The Minimum Wage Shows Why (and How) We Should Vote Today

It is time for the states to lead.

Every once in awhile in the history of this great country of ours, the federal government just can’t get the job done. Partisan gridlock, constitutional uncertainty, public distrust all play a role. But one of the great strengths of the American system is that the states — those laboratories of democracy, as Louis Brandeis called them — can act when Washington will not. Abolitionism, women’s suffrage, health care reform, gay rights: All started at the state level.

This is one of those times. Our national system is inert. Our national leaders are mired in the muck of inaction.

And yet there is hope. For today is Election Day, and on this day, we will elect 36 governors. This is no time to stay home when the polling places are open. This is a time to choose leaders who will act where Washington has not.

I can think of no better example of the choice we face as a country today than the minimum wage.

After World War II, Congress set the minimum wage at approximately half the average wage in the country. In today’s dollars, it was over $10 an hour. Earning the minimum wage, one full-time worker could support a family of three above the poverty line.

Today, the federal minimum wage is $7.25, less than 36 percent of the average wage. It’s so low that it can’t even keep a family of two out of poverty.

Unlike Social Security or Medicare payments, the minimum wage is not indexed to the cost of living. Only Congress can raise it. The last time they did so was 2009. Democrats proposed raising it again earlier this year, but the majority of senators opposed it.

The feds have failed to act. It’s time for the states to lead.

And we have ample evidence that they can. Twenty-three states already have minimum wages higher than $7.25. Five states — Alaska, Arkansas, Illinois, Nebraska, and South Dakota — have an initiative on today’s ballot to increase theirs.

But not everyone is onboard.

“I don’t think it serves a purpose,” said Wisconsin’s Republican governor Scott Walker last month.

“I don’t think as governor I want to be the cause of someone losing their job,” said Greg Abbott, the Republican candidate for governor in Texas, in explaining his opposition to raising the minimum wage. Pennsylvania’s Republican governor Tom Corbett made a similar argument when stating his opposition last year.

At least they pretended to know what they were talking about. When Republican Governor Rick Scott was asked what Florida’s minimum wage should be, he said, “How would I know?”

These men are on today’s ballot in four of our nation’s largest and most influential states.

And they are tragically out-of-step with the lessons of economic history. In a recent study, the economists Hristos Doucouliagos and T.D. Stanley survey the vast research that economists have done measuring the impact of the minimum wage in recent decades — 64 papers in total — and they find “little or no evidence” that minimum wage increases caused job losses.

On the contrary, raising the minimum wage is a clear boost to the economy. In another recent paper, the economist Arindrajit Dube found that raising the minimum wage significantly reduces the poverty rate, a finding that is consistent with the other 12 studies economists have published in recent years measuring the same effect in different ways.

Only a politician severely out-of-touch with the modern economy could think otherwise. Today’s corporations don’t have to cut back jobs when wages rise. They have to cut back profits, which are at an all-time high. In the long run, they might not have to cut back anything. Higher wages lead to higher productivity, better health, fewer strikes, lower turnover, and higher consumption, which in turn leads to more demand for their products and therefore higher profits.

Individual companies may not want to raise wages if their competitors won’t, but when everyone does it, everyone benefits.

Trying to save money by keeping the minimum wage low is like trying to improve your health by starving yourself. It’s classic shortsighted behavior, hardly the visionary leadership that we’d like to see in the governor’s mansion.

That’s why today’s election matters. In this age of do-nothing politics, it’s easy to despair, but we must remember the intent behind the design. The same founding fathers who created a federal system that resists radical change also created a state system that encourages experimentation. Today we celebrate their creation, and we direct its attention to the challenges of our time.

If the feds do not act, the states will. We the voters will make sure of it.

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This op-ed was originally published in the Huffington Post.

Why 2011 Wisconsin Acts 10 and 32 Are Unconstitutional

Earlier today, Judge Juan B. Colas (Circuit Court of Dane County) struck down several controversial provisions of 2011 Wisconsin Acts 10 and 32, the statutes signed by Governor Scott Walker to restrict collective bargaining by public unions and reduce retirement benefits for public employees.

In celebration of this decision, we will publish a lightly edited excerpt of Judge Colas’s opinion:

[In these statutes,] the prohibitions against offering base wage increases above the cost of living or negotiating on other terms of employment do not apply to employees who are not represented by a union.

