court described those as “facially neutral and
valid justifications” for the rule, 

473 U.S. at 812

, but that
was not the end of the case. The Court also noted that
other evidence cast doubt on the genuineness of the
stated concerns, such as the inclusion of other groups in
the campaign that did not seem to fit the stated criteria.
There was no requirement that rules limiting access to
a nonpublic forum be “precisely tailored,” but evidence
of a lack of fit between the stated rules and the actual
practice gave the Court enough pause to order a remand
to pursue the issue of viewpoint neutrality or bias:
“While we accept the validity and reasonableness of
the justifications offered by petitioner for excluding
advocacy groups from the CFC, those justifications
cannot save an exclusion that is in fact based on the
desire to suppress a particular point of view.” 

Id. at 812-13

,
citing Schaumburg v. Citizens for a Better Environment,

444 U.S. 620, 634

 (1980).
  Despite the majority’s disclaimer in its footnote 7, this
passage in Cornelius not only encourages but actually
directs lower courts to consider claims that an invidious,
viewpoint-biased motive lies behind a facially neutral
restriction on access to a nonpublic forum. See also
Southworth v. Board of Regents of Univ. of Wisconsin System,

307 F.3d 566, 594

 (7th Cir. 2002) (finding that facially
neutral classifications actually favored non-political
organizations thereby resulting in viewpoint discrimina-
tion); Pilsen Neighbors Community Council v. Netsch, 

960 F.2d at 686-88

 (finding no First Amendment violation
with Illinois’s system for charitable payroll deductions
where criteria were viewpoint-neutral both facially and
as applied).
Nos. 12-1854, 12-2011 & 12-2058                          51

  This requirement of genuine viewpoint neutrality, both
facially and as applied, is entirely consistent with the
Supreme Court’s decision in Ysursa v. Pocatello Education
Ass’n, 

555 U.S. 353

 (2009), upon which the majority relies
so heavily. The issue the Supreme Court faced in Ysursa
was whether the state of Idaho could prohibit local gov-
ernments from taking payroll deductions for any
political activities, defined broadly enough to include
contributions to unions’ political action committees. The
Court upheld the state law, reasoning primarily that the
prohibition was evenhanded and served the state’s legiti-
mate purpose of avoiding the reality or appearance
of government favoritism or entanglement with partisan
politics. 

555 U.S. at 360

.
  Separate opinions by Justices Stevens, Souter, and
Breyer questioned whether the prohibition was in fact
evenhanded and viewpoint-neutral. The Court addressed
their concern in a lengthy footnote. First, the Court ex-
plained that the plaintiffs had not tried to establish view-
point discrimination in the lower courts. The Court then,
in a comment directly applicable to this case, added that
if the prohibition were not enforced evenhandedly in
the future, “plaintiffs are free to bring an as-applied
challenge.” 

Id.

 at 361 n.3, citing National Endowment for
the Arts v. Finley, 

524 U.S. 569, 587

 (1998) (“even in the
provision of subsidies, the Government may not ‘ai[m]
at the suppression of dangerous ideas’ ”), quoting in
turn Regan v. Taxation with Representation of Washington,

461 U.S. at 550

.
  In other words, Ysursa applied First Amendment doc-
trine to uphold a broad ban on payroll deductions for
52                           Nos. 12-1854, 12-2011 & 12-2058

union dues that did not discriminate on the basis of
viewpoint. That much is common ground in this case. But
on the contested issue in this case, the more important
point is that Ysursa reinforced the established law that
viewpoint discrimination in a government’s limits on
access to a payroll deduction system can violate the
First Amendment. 

555 U.S. at 361

 n.3. This remains true
whether one prefers to speak in terms of a subsidy or a
nonpublic forum. Ysursa simply did not decide an issue
like the one we face here, whether Act 10’s facially
neutral but selective limits on access to public payroll
deductions are actually viewpoint-neutral or not.2


    C. The Wisconsin Law and Viewpoint Discrimination
  Following the teaching of Cornelius and the other
cases discussed above, I turn now to Wisconsin’s Act 10
and the actual effects of the restrictions on access to
payroll deductions, taking the unions’ evidence and the



2
  Toledo Area AFL-CIO Council v. Pizza, a case cited by the
majority as a “subsidy” case, recognized this important differ-
ence. In upholding a ban on wage checkoffs, the Sixth
Circuit said it was “significant” that the prohibition was
universal in its application: “The provision does not single
out political contributions to only certain parties, candidates
or issues. All Ohio public employees are denied the benefits
that might be derived from such publicly-administered pro-
grams, regardless of the content of their political views or
their party affiliation.” 

