In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

Nos. 20-1672 & 20-1724 

INTERNATIONAL UNION OF OPERATING ENGINEERS, 

LOCAL 139, AFL-CIO, et al., 

Plaintiffs-Appellants, Cross-Appellees, 

v.

JAMES J. DALEY, 

Defendant-Appellee, 

and

WISCONSIN LEGISLATURE, 

Cross-Appellant, Proposed Intervenor. 

____________________ 

Appeals from the United States District Court for the 

Eastern District of Wisconsin. 

No. 19-cv-01233 — J. P. Stadtmueller, Judge. 

____________________ 

ARGUED NOVEMBER 13, 2020 — DECIDED DECEMBER 17, 2020 

____________________ 

Before FLAUM, ROVNER, and BRENNAN, Circuit Judges. 

FLAUM, Circuit Judge. This First Amendment case represents the third constitutional challenge to Wisconsin’s Act 10 

to reach this Court. We previously addressed Act 10 in 
2 Nos. 20-1672 & 20-1724 

Wisconsin Education Association Council v. Walker (WEAC), 

705 F.3d 640 (7th Cir. 2013), and Laborers Local 236 v. Walker

(Laborers), 749 F.3d 628 (7th Cir. 2014). Act 10 significantly altered Wisconsin’s public-employee labor laws. The Act separated public employees into two classes—a select group of 

“public safety employees” with the remainder classified as 

“general employees.” It then made it more challenging for 

general-employee unions to retain certification as exclusive 

bargaining agents, prohibited public-sector employers from 

collectively bargaining with their general employees over anything except base wages, and prohibited public employers 

from deducting union dues from general employees’ 

paychecks. 

Plaintiffs-appellants, a public-employee labor union and 

two of its individual members, challenged these three 

provisions—the annual recertification requirement, the 

limitations on collective bargaining, and the prohibition on 

payroll deduction of union dues—arguing that the provisions 

infringe on their First Amendment rights. The chairman of the 

Wisconsin Employment Relations Commission (WERC) 

moved to dismiss. Shortly thereafter, the Wisconsin 

Legislature moved to intervene. In two separate orders, the 

district court dismissed plaintiffs-appellants’ complaint in 

part for lack of standing and in part for failure to state a claim. 

The district court also denied the Legislature’s motion to 

intervene. Plaintiffs-appellants appeal the dismissal of their 

complaint. The Legislature cross-appeals the denial of its 

motion to intervene. We now affirm. 
Nos. 20-1672 & 20-1724 3

I. Background 

A. Act 10’s Statutory and Legal History 

Wisconsin grants public-sector employees the right to bargain collectively through two principal laws: the State Employment Labor Relations Act (SELRA) and the Municipal 

Employment Relations Act (MERA). These statutes define the 

rights of public employees and their unions as well as their 

relationship with state and municipal employers. Prior to 

2011, public-sector unions enjoyed broad protections and 

privileges under SELRA and MERA. Governmental employers were obligated to bargain in good faith with employee 

representatives over a wide range of subjects, including 

wages and conditions of employment. Public-sector unions 

could petition WERC for an election to certify the union as the 

employees’ exclusive bargaining agent. This certification required only a simple majority of those voting, and the union 

remained the employees’ exclusive agent until 30% of the employee union members petitioned for a decertification election. Unions could also utilize the state and municipal payroll 

systems to automatically collect membership dues. 

In 2011, however, the Wisconsin Legislature amended 

SELRA and MERA with the passage of Act 10. See 2011 Wis. 

Act 10, 2011 Wis. Sess. Laws 23. Act 10 divided Wisconsin 

state and municipal employees into two classes: “[p]ublic 

safety employee[s],” which includes police officers, firefighters, and deputy sheriffs, and “general municipal employee[s],” i.e., everyone else. See Wis. Stat. § 111.70(1)(fm), 

(mm). A subsequent amendment created a third class of 

“[t]ransit employee[s].” See id. § 111.70(1)(fm). Public safety 

and transit employees and their unions continue to operate 

under the pre-Act 10 scheme. 
4 Nos. 20-1672 & 20-1724 

On the other hand, Act 10 subjected general employees to 

the various restrictions on union activity. First, Act 10 limited 

the scope of state and municipal employers’ collectivebargaining obligations with respect to these employees. The 

Act still requires public employers to collectively bargain 

with general employees over base-wage increases, but it 

prohibits public employers from bargaining over anything 

else, including but not limited to other forms of 

compensation—such as overtime or premium pay—as well as 

nonwage issues. See id. §§ 111.70(1)(a), 111.70(4)(mb), 

111.81(1), 111.91(3). Act 10 further mandates that generalemployee unions submit to an annual recertification election 

to retain their status as the employees’ exclusive agent, 

instead of allowing unions to remain certified indefinitely. Id.