“The holding out of a privilege to citizens by an agency of government upon condition of non-membership in certain organizations is a more subtle way of encroaching upon constitutionally protected liberties than a direct criminal statute, but it may be equally violative of the constitution.” (Lawson v. Housing Authority of City of MilwaukeePersons, even if they have no right to a legislatively conferred benefit, cannot be required as a condition of receiving that benefit, to surrender constitutional rights, “unrelated to the purpose of the benefit” or be required “to comply with unconstitutional requirements.”

It is undisputed that there is no constitutional right to collective bargaining. Similarly, there is no constitutional right to a government-subsidized housing program. Yet the courts have held [in Lawson] that once the government elected to offer subsidized housing it could not condition eligibility for it upon surrender or restriction of a constitutional right unless that surrender or restriction was necessary to prevent a substantial evil that would threaten the operation of the program.

Although the statutes do not prohibit speech or associational activities, the statutes do impose burdens on employees’ exercise of those rights when they do so for the purpose of recognition of their association as an exclusive bargaining agent. The state has imposed significant and burdensome restrictions on employees who choose to associate in a labor organization. The statutes limit what local governments may offer employees who are represented by a union, solely because of that association. It has prohibited general municipal employees from paying union dues by payroll deduction, solely because the dues go to a labor organization

Employees may associate for the purpose of being the exclusive agent in collective bargaining only if they give up the right to negotiate and receive wage increases greater than the cost of living. Conversely, employees who do not associate for collective bargaining are rewarded by being permitted to negotiate for and receive wage increases without limitation. The prohibition on fair share agreements means that employees in a bargaining unit who join the union that bargains collectively for them are required to bear the full costs of collective bargaining for the entire bargaining unit, including employees in the unit who do not belong to the union but receive the benefits of bargaining. Statutes that burden the exercise of a constitutional right for a lawful purpose and reward the abandonment of that right infringe upon the right just as did the the prohibition in Lawson against members of certain associations residing in public housing.

[These statutes] single out and encumber the rights of those employees who choose union bargaining and representation solely because of that association and therefore infringe upon the rights of free speech and association guaranteed by both the Wisconsin and United States Constitutions.

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A challenger on equal protection grounds must show that “the statute treats members of a similarly situated class differently.” (Professional Police Association v. Lightbourn) The statutes prohibit payroll deduction for dues of general employee labor organizations, allow deductions for dues of public safety and transit labor organizations, and do not regulate payroll deduction of dues for any other kind of organization. These classes are equally situated and unequally treated.

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The Act also prohibits the City of Milwaukee from paying the employee share of contributions to the City of Milwaukee Employee Retirement System (“Milwaukee ERS”). That amount is 5.5% of the employee’s qualifying compensation.

The Wisconsin Constitution’s Home Rule Amendment grants municipalities the right to “determine their local affairs and government subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or village.”

Defendants read Van Gilder as holding that compensation of municipal employees is a matter of statewide concern, but that overstates the holding. Van Gilder found “the preservation of order, the enforcement of law, the protection of life and property and the suppression of crime are matters of statewide concern.” The plaintiffs here do not fall into those categories.

Consequently, the court finds that the allocation of responsibility for contributions to the Milwaukee ERS between the City and its employees is a “local affair” for purposes of the Home Rule Amendment. A statute that alters it is an unconstitutional intrusion into a matter reserved to the City of Milwaukee.

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Charter Ordinance § 36-13-3-g states that every participant in the ERS has a “vested and contractual right to the benefits in the amount and on the terms and conditions as provided in law on the date that combined fund is created.” Plaintiffs argue that among the benefits, terms and conditions provided by Ch. 36 of the Charter Ordinance is the obligation that the city pays the employee’s share of the retirement contributions.

Article I, sec. 10 of the United States Constitution and Article I, sec. 12, of the Wisconsin Constitution both bar impairment of contracts.

The elimination of a benefit equal to 5.5% of an employee’s compensation is a substantial impairment, and the defendants do not [offer] any evidentiary facts or expressions of legislative intent which would support a finding that the challenged change was necessary for the preservation of the Milwaukee ERS. Therefore, the plaintiffs have established beyond a reasonable doubt that [the statute in question] violates the contract clauses and is unconstitutional and null and void.