154 F.3d 307, 319

 (6th Cir. 1998). The
same cannot be said in this case.
Nos. 12-1854, 12-2011 & 12-2058                              53

State’s explanations in turn. Despite the superficial, facial
neutrality as to viewpoint, the plaintiffs offered persua-
sive evidence that the different treatment of “public
safety” unions and “general employee” unions is in
reality an unconstitutional exercise in viewpoint dis-
crimination. The majority asks the right question but
then averts its eyes from the evidence needed to answer
it, saying that plaintiffs’ arguments “require peering
past the text of the statute to infer some invidious legisla-
tive intention. We decline this invitation.” Ante at 19-20.
  “Peering past the text” is exactly what we are
supposed to do here. “The existence of reasonable
grounds for limiting access to a nonpublic forum, how-
ever, will not save a regulation that is in reality a facade
for viewpoint-based discrimination.” Cornelius, 

473 U.S. at 811

. That’s what the Supreme Court taught in
Cornelius, as well as Ysursa, and Lamb’s Chapel. Let’s turn
to that evidence.3


3
   To defend its decision not to inquire into the possibility of
viewpoint discrimination beyond the face of the statute, the
majority relies on inapposite “time, place, and manner” cases,
observing that disparate impact on one viewpoint does not
“transform a facially neutral statute into a discriminatory
one.” Ante at 20-21, citing Hill v. Colorado, 

530 U.S. 703

(2000), and Madsen v. Women’s Health Center, Inc., 

512 U.S. 753

(1994). The “time, place, and manner” doctrine does not justify
a refusal to consider genuine evidence of viewpoint bias in
access to a nonpublic forum. Time, place, and manner restric-
tions must be content neutral and narrowly tailored to serve
                                                  (continued...)
54                           Nos. 12-1854, 12-2011 & 12-2058

     1. Plaintiffs’ Evidence of Viewpoint Discrimination
   Consistent with the Supreme Court’s teachings, the
plaintiffs rely on three points that together show the
State’s proffered rationale is a pretext for viewpoint
(here, political) discrimination. The first is the close
correlation between various unions’ political endorse-
ments in the 2010 Wisconsin governor’s race and their
ability to continue payroll deductions. The second is the
flimsiness of the State’s proffered rationales for drawing
the line as it did between public safety and general em-
ployees and for barring payroll deductions of union
dues for all but public safety employees. The third is



3
  (...continued)
a significant government interest, and must leave ample
alternative channels of communication. Ward v. Rock Against
Racism, 

491 U.S. 781, 791

 (1989). In effect, such laws restrict
particular conduct, as in Hill, which regulated speech within
eight feet of another person without that person’s consent.

530 U.S. at 707

. This is not the case in which to explore all the
First Amendment doctrinal nuances, but these other require-
ments make viewpoint discrimination more difficult to
achieve with time, place, and manner restrictions. The Supreme
Court itself has distinguished the two lines of doctrine. See
Madsen, 

512 U.S. at 763-64

 (“the injunction issued in this case
does not demand the level of heightened scrutiny set forth in
Perry Ed. Ass’n, 

460 U.S. at 45

,” which was a nonpublic forum
case). We should follow the nonpublic forum cases and
consider the evidence showing that a facially neutral statute
in fact is being used to limit access to an important nonpublic
forum based on political viewpoint.
Nos. 12-1854, 12-2011 & 12-2058                         55

the overtly partisan political explanation for the Act
that was offered in the legislative debate.


     a. Political Endorsements of the Affected Unions
  Five unions representing public sector employees
endorsed then-candidate Walker for governor during the
2010 campaign: the Wisconsin Troopers Association,
whose members are state troopers and motor vehicle
inspectors; the Milwaukee Police Association; the Mil-
waukee Professional Fire Fighters Association; the West
Allis Professional Police Association; and the Wisconsin
Sheriffs and Deputy Sheriffs Association Political Action
Committee. The members of all five organizations are
included in the new law’s “public safety” classification.
They all retained their full collective bargaining rights,
including payroll deductions for union dues and fair
share payments.
   The net effect is that all public employees represented
by unions that endorsed Governor Walker continue to
enjoy collective bargaining, and those unions continue
to benefit from payroll deductions. On the other hand,
nearly all members of the public employee unions that
did not endorse Governor Walker are categorized as
“general” employees. Their bargaining rights have been
reduced to a hollow shell and payroll deductions are
not available for their union dues. The correlation is
admittedly not perfect — some other local police and
fire unions did not endorse Governor Walker but are
“public safety” employees — but it’s very strong. As the
district court noted, the “fact that none of the public
56                         Nos. 12-1854, 12-2011 & 12-2058

employer unions falling into the general category
endorsed Walker in the 2010 election and that all of the
unions that endorsed Walker fall within the public safety
category certainly suggests that unions representing
general employees have different viewpoints than those
of the unions representing public safety employees.”
Wisconsin Educ. Ass’n Council v. Walker, 