§ 111.70(4)(d)3.b. Certification now requires affirmative votes 

from an absolute majority—“at least 51 percent”—of all 

employees in the bargaining unit, not just those voting. Id.

§§ 111.70(4)(d)3.b., 111.83(3)(b). Finally, Act 10 bars public 

employers from deducting union dues from the earnings of 

general employees. Id. § 111.70(3g).1

We have already rejected two challenges to Act 10’s 

constitutionality. The first came in WEAC, where we held that 

Act 10’s prohibition on payroll deductions did not violate the 

First Amendment. 705 F.3d at 645. We concluded that the 

unions’ previous use of the payroll system was equivalent to 

the state subsidizing the unions’ speech. Id. at 646–48. 

1 Act 10 also precludes unions from imposing “fair-share” agreements on 

general employees, which require nonunion employees to pay a portion 

of the costs associated with the collective-bargaining process. Wis. Stat. 

§§ 111.70(2), 111.85. Plaintiffs-appellants do not challenge the constitutionality of these provisions in their complaint. 
Nos. 20-1672 & 20-1724 5

Wisconsin could thus withdraw this subsidy from certain 

groups so long as it did so on a viewpoint-neutral basis, and 

Act 10’s distinction between public safety and general 

employees was, in fact, viewpoint neutral. Id. at 648–49. We 

also upheld Act 10’s collective-bargaining limitation, 

recertification requirement, and payroll-deduction 

prohibition in the face of the WEAC plaintiffs’ Fourteenth 

Amendment equal protection challenge, concluding that 

these provisions survived rational basis review. Id. at 654–57. 

We considered a second challenge to Act 10 in Laborers. 

The plaintiffs there argued that Act 10’s collective-bargaining 

limitation violated their First Amendment right to petition 

and that its various restrictions, in their cumulative effect, violated their First Amendment association rights. 749 F.3d at 

634. They also challenged the collective-bargaining limitation 

under the Equal Protection Clause, arguing that it impermissibly disadvantaged represented employees compared to 

nonunion employees. Id. at 639. We held that the challenged 

provisions did not infringe the plaintiffs’ First or Fourteenth 

Amendment rights. See id. at 638–41. 

In addition, the Wisconsin Supreme Court upheld Act 10 

in Madison Teachers, Inc. v. Walker, 2014 WI 99, 358 Wis. 2d 1, 

851 N.W.2d 337. The plaintiffs in that case alleged that the 

collective-bargaining limitation, payroll-deduction 

prohibition, prohibition of fair-share agreements, and annual 

recertification requirement violated their First Amendment 

associational and Fourteenth Amendment equal protection 

rights. Id. ¶ 2. The state supreme court rejected each 

challenge, holding that “[n]o matter the limitations or 

‘burdens’ a legislative enactment places on the collective 

bargaining process, collective bargaining remains a creation 
6 Nos. 20-1672 & 20-1724 

of legislative grace and not constitutional obligation.” See id.

¶ 160–61. 

B. Factual and Procedural Background 

Plaintiffs-appellants here, Local 139, a general-employee 

union, and Karen Erickson and Heath Hanrahan, two of its 

individual members, challenge the three provisions of Act 10 

described above: the (1) stricter recertification requirement, 

(2) limitation on permissible collective-bargaining subjects, 

and (3) prohibition on payroll deductions of union dues. They 

filed a three-count complaint against defendant-appellee 

James Daley, chairman of WERC, in federal district court, alleging that these provisions violate their rights under the First 

and Fourteenth Amendments and seeking declaratory and injunctive relief. The district court deemed plaintiffs-appellants’ 

Fourteenth Amendment claims waived below, and plaintiffsappellants do not raise them here. Therefore, our analysis proceeds along only First Amendment lines. See United States v. 

Bryant, 750 F.3d 642, 651 (7th Cir. 2014) (“Failure to develop 

an argument on appeal results in waiver even if the argument 

was presented to the district court.”). 

In Count 1, plaintiffs-appellants claimed that the annual 

recertification requirement violates their First Amendment 

rights by compelling them to vote “no,” contrary to their wish 

not to vote at all. Specifically, they alleged that the recertification provision “declares that a non-vote is a vote against Union representation” and “[b]y equating not voting with voting 

no, Act 10 directly infringes on the rights of public employees 

to not engage in speech.” Plaintiffs-appellants asserted that 

they had been “directly harmed by this provision of Act 10” 

in an April 2019 election when Local 139 “received 100% of all 

ballots cast,” but because a majority of employees did not 
Nos. 20-1672 & 20-1724 7

vote, and Act 10 counted their nonvotes as no votes, Local 139 

“was not recertified as the bargaining unit representative.” 

