By Brendan Fischer on May 01, 2012

With the recent publication of additional American Legislative Exchange Council (ALEC) documents, new questions are being raised about the source of certain provisions in Wisconsin Governor Scott Walker's controversial collective bargaining legislation. Some of those provisions may be adopted by ALEC for introduction in other states.

According to documents posted by good government organization Common Cause, the Koch-funded, Michigan-based think tank Mackinac Center for Public Policy will ask ALEC at its Spring Task Force Summit on May 11 in Charlotte, North Carolina to adopt as a "model bill" a proposal that strongly resembles sections of Governor Walker's Act 10. Those provisions, requiring that public employee unions recertify with a majority of eligible employees (rather than just a majority of those voting) and do so regularly, were considered some of the most onerous burdens on unions imposed by Act 10, and their source a subject of significant speculation.

The Act 10 provisions that the Mackinac Center will bring to ALEC were recently struck down by a federal court in Wisconsin. That court also rejected the law's prohibition on voluntary union dues deductions, which resembled already-existing ALEC model legislation.

Out-Of-State Influence on Act 10

Many Wisconsin residents were blindsided in February 2011 when Governor Walker introduced his proposal to severely limit public sector collective bargaining. Walker never campaigned on union-busting, and one week before election day he even said he would negotiate with unions.

Walker's Act 10 went beyond requiring employees to contribute more to their healthcare and pensions (which actually was discussed during the election). The law made it nearly impossible for public sector unions to operate in the state by eliminating any opportunities for meaningful collective bargaining, making it more difficult for unions to collect dues, and requiring annual union recertification elections won by an absolute majority of employees, in addition to other changes. "A legislative enactment can always establish mandatory employee contributions for pension and health benefits," said former U.S. Solicitor of Labor and current Wisconsin Law School emeritus professor Carin Clauss, in an interview with CMD last February. "If that is what the governor needs, he can get it without repealing the collective bargaining rights for state and local government employees." Act 10, she said, was "just an excuse to undermine labor relations."

This radical departure from longstanding labor traditions -- the American Federation of State, City and Municipal Employees (AFSCME) formed in 1932 in Madison, Wisconsin, and in 1959 the state was the first to codify public sector collective bargaining rights -- felt to many like it was imposed upon them, rather than being a Wisconsin response to Wisconsin issues.

The inference that Act 10 came from somewhere other than Wisconsin was strengthened by several other states considering similar union-busting proposals. In a March 2011 blog post, University of Wisconsin history professor William Cronon posited one possible source for the anti-union bills simultaneously introduced in Wisconsin, Ohio, Florida, Indiana, and other states: the American Legislative Exchange Council.

Cronon's blog post received hundreds of thousands of hits, prompting the Wisconsin Republican Party to submit an open records request for the self-described political moderate's emails, a move widely perceived as an effort to harass and silence the professor. Paul Krugman of the New York Times wrote, "there's a clear chilling effect when scholars know that they may face witch hunts whenever they say things the G.O.P. doesn't like."

When the Center for Media and Democracy (CMD) analyzed and made available over 800 model bills, provided by a whistleblower, at ALECexposed.org in July 2011, the out-of-state corporate and ideological influence on elected officials in Wisconsin became more clear. Some provisions of Walker's Act 10 appeared influenced by the ALEC "Public Employer Payroll Deduction Policy Act," which prohibits automatic payroll deductions for union dues, and the "Public Employee Freedom Act," which declares that "an employee should be able to contract on their own terms" and "mandatory collective bargaining laws violate this freedom."

What remained a mystery was the source of Act 10's requirements that union recertification elections be carried out each year, and that the election be won by a majority of eligible employees rather than a majority of voters.

What Was the Role of the Mackinac Center?

According to the newly exposed agenda for ALEC's upcoming Commerce, Insurance, and Economic Development Task Force meeting on May 11, 2012, Mackinac Center's Director of Labor Policy, Paul Kersey, will propose "The Election Accountability for Municipal Employees Act" for adoption as a model ALEC bill. Like Act 10, Kersey's proposed bill would require unions to re-certify regularly (with legislators filling-in-the-blank about the exact number of years), with an absolute majority of all eligible members, rather than a majority of those voting -- a standard that no state elected official could easily meet.

The ALEC Commerce, Insurance, and Economic Development Task Force is responsible for approving ALEC's labor agenda, which includes anti-union legislation and bills that would repeal the minimum wage.

It is not clear from the new documents what role Kersey and the Mackinac Center may have had in Walker's original Act 10 proposal. But the Mackinac Center was certainly part of the discussion last year as protests raged around Governor Walker's limits on collective bargaining.

The same week that the Wisconsin Republican Party sent its open records request to Professor Cronon, the Mackinac Center sent requests to labor studies professors at three Michigan universities asking for all records mentioning "collective bargaining," "Wisconsin," "Madison," "Scott Walker," or MSNBC host "Rachel Maddow." This too was perceived by many as an effort to harass scholars.

The Mackinac Center also claimed responsibility for Michigan's "financial martial law" act, signed into law at the height of the Wisconsin protests, giving unelected "emergency financial managers" authority to eliminate union contracts, privatize government services, and dissolve local governments.

Kersey and the Mackinac Center have also long been interested in limiting public sector collective bargaining rights. In 2009, Kersey authored a Mackinac publication outlining a plan to do just that in Michigan. That policy brief proposed "statutory limits on the subject matter of collective bargaining" and an end to "fair share" agreements, both of which appeared in Walker's Act 10. Kersey and Mackinac also gleefully anticipated Walker's attack on collective bargaining in December of 2010, months before Act 10 was introduced.

The Act 10 provisions that the Mackinac Center will introduce to the ALEC Commerce, Insurance, and Economic Development Task Force were recently rejected by a federal court, which held that there was no rational basis for Walker's bill to apply to most public workers, but to specifically exempt the "public safety employees" that had supported Walker in the 2010 election. That court also rejected Act 10's ALEC-inspired prohibition on voluntary union dues deductions.

One Node In a Network

Mackinac Center is part of the State Policy Network, which connects a nexus of state-based think tanks like the MacIver Institute in Wisconsin and the Goldwater Institute in Florida. The State Policy Network is an ALEC member and "Chairman" level sponsor of its 2011 Annual Meeting, and many of its affiliated think tanks -- like the Mackinac Center -- are also ALEC members.

The Mackinac Center does not disclose its donors, but tax records show that it is a benefactor of many of the same funders backing Governor Walker, ALEC, and other right-wing politicians and causes. Since 2001, Mackinac has received at least $80,000 from Koch family foundations, over $472,000 from the Milwaukee-based Bradley Foundation, hundreds of thousands from foundations associated with the Amway and Wal-Mart fortunes, and more funding from many other sources.

ALEC has had a significant impact on changing U.S. laws, state by state, in the nearly 40 years since its founding. It is only one node in a network of think tanks and policy shops working to advance a right-wing agenda in state government -- including in Wisconsin. It is, however, the node by which an extreme ideological agenda, specifically one hostile to the rights of workers, gets translated into legally operative language through templates that can get adopted as binding state law, if passed after corporate lobbyists and politicians pre-vote on it through ALEC task forces.