824 F. Supp. 2d 856, 873

 (W.D. Wis. 2012).


      b. The State’s Explanations
  Of course, the correlation between political allegiance
to the governor and continued access to payroll
deductions could be just a coincidence, a result of a
reasonable policy decision to treat public safety em-
ployees differently than other public employees. Legisla-
tion is not unconstitutional just because it favors political
supporters or harms opponents. See Hearne v. Board of
Educ. of City of Chicago, 

185 F.3d 770, 775

 (7th Cir. 1999).
  The State argues that public safety employees were
treated more generously because they were in a position
to strike (albeit illegally) and thereby to undermine
public safety.
  A closer look undermines that explanation. The state
employs many police officers, firefighters, and others
with important public safety responsibilities who are
excluded from the “public safety” classification of
Act 10. If the State’s proffered explanation for treating
“public safety” employees differently were actually true,
it would be hard to understand why that explanation
Nos. 12-1854, 12-2011 & 12-2058                        57

would not apply as well to police officers at the
University of Wisconsin, Capitol Police officers, the
State’s thousands of correctional and probation officers,
and many others with important public safety duties.
Instead, those employees, whose unions did not endorse
Governor Walker, are treated as general employees, and
their unions do not benefit from payroll deductions.
  As the district court explained, one particular gerry-
mander of the legislative classifications illustrates the
problem well. The Wisconsin Law Enforcement Associa-
tion (WLEA) has been the collective bargaining repre-
sentative for state troopers, other employees of the Wis-
consin State Patrol, and many other law enforcement
personnel who work for the state, including the Capitol
Police and the University of Wisconsin Campus Police.
Within the WLEA, only the Wisconsin Troopers Associa-
tion (WTA), which is the lobbying group for employees
of the Wisconsin State Patrol, endorsed Governor
Walker in the 2010 campaign. The WTA includes both
state troopers and state motor vehicle inspectors. The new
law was drawn up to treat all WTA members — motor
vehicle inspectors as well as state troopers — as favored
“public safety” employees. But the law treats all other
groups within the WLEA, and recall that it is the
Wisconsin Law Enforcement Association, including
the Capitol and University of Wisconsin Police, as only
“general” employees.
  Perhaps a strike by motor vehicle inspectors might
threaten the breakdown of public order and state gov-
ernment, but it’s hard to see how. It’s especially hard to
58                         Nos. 12-1854, 12-2011 & 12-2058

see how the threat of a strike by motor vehicle
inspectors could reasonably be deemed more significant
than a strike by, say, correctional officers or many other
law enforcement officers excluded by the new law. The
district court recognized this as well, noting that in the
context of the dues withholding provision and annual
recertification requirements, “the relationship between
the interest of avoiding strikes and these other
challenged provisions is substantially more tenuous.”
Wisconsin Educ. Ass’n Council v. Walker, 

824 F. Supp. 2d at 868

. In the context of employment discrimination
law, such an implausible explanation is treated as a
pretext, which allows a reasonable inference of unlawful
discrimination. E.g., Reeves v. Sanderson Plumbing Products,
Inc., 

530 U.S. 133

 (2000). That’s what we have here, too.
  The State’s and majority’s reasoning is even harder
to understand when we consider the State’s own
analysis governing the classifications. The Deputy Secre-
tary of the Wisconsin Department of Administration
assisted in developing and analyzing Act 10 and ex-
plained the line-drawing process in an affidavit. She was
in part responsible for “planning for contingencies
arising from the enactment of Act 10 including potential
job actions and strikes.” As part of this analysis, she
assessed which departments provided “critical state
services,” the interruption of which would threaten
public safety. The assessment concluded that the De-
partment of Corrections and its staff were crucial.
It further found that even with the National Guard’s
standing plan to replace the Department of Corrections
Nos. 12-1854, 12-2011 & 12-2058                                59