In Count 2, plaintiffs-appellants alleged that Daley had 

unlawfully interpreted Act 10’s collective-bargaining limitation to preclude unions and municipal employers from entering into any agreements regarding nonwage issues, even outside of collective bargaining. Plaintiffs-appellants asserted 

that this interpretation of Act 10 “imposes an arbitrary restriction” upon their ability to negotiate or contract with municipal employers on matters of public concern, in violation 

of the First Amendment. 

Finally, in Count 3, plaintiffs-appellants alleged that the 

payroll-deduction prohibition “constitutes a content based restriction on public employees’ First Amendment rights.” 

They acknowledged that we have “upheld the payroll dues 

deduction prohibition pursuant to Act 10,” but they asked the 

district court to revisit those prior determinations in light of 

the Supreme Court’s decision in Janus v. American Federation 

of State, County, & Municipal Employees, Council 31, 138 S. Ct. 

2448 (2018). 

Daley moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Defendant-appellee 

the Wisconsin Legislature then moved to intervene as a defendant and simultaneously filed a proposed motion to dismiss.2 The district court dismissed Counts 2 and 3 of the complaint in an order issued March 3, 2020, and subsequently dismissed Count 1 in a separate order issued April 7, 2020. 

2 Kristi Koschkee, a public-school teacher, also moved to intervene below. 

She did not file a notice of appeal from the denial of her motion to intervene, however, and is not a party on appeal. 
8 Nos. 20-1672 & 20-1724 

Regarding Count 1, which challenged Act 10’s recertification requirement, the district court held that only the individual plaintiffs could have Article III standing because the recertification provision regulates voting for a union, and “a person’s right to vote is individual and personal in nature.” The 

court held that it was “not clear” whether the individual 

plaintiffs had alleged facts sufficient for standing. The district 

court therefore ordered plaintiffs-appellants to file a supplemental brief addressing the issue of standing as to Count 1. 

In their supplemental response, plaintiffs-appellants requested leave to file an amended complaint adding allegations to establish the individual plaintiffs’ standing. For Erickson, the plaintiffs-appellants explained that an amended 

complaint would allege that she “abstained from voting in the 

2019 recertification election,” she “did want and does want 

Local 139 to serve as her exclusive bargaining representative,” 

and “her abstention from voting was not intended to express 

an intent that she was voting against representation by Local 

139. At most, her intent in abstaining from voting was to accept the will of those who chose to vote.” Therefore, by converting her nonvote into a “no” vote, she “was injured by ... 

the State compel[ling] her to speak against representation by 

Local 139” in a manner contrary to her wishes. Regarding 

Hanrahan, plaintiffs-appellants stated that an amended complaint would allege that he did vote in favor of Local 139 continuing to represent him as his exclusive bargaining representative, and his vote was “unconstitutionally diluted” when 

“the compelled speech of the non-voters le[d] to results which 

actually reversed the will of those who did vote.” 

The district court then dismissed Count 1, concluding that 

the individual plaintiffs lacked standing. The court explained 
Nos. 20-1672 & 20-1724 9

that even if the individual plaintiffs could allege an injury in 

fact, they were “unable to adequately allege causation” because that injury “would be fairly traceable to their fellow union members,” and those members’ decisions not to vote, not 

Daley. The district court further reasoned that “the Supreme 

Court [has] envisaged that a legislature could pass a law requiring a majority of voters to weigh in” for a ballot proposition to succeed. The district court therefore denied plaintiffsappellants leave to amend on futility grounds. 

Regarding Count 2, the district court also held that 

plaintiffs-appellants lacked standing to challenge Act 10’s 

collective-bargaining limitation. Citing to our decision in 

Laborers, the district court stated that the collective-bargaining 

limitation “does not violate Plaintiffs’ First Amendment 

rights because it does not prevent the union or its members 

from speaking.” The court further concluded that to the extent 

plaintiffs-appellants alleged that Daley’s application of the 

collective-bargaining limitation was unconstitutional because 

it “prohibit[ed] municipal employers from listening to what 

the unions have to say, then the injury would run to the 

municipal employers,” not to plaintiffs-appellants. 

Finally, the district court dismissed Count 3’s challenge to 

Act 10’s payroll-deduction prohibition on the merits. The 

court noted that we had “already upheld payroll deduction 

prohibitions” against a First Amendment challenge in WEAC

under the framework set forth in Ysursa v. Pocatello Education 

Association, 555 U.S. 353, 358–59 (2009). Specifically, the 

district court recognized WEAC’s holding that the payrolldeduction prohibition constituted a viewpoint-neutral 

withdrawal of a state subsidy of unions’ speech and imposed 

a viewpoint-neutral distinction between public safety and 
10 Nos. 20-1672 & 20-1724 

general employees. See WEAC, 705 F.3d at 649, 652–53. The 

district court also rejected plaintiffs-appellants’ reliance upon 

the Supreme Court’s decisions in Janus and Citizens United v. 

