Wisconsin’s Act 10 is back in court. Here’s what to know about the controversial law.

The Monday court ruling that overturned Wisconsin’s Act 10 collective bargaining law could have massive implications in Wisconsin, where it once sparked massive protests.

While the fallout of the decision is still being determined, and the legal battle is ongoing, the underlying dispute revived arguments that began when the law was first introduced more than 13 years ago.

Here’s a rundown of how Act 10 got its start, and the latest effort to repeal it.

What is Act 10?

Every state law gets a number. Most just don’t grab the public’s attention the way 2011 Wisconsin Act 10 did.

It was — and is — a big deal in Wisconsin because it changed the way public employers, like state agencies and local school districts, deal with employees. And it did all this in Wisconsin, the state where public employee unions were born.

Before Act 10, it was much easier for most public workers to organize unions, collect dues and negotiate wages and benefits.

After Act 10, union membership plummeted in Wisconsin and some unions effectively dissolved, giving state and local governments the power to decide employee wages and benefits without going to the bargaining table.

How did Act 10 pass?

It was introduced by then-Gov. Scott Walker about a month after he was sworn into office, and about three months after the wave election of 2010 that swept Republicans into power in Wisconsin.

Like other states, Wisconsin was reeling from the Great Recession and faced a budget shortfall. Walker had campaigned on a promise to require public employees to pay more for their health care and pensions, but he never discussed his plans to go after unions.

Walker unveiled the broad strokes of Act 10 at a press conference on Friday, Feb. 11, 2011, and by early the next week, massive crowds of protesters began demonstrating at the Wisconsin Capitol.

The state Senate was scheduled to take up the bill the following Thursday, but majority Republicans were forced to delay the vote when they realized the Senate’s 14 Democrats had left Wisconsin.

Republicans eventually passed Act 10 without Senate Democrats about a month later by stripping out some of financial provisions of the bill and leaving changes to union rights.

Walker signed it into law on March 11, 2011, and while it was held up for a few months as part of an open meetings lawsuit, it eventually took full effect that June.

Walker won a recall election in 2012 that unions launched in an effort to oust the governor.

What did Act 10 change?

For unions covered by Act 10, the changes were massive.

For one, it took away their power to negotiate over anything but wages, and it limited any raises to the rate of inflation. No longer could unions covered by the law negotiate changes over things like health care, pension benefits or working conditions.

The law also banned unions from deducting dues from employees’ paychecks. This undercut their funding and their ability to organize.

And it made it more difficult for unions to even exist. Previously, a union could be established by receiving a majority vote in a certification election. Act 10 changed that threshold to a majority vote of all the members who would be covered by the union.

“That turns out to be very hard to get a majority that way because even if everyone says yes, a lot of people don’t vote,” said Jason Stein, who covered Act 10 as a journalist and cowrote a book on the law.

Stein, who is now president of the Wisconsin Policy Forum, notes that a lot of teachers unions chose to recertify, but many represented by the American Federation of State, County and Municipal Employees, or AFSCME, did not.

The Policy Forum released a report in 2022 showing that between 2000 and 2020, no state saw a larger decline in union membership than Wisconsin.

Why did a judge strike down Act 10?

Dane County Circuit Court Judge David Frost’s Monday ruling striking down major portions of Act 10 revolves entirely around how it treats similar types of employees differently.

Act 10 created two groups of employees. Those who are deemed “public safety employees,” like police officers and firefighters, preserved their union rights under the law. The rest of the public workforce falls under the category of “general employees,” who lost their bargaining rights.

The problem, Frost said, is that the list of “general employees” includes people like correctional officers working in state prisons, conservation wardens or Capitol Police.

“The Court can come up with no rational basis for excluding some police and fire employees from the public safety group while including all others,” Frost wrote in a July ruling that set up his decision this week.

Frost said that was a violation of the Wisconsin Constitution’s equal protection clause, making those portions of the law unconstitutional.

Didn’t other courts uphold Act 10?

Act 10 was previously upheld in both state and federal court, but Frost said there were differences in those rulings, and they did not preclude him from hearing the latest challenge.

In 2014, a conservative majority on the Wisconsin Supreme Court upheld the law, declaring that public-sector collective bargaining remains “a creation of legislative grace and not constitutional obligation.”

That same year, the federal 7th Circuit Court of Appeals in Chicago also upheld Act 10, rejecting arguments that the law violated the U.S. Constitution’s equal protection clause.

Frost said this latest lawsuit was brought by a different coalition of unions and focused more narrowly on the equal protection argument between “general” and “public safety” workers. And unlike the federal decision, it was based on the state Constitution.

Where will the appeal go?

Already, Republicans who run the Legislature have appealed the ruling in state court.

University of Wisconsin-Madison Law Professor Robert Yablon said Republicans might ask for a stay of the initial ruling, preventing it from taking effect during the appeal. He said the unions who brought the case might also ask the Wisconsin Supreme Court to hear the appeal directly rather than wait.

But Yablon thinks there’s little doubt who will ultimately resolve the case.

“I’m not aware of any way for them to try to shift this case from state court to federal court,” Yablon said. “The plaintiffs, when they framed their case, they brought it solely as a state constitutional challenge. And it’s the state courts, and ultimately, the state Supreme Court, that has the last word on those kinds of claims.”

How might the Wisconsin Supreme Court rule this time?

How the state Supreme Court handles the latest Act 10 challenge could hinge on who hears the case, including who wins the next Supreme Court election.

The court currently has a 4-3 liberal majority, after Justice Janet Protasiewicz flipped the ideological balance of the court last year. During her campaign, Protasiewicz said she disagreed with the Supreme Court’s 2014 decision upholding Act 10.

“I agree with the dissent in that case, where the authors said Act 10 is unconstitutional,” she said at an event in Madison as a candidate.

Protasiewicz later told the Milwaukee Journal Sentinel that she might consider recusing herself from the case because she marched against the plan when it was in the Legislature and signed the petition to recall Walker over the law.

Justice Ann Walsh Bradley, a member of the court’s liberal bloc who wrote the dissent in the first Act 10 case, is not seeking reelection. That means the ideological balance of the court will again be up for grabs in next April’s election, where the dispute over Act 10 could be front-and-center.