if necessary, “there were insufficient State resources”
to “fulfill the backfill staffing requirements to ensure
the continuation of critical services in the event of a
mass job action.” Supp. App. at 130-32.4 Despite these
findings, the prison guards, who the record shows are
crucial to public safety and have a history of striking,
were classified as “general” employees and not as
“public safety” employees. Their union did not support
Governor Walker in the election.
  The internal analysis also “identified a probable gap
in staffing for state building and staff security in the
event of large scale protests.” Id. at 132. Yet the Capitol
Police were also categorized as “general employees”
deemed not critical to public safety in the event of a
mass action. That mass action did in fact occur on the
steps of the very Capitol that, after the passing of Act 10,
risked being understaffed in the event of a strike in re-
sponse to Act 10.
  I recognize, of course, that when governing access to
a nonpublic forum, the State is not required to draw
these lines perfectly, see Cornelius, 

473 U.S. at 808-09

,
but this internal analysis clearly undermines the
viewpoint-neutral justifications offered by the State. As



4
   To avoid the deposition of the Deputy Secretary, the State
moved to withdraw this affidavit in the district court. Plaintiffs
did not oppose this withdrawal and the district court
therefore granted the request but reserved the right to rely on
it to the extent it was relied upon by plaintiffs. Wisconsin
Educ. Ass’n Council v. Walker, 

824 F. Supp. 2d at 862

.
60                         Nos. 12-1854, 12-2011 & 12-2058

Justice Kagan has written, “the looser the fit between
the interest asserted and the contours of the law, the
greater the cause for suspicion. At a certain point — when
the asserted interest is insubstantial or when it does not
fit the scope of the challenged regulation — the usual
presumption of proper purpose topples; there is reason,
then, to think that the law, though content neutral, has
been tainted by impermissible purpose.” Elena Kagan,
Private Speech, Public Purpose: The Role of Governmental
Motive in First Amendment Doctrine, 

63 U. Chi. L. Rev. 413

,
455 (1996). The State has reached that point with the
selective payroll deduction provisions of Act 10.
  The State also argues more specifically that the
selective prohibition on payroll deductions for union
dues serves the purpose of “favoring employee choice.”
This explanation is so specious that it only adds
further support for the district court’s conclusion that
the State’s explanations are pretexts. Under Act 10,
general employees cannot be required to pay union dues
or fair share payments. Even if payroll deductions
were still available, they would be available only from
those union members who voluntarily chose to pay dues
in that way. Denying those employees the ability to
make voluntary payments through payroll deductions
does not even arguably promote “employee choice”
for those employees.
  By comparison, the State is continuing the practice of
payroll deductions for the favored public safety unions
that supported Governor Walker. Those unions are still
entitled to require payment of union dues or fair share
Nos. 12-1854, 12-2011 & 12-2058                           61

payments from all members of the bargaining unit. The
continued payroll deductions for those unions therefore
include entirely involuntary payments by employees
who are not union members and who object to the pay-
ments and payroll deductions. If “employee choice” were
actually the favored policy, the State’s selective decision
to prohibit voluntary payroll deductions for the benefit
of some unions while still enforcing involuntary
payroll deductions for the favored unions is difficult
to understand.


      c. Legislative Debate
   In the district court the State relied solely on an argu-
ment that the First Amendment simply did not apply to
its decisions about payroll deductions. That defense
was mistaken for reasons already explained. In con-
sidering the payroll deduction provisions, the district
court noted “the only justification in the record for prohib-
iting dues withholding for general employees is limiting
the speech of that class of unions. During the intense
legislative debate on what became Act 10, Senate
Majority Leader Scott Fitzgerald commented that ‘[i]f we
win this battle, and the money is not there under the
auspices of the unions, certainly what you’re going to
find is that President Obama is going to have a . . . much
more difficult time getting elected and winning the state
of Wisconsin.’ ” Wisconsin Educ. Ass’n Council v. Walker,

824 F. Supp. 2d at 875

-76 n.17 (ellipsis in original).
  Helping one side win elections is certainly a rational
reason for the payroll deduction limits, and the limits
62                         Nos. 12-1854, 12-2011 & 12-2058

were designed well to serve that purpose. But under the
First Amendment, of course, it’s not a permissible reason
for restricting access to the nonpublic forum of payroll
deductions. It’s transparent viewpoint discrimination.
So the State and the majority need to sweep the majority
leader’s candid statement under a rug.
  The argument against relying on the majority leader’s
statement is the familiar one about legislative motive
exemplified by United States v. O’Brien, where the
Supreme Court upheld a law making it a federal crime
to burn a draft card: “Inquiries into congressional
motives or purposes are a hazardous matter. . . . What
motivates one legislator to make a speech about a
statute is not necessarily what motivates scores of others
to enact it, and the stakes are sufficiently high for us to
eschew guesswork. We decline to void essentially on
the ground that it is unwise legislation which Congress
had the undoubted power to enact and which could
be reenacted in its exact form if the same or another
legislator made a ‘wiser’ speech about it.” 