Federal Election Commission, 558 U.S. 310 (2010), to argue that 

the payroll-deduction prohibition violated individual union 

members’ First Amendment rights, stating that WEAC and 

Ysursa remain good law. 

The district court’s orders together resulted in the 

dismissal of the case. Accordingly, the court also denied as 

moot the Legislature’s pending motion to intervene. 

Plaintiffs-appellants appealed the dismissal of their claims. 

The Legislature cross-appealed the denial of its motion to 

intervene. We consolidated the appeals for consideration. 

II. Discussion 

On appeal, plaintiffs-appellants argue that the district 

court erred by dismissing Counts 1 and 2 for lack of standing 

and Count 3 for failure to state a claim. “If the plaintiff lacks 

standing, the federal court lacks subject matter jurisdiction 

and the suit must be dismissed under [Federal Rule of Civil 

Procedure] 12(b)(1).” Taylor v. McCament, 875 F.3d 849, 853 

(7th Cir. 2017). We review a dismissal both for lack of subject 

matter jurisdiction under Rule 12(b)(1) and for failure to state 

a claim under Rule 12(b)(6) de novo. See id.; Degroot v. Client 

Servs., Inc., 977 F.3d 656, 659 (7th Cir. 2020). “Generally, denials of leave to amend are reviewed for abuse of discretion.” 

Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 

786 F.3d 510, 524 (7th Cir. 2015). But review of “futility-based 

denials includes de novo review of the legal basis for the futility.” Id. 
Nos. 20-1672 & 20-1724 11

A. Standing as to Counts 1 and 2 

Our analysis begins with the district court’s conclusions 

that plaintiffs-appellants lack standing as to Counts 1 and 2. 

“To reach the merits of a case, an Article III court must have 

jurisdiction.” Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 

1945, 1950 (2019). “One essential aspect of this requirement is 

that any person invoking the power of a federal court must 

demonstrate standing to do so.” Hollingsworth v. Perry, 

570 U.S. 693, 704 (2013). To establish standing, “the plaintiff 

must allege an injury in fact that is traceable to the defendant’s 

conduct and redressable by a favorable judicial decision.” 

Casillas v. Madison Ave. Assocs., Inc., 926 F.3d 329, 333 (7th Cir. 

2019) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 

(1992)). “Foremost among these requirements is injury in 

fact—a plaintiff’s pleading and proof that he has suffered the 

‘invasion of a legally protected interest’ that is ‘concrete and 

particularized,’ i.e., which ‘affect[s] the plaintiff in a personal 

and individual way.’” Gill v. Whitford, 138 S. Ct. 1916, 1929 

(2018) (alteration in original) (quoting Lujan, 504 U.S. at 560 & 

n.1)). The allegations in a complaint must establish that the 

plaintiff has “a personal stake in the outcome of the controversy,” id. at 1929 (quoting Baker v. Carr, 369 U.S. 186, 204 

(1962)), rather than a “generalized grievance about the conduct of government,” id. at 1931 (quoting Lance v. Coffman,

549 U.S. 437, 442 (2007)). “In determining at the pleadings 

stage whether the plaintiff’s showing of standing passes muster, we accept as true the pleaded factual matter and draw all 

reasonable inferences in favor of the plaintiff.” Democratic 

Party of Wis. v. Vos, 966 F.3d 581, 585 (7th Cir. 2020). 
12 Nos. 20-1672 & 20-1724 

1. Count 1: The Recertification Requirement 

We turn first to plaintiffs-appellants’ challenge to the 

annual recertification election requirement in Count 1. As a 

preliminary issue, Daley contends that our consideration on 

appeal of plaintiffs-appellants’ standing is limited to the 

allegations contained in the filed complaint, rather than the 

additional allegations plaintiffs-appellants submitted to the 

district court in their supplemental brief. We disagree. While 

the district court’s local rules required plaintiffs-appellants to 

formally move to amend their complaint, see E.D. Wis. Civ. 

R. 15, the district court acted within its discretion to consider 

the allegations in the supplemental brief, see Petty v. City of 

Chicago, 754 F.3d 416, 420 (7th Cir. 2014) (“We have 

consistently and repeatedly upheld a district court’s 

discretion to require strict compliance with its local rules ... .” 

(citation and internal quotation marks omitted)). 

Furthermore, federal courts “have an independent obligation 

to confirm our jurisdiction before adjudicating a case.” 

Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 461 (7th Cir. 2020). 

Having determined it required more information to fulfill this 

obligation, the district court requested supplemental briefing 

regarding standing. The court then based its decision to 

dismiss Count 1 and deny leave to amend on futility grounds, 

at least in part, on the allegations in plaintiffs-appellants’ 

supplemental brief. Therefore, we may appropriately 

consider these additional allegations on appeal. 

Count 1 focuses on whether Act 10 impermissibly compels 

speech from public employees who wish to remain silent. 

Specifically, it alleges that Act 10’s recertification requirement 

infringes on plaintiffs-appellants’ First Amendment right not 

to engage in speech because it effectively provides that 
Nos. 20-1672 & 20-1724 13

nonvotes in the recertification election will be counted as 

votes against union representation, rather than not being 

counted at all. In its initial dismissal order requesting 

supplemental briefing as to Count 1, the district court 

explained that only the individual plaintiffs, and not Local 

139, could have standing to sue because the right to vote is 

“individual and personal in nature.” See Gill, 138 S. Ct. at 

1929. Plaintiffs-appellants then explained in their 

supplemental brief that they could amend their complaint to 

allege that Act 10’s recertification provision 

unconstitutionally compelled Erickson—who supported 

Local 139’s recertification and whose intent in abstaining from 

voting “was to accept the will of those who chose to vote”—

to engage in speech she did not support by converting her 

nonvote into a “no” vote. They also stated that an amended 

complaint would allege that the recertification provision 

diluted Hanrahan’s vote in favor of Local 139 by compelling 

speech from those who abstained from voting, thus reversing 

the results of the election. They also asserted that these 

alleged injuries gave Local 139 associational standing to sue 

on the individual plaintiffs’ behalf. Plaintiffs-appellants argue 

that these allegations satisfy Article III’s standing 

requirements. We disagree. 

Regardless of whether plaintiffs-appellants have sufficiently alleged a constitutional injury in fact as to Erickson 

and Hanrahan, they have not pleaded “a causal connection 

between the injury and the challenged action.” United States 

v. Funds in the Amount of $239,400, 795 F.3d 639, 643 (7th Cir. 

2015) (citing Lujan, 504 U.S. at 560–61). Plaintiffs-appellants 

contend that the individual plaintiffs’ injuries—compelled 

speech and vote dilution—are traceable to Act 10’s treatment 

of nonvotes. The chain of causation between those purported 
14 Nos. 20-1672 & 20-1724 

injuries and Act 10 depends, however, on “the independent 

action of some third part[ies] not before the court,” Lujan, 

504 U.S. at 560 (quoting Simon v. E. Ky. Welfare Rts. Org., 

426 U.S. 26, 41–42 (1976)), specifically, the decisions of union 

members who favored recertification not to vote in the recertification election. As the Wisconsin Supreme Court has explained, “Act 10’s certification election provisions merely 

specify the statutory requirements a certified representative 

must satisfy in order to exclusively negotiate on behalf of the 

general employees in its bargaining unit.” Madison Teachers, 

2014 WI 99, ¶ 65. Nothing in Act 10 impedes members’ ability 

to vote or requires or directs them how to vote. 

Stated differently, the individual plaintiffs’ injuries 

depend on fewer than 51% of members choosing to 

participate in the election. That fact alone undermines 

plaintiffs-appellants’ ability to satisfy the requirement that 

any injury in fact be fairly traceable to Act 10’s recertification 

provision. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 

(2013) (expressing “reluctance to endorse standing theories 

that rest on speculation about the decisions of independent 

actors”). Moreover, as the district court observed, if Erickson 

and the other nonvoting members freely decided to abstain 

despite having presumed knowledge of Act 10’s absolutemajority requirement, then plaintiffs-appellants’ injuries 

“would be fairly traceable to their fellow union members,” 

not Act 10 or Daley. See Cheek v. United States, 498 U.S. 192, 199 

(1991) (explaining that the common law presumes that “every 

person kn[ows] the law.”). 

In sum, plaintiffs-appellants’ allegations regarding Count 

1 in their complaint and supplemental briefing do not establish that the claimed injuries to Erickson or Hanrahan are 
Nos. 20-1672 & 20-1724 15

fairly traceable to Act 10’s recertification provision. The individual plaintiffs-appellants thus do not have standing. Furthermore, we agree with the district court’s conclusion that 

amendment as to Count 1 would be futile. Although Federal 

Rule of Civil Procedure 15(a)(2) directs courts to “freely give 

leave [to amend] when justice so requires,” courts may deny 

a proposed amended pleading if the amendment would be 

futile. Here, the fact that plaintiffs-appellants have not alleged 

standing to sue, despite receiving instruction from the district 

court and an opportunity to file supplemental briefing, indicates the futility of granting further leave to amend. 

