Wisconsin is about to pass a right-to-work law. Yesterday, Rachel provided an excellent background on this bill. Here, I want to make just a couple of comments.

First, the relevant language of the Wisconsin bill is identical to Indiana’s recently-enacted statute. The law would dictate that no one may be required, as a condition of employment, to “[p]ay any dues, fees, assessments or other charges or expenses of any kind or amount.” As we reported and discussed, the Indiana law was challenged on preemption grounds in a case called Sweeney v. Pence, but that challenge was unsuccessful. Significantly, though, a petition for rehearing en banc nearly succeeded when five Seventh Circuit judges from across the ideological spectrum (Judges Posner, Rovner, Wood, Williams, and Hamilton) voted to grant the petition (five voted not to).

The preemption analysis that Judge Wood adopted in her Sweeney dissent will be available to opponents of the Wisconsin law. So, too, would a slightly narrower preemption attack that Catherine Fisk and I put forward in a recent article. There, Fisk and I explained that pursuant to NLRA §14(b), right-to-work laws can prohibit collective bargaining agreements that condition employment on a worker’s “membership” in a labor organization. And, we argued that the Supreme Court’s decisions in General Motors, Schermerhorn, and Beck together imply that the definition of “membership,” for 14(b) purposes, means:

[T]he financial requirement of paying dues and fees equivalent to the share of member dues and fees that fund the union’s collective bargaining and contract administration functions. The definition of membership that emerges from the Court’s opinions is thus far broader than the literal “membership” to which section 14(b) refers, but not so broad as to cover all forms of mandatory payments from employees to unions. Indeed, the Court’s opinions suggest that a provision in a collective bargaining agreement requiring all employees in a bargaining unit to pay the proportion of membership dues that cover members’ representation in disciplinary matters—but nothing more—would not “require membership” within the meaning of section 14(b). In general terms, so long as the required payments are less than what members pay to support collective bargaining and contract administration functions, they do not constitute the equivalent of membership and thus may not be prohibited.

Thus, right-to-work statutes like Indiana’s and Wisconsin’s – which ban “charges or expenses of any kind or amount” – go beyond what 14(b) permits and therefore are preempted.

It is worth noting that this argument is slightly distinct from and somewhat narrower than the one Judge Wood adopted in her Sweeney dissent. In other words, Judge Wood finds that a broader class of right-to-work laws are preempted: in Wood’s view, laws prohibiting mandatory payment for the costs of collective bargaining and contract administration are themselves beyond what 14(b) allows. Under either theory, however, the Indiana and Wisconsin laws are preempted by federal labor law.

Although this preemption argument will be available to opponents of the Wisconsin right-to-work law, a preemption challenge in Wisconsin would probably be ill-advised. That’s because Sweeney v. Pence is controlling law in Wisconsin (Wisconsin, like Indiana, is in the Seventh Circuit), and so the outcome of a preemption challenge is likely to be a very quick rejection by a district court and then by the seventh circuit. Taking such a case to the Supreme Court, when there’s no positive circuit precedent in favor of finding preemption, would also be unwise. So there’s not much of an argument for pursuing the litigation in Wisconsin.

But there are other states – not in the seventh circuit – where such a challenge might make better sense. Idaho for example. Idaho’s right-to-work law is the same as Indiana’s and Wisconsin’s: it bans agreements that require payment of “dues, fees, assessments, or other charges of any kind or amount to a labor organization.” But Idaho lies in the ninth circuit where Sweeney v. Pence does not control, and where the receptivity of five diverse judges might matter.

If Catherine and I (and Judge Wood and those colleagues who agree with her) are right about preemption, challenging laws like Idaho’s is worth careful and deliberate consideration. Such consideration would involve, of course, not only the potential benefits of winning a preemption challenge.  It would also require weighing the risks that success in the lower courts would ultimately lead to a negative outcome in the Supreme Court, along with any risks that would go along with losing such a case outright.