391 U.S. 367, 383-84

 (1968).
  As a general rule, the O’Brien point is certainly correct,
and if the majority leader’s speech were the only
evidence of viewpoint discrimination, it would be
difficult to find a First Amendment violation based
solely on that one speech. But neither O’Brien nor many
other Supreme Court decisions require that we wear
blinders to block our view of reality when we examine
a serious claim that the legislature chose to engage in
unconstitutional viewpoint discrimination, especially
Nos. 12-1854, 12-2011 & 12-2058                              63

when that evidence of legislative purpose corroborates
other, more familiar and comfortable forms of evidence.
“In short, the relevance of motive to constitutional adjudi-
cation varies by context. No automatic cause of action
exists whenever allegations of unconstitutional intent
can be made, but courts will investigate motive when
precedent, text, and prudential considerations suggest
it necessary in order to give full effect to the constitu-
tional provision at issue.” Grossbaum v. Indianapolis-
Marion County Bldg. Auth., 

100 F.3d 1287

, 1294 (7th Cir.
1996). “Motive may thus be a vital piece of evidence
that courts must use to judge the viewpoint-neutrality
of the regulation.” Id. at 1298; see also Elena Kagan,
Private Speech, Public Purpose: The Role of Governmental
Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. at
442 (reading O’Brien to stand for “a narrower proposi-
tion, relating not to the propriety of inquiring into
motive, but to the means by which to conduct this in-
quiry”).
   The evidence of unconstitutional legislative purpose
here is similar to evidence of legislative purpose the
Supreme Court has relied upon in other cases, such as
Wallace v. Jaffree, 

472 U.S. 38

 (1985), which struck down
a state law authorizing a daily moment of prayer or
meditation in public schools. The sponsor testified after
the enactment that his purpose was to “return voluntary
prayer to our public schools.” 

Id. at 43

. The sponsor’s
statement was relevant and probative, at least where
it corroborated other evidence indicating an unconstitu-
tional motive. 

Id. at 57

 (Stevens, J.), and 65 (Powell, J., con-
curring). The same is true of evidence of motive in
64                            Nos. 12-1854, 12-2011 & 12-2058

Edwards v. Aguillard, 

482 U.S. 578, 586-87

 (1987) (relying
in part on legislative sponsor’s statements about
purpose to strike down law requiring teaching of
creationism), and Village of Arlington Heights v. Metropolitan
Housing Development Corp., 

429 U.S. 252, 265-66, 268

 (1977)
(considering evidence of legislators’ racial motives as
part of larger set of evidence regarding reasons
for refusal to rezone property to allow multiple-family
housing). Cf. Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 

460 U.S. 37

, 49 n.9 (1983) (finding no viewpoint
discrimination in nonpublic forum, in part, because
“there is no indication in the record that the policy
was motivated by a desire to suppress the PLEA’s
views”). See also John Hart Ely, Legislative & Administra-
tive Motivation in Constitutional Law, 

79 Yale L.J. 1205

,
1279 (1970) (arguing that O’Brien does not eliminate
motive’s “proper role of triggering demands for
legitimate defense which would not otherwise attach”).
The district court did not err by taking into account
the majority leader’s overtly partisan explanation for the
different treatment of the different unions, and that
evidence should not be ignored here.


     2.   The State’s Additional Justifications
  For the first time on appeal, the State has advanced
three additional reasons for the selective prohibition on
payroll deductions for union dues. The State contends
that it no longer has any interest in securing the stability
and continuity of “general employee” unions because
they no longer have meaningful collective bargaining
Nos. 12-1854, 12-2011 & 12-2058                          65

rights. Therefore, the State argues, it cannot justify the
additional expenditure or alleged increased exposure to
liability of withholding dues for “general employees.”
These additional justifications all center on the argu-
ment that, as the State puts it in its reply brief, “public
safety” unions after Act 10 have a “fundamentally
different relationship with the State and municipal em-
ployers than other employee organizations” by dint of
their full collective bargaining rights. State Reply Br. 40.
From this premise, the State argues, it is reasonable for it
to create a nonpublic forum to “assist those employee
organizations whose members have full collective bar-
gaining privileges in the collection of their dues.” State
Reply Br. 33. This argument was waived in the district
court; even on its merits it is merely circular.
  On the waiver point, in the district court, the State’s
only response to plaintiffs’ First Amendment challenge
to the payroll deduction provision was an argument
that the First Amendment simply did not apply. Wisconsin
Educ. Ass’n Council v. Walker, 