We also conclude that Local 139 lacks standing as to Count 

1. The only theory of standing plaintiffs-appellants assert for 

Local 139 is associational standing on behalf of its members. 

Associational standing requires an organization’s “members ... [to] have standing to sue in their own right.” Vos, 

966 F.3d at 586. Because we determine that no member of Local 139 has standing to challenge this provision, Local 139 

does not have standing to sue on their behalf. See Hunt v. 

Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). 

2. Count 2: The Collective-Bargaining Limitation 

Regarding Count 2, plaintiffs-appellants allege that 

Daley’s interpretation of Act 10’s collective-bargaining 

limitation wrongfully prohibits all agreements between 

unions and municipal employers regarding nonwage issues, 

even if not collectively bargained. They assert that this 

wrongful interpretation injured Local 139 by precluding it 

from “entering into agreements that are fully consistent with 

Act 10.” Relying on our decision in Laborers, the district court 

held that plaintiffs-appellants lacked standing because Act 10 

did not infringe their First Amendment rights. On appeal, 
16 Nos. 20-1672 & 20-1724 

plaintiffs-appellants acknowledge Laborers but contend that 

the district court erred in dismissing Count 2 for lack of 

standing because Daley’s interpretation goes beyond the 

statutory text to “prevent[] the giving and receiving of speech 

(i.e., a back and forth conversation), which is not prohibited 

by Wis. Stat. [§] 111.70(a)(1) or Act 10 generally.” 

In Laborers, the plaintiff unions argued that Act 10’s 

collective-bargaining limitation3 violated their First 

Amendment petition clause rights because it “bars Wisconsin 

public employers from voluntarily entering into binding 

negotiations with a group of employees,” even if they want to 

bargain outside of MERA’s statutory framework, 749 F.3d at 

633, 636, essentially the same argument that plaintiffsappellants make here. We rejected that claim, concluding that 

Act 10’s collective-bargaining limitation “does not proscribe 

any conduct by the unions themselves.” Id. at 634. It “does not 

prohibit the unions from forming,” “meeting,” or 

“advocating on behalf of their members in any way they see 

fit.” Id. Furthermore, “[n]othing in ... Act 10 generally[] 

precludes the unions or their members from expressing their 

views to their municipal employer or from trying to persuade 

the employer to adopt a particular policy.” Id. at 636. “Instead, 

the collective-bargaining restriction acts upon government 

employers. The statute tells these employers that they may not 

enter into binding agreements with their employees on a 

3 The specific provision at issue in Laborers provides that except as stated 

under Wis. Stat. § 111.70 et seq. “no local governmental unit may collectively bargain with its employees.” Wis. Stat. § 66.0508(1m). The challenged provision here, Wis. Stat. § 111.70(4)(mb)1., prohibits municipal 

employers, a local governmental unit, from collectively bargaining with 

employees about anything except total base wages. 
Nos. 20-1672 & 20-1724 17

collective basis about anything other than base wages.” Id. at 

634–35. Thus, “general employees remain free to associate 

and represented employees and their unions remain free to 

speak; municipal employers are simply not allowed to listen.” 

Id. at 635 (citation omitted); see also WEAC, 705 F.3d at 646 

(“Act 10 places no limitations on the speech of general 

employee unions, which may continue speaking on any topic 

or subject.”). 

Plaintiffs-appellants have not pleaded a constitutional injury under Laborers. They alleged in the complaint and argue 

on appeal that municipal employers “approached Local 139 

to provide services relating to training, temporary staffing 

and health benefits.” They also argue that the “same municipalities declined to enter into agreements with Local 139 

based on advice they received from WERC that such agreements would violate Act 10.” Under plaintiffs-appellants’ 

view, then, they could otherwise freely discuss certain topics 

with municipal employers, but Act 10 restricted the municipal employers from entering into agreements regarding those 

topics. That situation is fully consistent with Laborers. Accordingly, plaintiffs-appellants have suffered no invasion of their 

First Amendment rights from Daley’s interpretation and application of Act 10’s collective-bargaining limitation because 

they retain their rights to speak and associate freely. Moreover, to the extent they allege that Act 10, as applied, is unconstitutional because Daley interprets it to preclude municipal 

employers from listening to the union’s speech, we agree with 

the district court that “the injury would run to the municipal 

employers, not to the union.” 