824 F. Supp. 2d at 875

(“In defending against plaintiffs’ First Amendment chal-
lenge, defendants exclusively argue that the prohibition
on the withholding of union dues from paychecks of
general employees does not implicate the First Amend-
ment.”). That position was obviously mistaken; my col-
leagues and I agree to that extent, at least. As a result,
the State’s entire defense on appeal was a creation solely
for the appeal. The State’s handling of the issue amounts
to a waiver of other theories of defense. See, e.g., Fednav
Int’l Ltd. v. Continental Ins. Co., 

624 F.3d 834, 841

 (7th
Cir. 2010) (“[A] party has waived the ability to make a
66                           Nos. 12-1854, 12-2011 & 12-2058

specific argument for the first time on appeal when the
party failed to present that specific argument to the
district court, even though the issue may have been
before the district court in more general terms.”);
Domka v. Portage County, 

523 F.3d 776, 783

 (7th Cir. 2008)
(“[A] party opposing a summary judgment motion
must inform the trial judge of the reasons, legal or
factual, why summary judgment should not be entered.
If it does not do so, and loses the motion, it cannot raise
such reasons on appeal.”) (citations omitted).5
  The majority has chosen, however, to indulge this
tactic by allowing the State to prevail based on argu-
ments that were never made to the district judge.
I disagree, but even more to the point, the State’s late
and ad lib attempt to come up with a viewpoint-neutral
defense of the payroll deduction policy is further evi-
dence that the defense is just a pretext for unconstitu-
tional viewpoint discrimination.
  On the merits of this new argument, the State cannot
avoid investigation into viewpoint discrimination by
defining the nonpublic forum as one intended to
support a certain viewpoint, even if the definition is



5
  Plaintiffs did not argue that the State waived these defenses
(though they noted that the defenses were asserted for the first
time on appeal), but the waiver doctrine is designed for the
protection of the court as much as for that of an opposing
party, “and therefore need not be asserted by a party for us to
invoke it.” United States v. Hassebrock, 

663 F.3d 906, 914

 (7th
Cir. 2011) (citations omitted).
Nos. 12-1854, 12-2011 & 12-2058                                 67

framed in a facially neutral way. And yet that is exactly
the argument advanced by the State when it explains
that, “to the extent the payroll systems are considered
nonpublic fora, the purpose of the fora is to facilitate
dues deductions for those organizations that serve em-
ployees with full collective bargaining privileges.”
State Reply Br. 36.6
  We have previously acknowledged the potential to
camouflage impermissible viewpoint discrimination by
cloaking it in facially neutral classifications. “Because
subject matter discrimination is clearly constitutional in
nonpublic fora, classifying a particular viewpoint as a
subject rather than as a viewpoint on a subject will justify
discrimination against the viewpoint. This inherent
manipulability of the line between subject and viewpoint
has forced courts to scrutinize carefully any content-
based discrimination.” Grossbaum v. Indianapolis-Marion



6
   City of Charlotte v. Local 660, Int’l Ass’n of Firefighters upon
which the State relies for support that it can pick and choose
who participates in its nonpublic forums does not support the
corollary point the State hopes it does, namely that the legisla-
ture’s choices are wholly immune from judicial review. 

426 U.S. 283

 (1976). The Supreme Court determined that the regula-
tion in question, which allowed only those wage deductions
that benefitted all city or municipal employees, was reasonable.
The Court focused on the fact that the City had “not drawn
its lines in order to exclude individual deductions,” and
therefore found this universal ban on all checkoffs for any
unions both rational and compatible with the Equal Protection
Clause. 

Id. at 288

.
68                         Nos. 12-1854, 12-2011 & 12-2058

County Bldg. Auth., 100 F.3d at 1298 (citations omitted).
The State may not, therefore, pick and choose who may
participate in the nonpublic forum based on the
speaker’s viewpoint. This protection applies to both the
definition of the purpose of the nonpublic forum and to
the criteria for eligibility to participate in that forum. We
should affirm the district court’s decision striking
down the ban on payroll deductions of union dues for
“general” public employees.


II. The Annual Recertification Requirement
  I concur in the portion of the judgment upholding the
annual recertification requirement against the equal
protection challenge. It is for me a close question. This
provision and its flimsy justifications raise concerns
very similar to those regarding the dues withholding
provision. In essence, though, rational-basis review
under the Equal Protection Clause is much more
forgiving than the First Amendment standard for a
nonpublic forum. Even so, we should also acknowledge
that the basis for reversing this portion of the district
court’s judgment consists of arguments the State never
presented to the district court. But for the broad
deference to legislatures under rational-basis review,
I would deem these arguments waived and conclude as
the district court did that there was no rational basis
for this unprecedented and punitive provision.
  The district court applied rational-basis review to
the annual recertification provisions. (The district court
acknowledged that the provisions might present First
Nos. 12-1854, 12-2011 & 12-2058                           69

Amendment issues similar to the payroll deduction
provision. The plaintiffs did not pursue such a theory,
though, and I also do not consider it.) Under rational-
basis review, the legislature has the “widest possible
latitude within the limits of the Constitution.” Carmichael
v. Southern Coal & Coke Co., 

301 U.S. 495, 510

 (1937). The
plaintiffs have the burden to “negative every con-
ceivable basis which might support” the legislation.
Lenhausen v. Lake Shore Auto Parts Co., 

410 U.S. 356, 364

(1973) (citations omitted); see also Nordlinger v. Hahn,

505 U.S. 1, 17

 (1992) (“Petitioner has not demonstrated
that no rational bases lie for either of these exemptions.”).
  Rational-basis review creates the odd phenomenon
that arguments to justify challenged legislation may be
raised for the first time on appeal. Each level of the judi-
ciary is charged with using its imagination to identify any
possible legitimate reason for the challenged law. See
FCC v. Beach Communications, Inc., 

508 U.S. 307, 312, 320

(1993) (reversing circuit court’s finding that law
was unconstitutional after identifying “plausible ratio-
nales,” and explaining that the “assumptions underlying
these rationales may be erroneous, but the very fact
that they are ‘arguable’ is sufficient, on rational-basis
review, to ‘immunize’ the congressional choice from
constitutional challenge”), citing Vance v. Bradley, 

440 U.S. 93, 112

 (1979); see also Board of Trustees of Univ. of
Alabama v. Garrett, 

531 U.S. 356, 367

 (2001) (“Moreover,
the State need not articulate its reasoning at the moment
a particular decision is made. Rather, the burden is
upon the challenging party to negative ‘any reasonably
70                          Nos. 12-1854, 12-2011 & 12-2058

conceivable state of facts that could provide a rational
basis for the classification.’ ”) (citations omitted).
  All of this is to say simply that rational-basis review
is one of those unusual alcoves in the law where we
overlook a party’s failure to present its case to the
district court. Given this leniency afforded to the State,
I concur with the result on this issue, noting that the
district court itself, recognized this would be the appro-
priate disposition “but for,” in its words, “defendants’
failure to articulate and this court’s inability to posit,
how an annual, absolute majority vote by a wholly-volun-
tary union could rationally advance a reasonable pur-
pose.” Wisconsin Educ. Ass’n Council v. Walker, 

824 F. Supp. 2d at 869

.
  I also agree with the district court’s observation
that requiring a majority of all eligible voters is nearly
unprecedented and seems irrational, at least if one
assumes for purposes of argument that the law was not
intended to be part of a political reward for supporters
and punishment for opponents. 

Id. at 869

. To under-
stand this, suppose we applied the same approach to
elections for presidents or governors: assume that all
eligible voters who do not vote should be counted as
“no” votes or “none of the above” votes. The votes for
“no” or “none of the above” would win virtually every
election.7 Even in the most lopsided presidential elections


7
  Scholars have coined the term “voter eligible population”
(VEP), which is a smaller universe than the voting age popula-
                                                 (continued...)
Nos. 12-1854, 12-2011 & 12-2058                                    71

of the past century, the number of eligible nonvoters
exceeded the winner’s popular vote.8 The same is true
of Wisconsin gubernatorial elections.9