Perhaps anticipating this conclusion, as a backstop 

plaintiffs-appellants encourage us to revisit our 
18 Nos. 20-1672 & 20-1724 

determination in Laborers that Act 10’s collective-bargaining 

limitation is constitutional because it does not restrict the 

ability of unions and their members to speak, only the ability 

of municipal employers to listen. They assert that the 

Supreme Court’s decision in Janus recognized that the right of 

unions and their members to speak on topics of public 

concern, whether through collective bargaining or otherwise, 

includes “the right to have a meaningful interaction when a 

municipality is willing.” Therefore, they are “troubled by the 

rationale” we espoused in Laborers. 

We decline to reconsider our precedent. Our holding in 

Laborers relied on the Supreme Court’s decisions in Smith v. 

Arkansas State Highway Employees, Local 1315, 441 U.S. 463 

(1979) (per curiam), and Minnesota State Board for Community 

Colleges v. Knight, 465 U.S. 271 (1984). Those cases held that 

the First Amendment does not entitle public employees to an 

audience with the government. See Smith, 441 U.S. at 465 

(“[T]he First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.”); 

Knight, 465 U.S. at 285, 286–87 (“Nothing in the First Amendment or in this Court’s case law interpreting it suggests that 

the rights to speak, associate, and petition require government policymakers to listen or respond to individuals’ communications on public issues.”). While plaintiffs-appellants 

argue that in light of Janus “there is every reason to believe 

the Supreme Court would be open to righting this historical 

wrong to the extent Smith and Knight bar Plaintiffs’ claim on 

this issue,” Smith and Knight remain good law; Janus did not 

address either case, and plaintiffs-appellants provide no 

meaningful explanation as to why or how Janus affects Smith

and Knight. “No lower federal court can overrule a Supreme 
Nos. 20-1672 & 20-1724 19

Court precedent.” Foreman v. Wadsworth, 844 F.3d 620, 623 

(7th Cir. 2016). Therefore, Laborers dictates the outcome here. 

See De Leon Castellanos v. Holder, 652 F.3d 762, 765 (7th Cir. 

2011) (noting that “it would take compelling circumstances, 

or an intervening on-point Supreme Court decision, to disturb” settled circuit precedent). 

Accordingly, we agree with the district court that 

plaintiffs-appellants lack standing to bring their Count 2 

challenge to Act 10’s collective-bargaining limitation. 

B. Failure to State a Claim as to Count 3 

We turn next to the district court’s dismissal of Count 3 for 

failure to state a claim for which relief may be granted. In reviewing a district court’s grant of a motion to dismiss for failure to state a claim, we “accept well-pleaded facts as true and 

draw all reasonable inferences in the plaintiffs’ favor.” Shipley 

v. Chi. Bd. of Election Comm’rs, 947 F.3d 1056, 1060–61 (7th Cir. 

2020). To withstand a motion to dismiss, a complaint must 

“state a claim to relief that is plausible on its face.” Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009). 

In Count 3, plaintiffs-appellants claim that Act 10’s preclusion of voluntary dues deductions infringes on individual 

employees’ First Amendment rights. They acknowledge that 

we upheld Act 10’s payroll-deduction prohibition in WEAC, 

and that our precedent and that of the Supreme Court, particularly Ysursa v. Pocatello Education Association, appear to foreclose their challenge. Nonetheless, plaintiffs-appellants make 
20 Nos. 20-1672 & 20-1724 

a convoluted attempt to distinguish this case from Ysursa and 

WEAC. Failing that, plaintiffs-appellants also argue that we 

should revisit our WEAC decision through the lens of the Supreme Court’s decisions in Janus and Citizens United v. Federal 

Election Commission. 

In Ysursa, the Supreme Court upheld a law prohibiting 

payroll deductions for union political activities because the 

First Amendment “does not confer an affirmative right to use 

government payroll mechanisms for the purpose of obtaining 

funds for expression.” 555 U.S. at 355. Therefore, “a legislature’s decision not to subsidize the exercise of a fundamental 

right does not infringe the right.” Id. at 358 (quoting Regan v. 

Tax’n With Representation of Wash., 461 U.S. 540, 549 (1983)). 

The Court concluded that while “publicly administered payroll deductions for political purposes can enhance the unions’ 

exercise of First Amendment rights,” states have “no obligation to aid the unions in their political activities.” Id. at 359. 

Moreover, the decision not to allow payroll deductions “is not 

an abridgment of the unions’ speech”; instead, “they are free 

to engage in such speech as they see fit.” Id. Payroll-deduction 

prohibitions thus represent a state’s decision to “decline[] to 

promote that speech by allowing public employee checkoffs 

for political activities.” Id. at 355. 

We applied Ysursa in WEAC to uphold Act 10’s payrolldeduction prohibition against a First Amendment challenge. 

The plaintiffs there attempted to distinguish Act 10 from the 

law in Ysursa by noting that Act 10’s prohibition applied only 

to general employees, rather than all public employees. 