7
  (...continued)
tion (VAP). The VAP includes all people 18 and older who
are theoretically able to vote, while the VEP excludes from
that number felons, noncitizens, and mentally incompetent
individuals, all of whom would be legally barred from voting.
For an in-depth explanation of the methodology used to
formulate the VEP, see Michael McDonald & Samuel L. Popkin,
The Myth of the Vanishing Voter, 95 Am. Pol. Sci. Rev. 963 (2001)
[hereinafter Myth of the Vanishing Voter]. Professor McDonald,
a leading scholar in the field, has collected some of this
data online as well. See United States Elections Project, last visited
Jan. 16, 2013, available at http://elections.gmu.edu/[hereinafter
U.S. Elections Project].
8
  In 1984, for example, approximately 161,980,000 people
were eligible to vote. President Ronald Regan received
54,455,074 votes, which were just 33.6 percent of the VEP.
(For the total popular vote, see Congressional Quarterly,
Presidential Elections Since 1789 at 132 (4th ed.) [hereinafter
Congressional Quarterly]. To calculate the total VEP, see Myth
of the Vanishing Voter at 966, which reports what percentage
of the VEP is constituted by the total popular vote.) In
1964, there were approximately 112,492,000 eligible voters.
President Lyndon Johnson received 43,126,584 votes, which
were just 38.3 percent of the total VEP. See Congressional
Quarterly at 127, and Myth of the Vanishing Voter at 966.
9
  In the 2010 Wisconsin gubernatorial election, there were
approximately 4,170,500 eligible voters. Governor Walker
                                              (continued...)
72                            Nos. 12-1854, 12-2011 & 12-2058

  It is far from clear why completely voluntary unions
with minimal bargaining rights could need annual
recertification under voting rules that would undermine
our nation’s democracy if applied to government elec-
tions. As legitimate bases for the annual recertifica-
tion provisions for unions representing general em-
ployees, the State argues that they will promote
employee choice and that, because the rest of Act 10
has weakened the powers of these unions so much, the



9
  (...continued)
received 1,128,941 votes, which were 27 percent of the VEP. For
the 2010 election results, see Wisconsin State Government
Accountability Board (GAB), GAB Canvass Reporting System,
Dec. 8, 2010, available at http://gab.wi.gov/sites/default/files/
percent%20results%20post%20recount_120710.pdf [hereinafter
GAB Data]. For the calculation of the Wisconsin 2010 VEP, see
U.S. Elections Project, available at http://elections.gmu.edu/
Turnout_2010G.html. In the 2006 Wisconsin gubernatorial
election, there were approximately 4,064,500 eligible voters.
Governor Doyle received 1,139,115 votes, which were 28 per-
cent of the VEP. See U.S. Elections Project, available at
http://elections.gm u.edu/Turnout_2006Ghtm l, and GAB
Data, available at http://elections.state.wi.us/docview.asp?docid=
10080&locid=47. In the 2002 Wisconsin gubernatorial election,
there were approximately 3,908,000 eligible voters. Governor
Doyle received 800,515 votes, which were 20 percent of the
VEP. See U.S. Elections Project, available at http://elections.
gmu.edu/Turnout_2002Ghtml, and Dave Leip’s Atlas of U.S.
Presidential Elections, available at http://uselectionatlas.org/
RESULTS. (All websites last visited Jan. 16, 2013).
Nos. 12-1854, 12-2011 & 12-2058                            73

State simply has little to no interest in providing for
stability in union representation of these employees. By
contrast, because public safety employee unions retain
their traditional powers, the State says, it has a substan-
tially greater interest in stable representation so that it
can negotiate and work with familiar counterparts.
Under rational-basis review, “a legislative choice is not
subject to courtroom fact-finding and may be based
on rational speculation unsupported by evidence or
empirical data.” FCC v. Beach Communications, 

508 U.S. 307, 315

 (1993). That’s about the most that can be said
in favor of the annual recertification requirement,
other than as punishment of political opponents.1 0


                           * * *




10
   Act 10’s overall aim of cost saving does not appear to
justify this provision, for the record suggests that annual
recertification will actually cost the State money. A letter
from the Wisconsin State Employment Relations Commission
to the Secretary of the Department of Administration voiced
“grave concerns” about the annual recertification provi-
sion. Supp. App. at 98. The letter detailed the administrative
impossibilities of conducting these annual recertifications on
site and the considerable strain this would have on admin-
istrative resources given that it was a “labor intensive en-
deavor.” 

Id.

 The Commission estimated, based on past experi-
ence, that the postage alone would cost the State $176,000
for every 200,000 employees. Id. at 99.
74                         Nos. 12-1854, 12-2011 & 12-2058

  As I said at the outset, elections have consequences.
The United States Constitution does not forbid all legisla-
tion that rewards friends and punishes opponents.
The principal provisions of Wisconsin’s Act 10 may fit
that description, but they are still constitutional under
the generous standard of rational-basis review. The
new, selective limits on payroll deductions for union
dues, however, are subject to the more demanding
First Amendment standards for a nonpublic forum
and flunk that test. I would affirm that portion of the
district court’s judgment.




                          1-18-13