WEAC, 705 F.3d at 646. We held that this distinction did not 

alter the analysis because “Act 10 erects no barrier to speech 

and speaker-based discrimination is permissible when the 
Nos. 20-1672 & 20-1724 21

state subsidizes speech.” Id. In other words, a “government 

subsidy ‘that discriminates among speakers does not implicate the First Amendment unless it discriminates on the basis 

of ideas.’” Id. (quoting Leathers v. Medlock, 499 U.S. 439, 450 

(1991)). Applying that understanding, we held Act 10 to be 

constitutional under rational basis review because it “is neither facially discriminatory nor a neutral façade for viewpoint 

discrimination.” Id. at 648. 

Plaintiffs-appellants attempt to escape this precedent by 

arguing that WEAC did not consider Act 10’s impact on the 

First Amendment rights of individual employees, rather than 

unions—as distinct from the analysis in Ysursa. This argument overlooks the fact that the Supreme Court rendered this 

distinction immaterial in Ysursa by concluding that “the State 

is not constitutionally obligated to provide payroll deductions at all,” so long as it does not discriminate based on viewpoint. 555 U.S. at 359. While plaintiffs-appellants complain 

that Ysursa’s rationale “defies logic,” that does not change the 

fact that it is binding on this Court. 

We find similarly unavailing plaintiffs-appellants’ argument that Ysursa’s rationale does not apply here because Act 

10, unlike the statute in Ysursa, “does not impose a blanket 

prohibition or draw constitutionally permissible lines” because it “allows payroll deductions for some favored Unions, 

but not others.” We rejected these exact arguments in WEAC; 

we concluded both that “speaker-based discrimination is permissible when the state subsidizes speech” and that “Act 10 

is neutral—it does not tie public employees’ use of the state’s 

payroll system to speech on any particular viewpoint.” 

705 F.3d at 646, 648. Therefore, Act 10’s payroll-deduction 

prohibition passed rational basis review, despite applying 
22 Nos. 20-1672 & 20-1724 

only to general employees and not public safety employees. 

Id. at 657. 

In an effort to save their claim, plaintiffs-appellants rely on 

Citizens United, arguing that “WEAC did not explain how a 

law precluding individual employees from funding an 

organization of their choice can be squared with” the holding 

of that case. We expressly considered Citizens United in 

WEAC, however, noting that the law there, unlike Act 10, 

“actively created [a] barrier[] to speech rather than mere 

subsidies. ... by forbidding certain speakers from spending 

money, akin to prohibiting speech altogether.” Id. at 648. 

Despite plaintiffs-appellants’ claims to the contrary, Act 10 

does not preclude municipal employees from funding their 

union if they so choose or prohibit unions from freely 

spending their money. Rather, Act 10 prohibits municipal 

employers from “deduct[ing] labor organization dues from 

the earnings of a general municipal employee or supervisor.” 

Wis. Stat. § 111.70(3g). 

Plaintiffs-appellants’ contention that we should revisit 

WEAC because Janus overruled Ysursa fares no better. Janus

held that the First Amendment prohibits compelled speech in 

the form of mandatory agency fees. 138 S. Ct. at 2486. It did 

not mention Ysursa, let alone overrule its holding that states 

have no obligation to provide any payroll deductions. 

Plaintiffs-appellants concede that “Janus did not have the 

opportunity to have directly overruled or altered the 

framework of Ysursa.” Given that the Supreme Court does not 

normally overturn or dramatically limit its precedents sub 

silentio, Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 

1, 18 (2000), we conclude that Ysursa—and by extension, 

WEAC—still controls. 
Nos. 20-1672 & 20-1724 23

Finally, plaintiffs-appellants dispute the classification of a 

payroll deduction as a subsidy, arguing that this classification 

“ignores the de minimis burden on a governmental employer 

to provide that option to its employees.” They therefore ask 

that we remand this case to conduct discovery on the burden 

payroll deductions impose on the state. As we noted in 

WEAC, however, “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.” 705 F.3d at 645 (citing Ysursa, 555 U.S. at 358–59). 

Accordingly, the district court appropriately dismissed 

Count 3 of plaintiffs-appellants’ complaint for failure to state 

a claim. 

C. The Legislature’s Motion to Intervene 

Because we now affirm the district court’s dismissal of all 

three counts in plaintiffs-appellants’ complaint, we agree 

with its conclusion that the Legislature’s motion to intervene 

is moot. 

III. Conclusion 

For the reasons explained above, we AFFIRM the district 

court’s dismissal of plaintiffs-appellants’ complaint and denial of leave to amend, as well as the district court’s denial of 

the Legislature’s motion to intervene as moot.