On February 17, the 14 Democratic members of the Wisconsin senate fled across the state line to the Best Western Clock Tower Resort in Rockford, Ill., the city in which I grew up. They were denying Republicans a three-fifths quorum on a bill that would restrict public unions in Wisconsin. They are believed to be still wandering about the Midwest, on an odyssey that poses problems for democratic government.
One potential solution that has not received enough attention is dividing Wisconsin Senate Bill 11 into several separate bills, and passing the parts that do not require a three-fifths quorum. The most controversial provisions — the restrictions on collective bargaining — are subject to a quorum of only a majority of elected senators, and Republicans hold 19 of the Wisconsin senate’s 33 seats.
Advertisement
Under Article VIII, §8 of the Wisconsin constitution, only “fiscal” bills require a three-fifths (“super”) quorum. And these aren’t merely bills that affect fiscal matters in the generic sense. As restated in Joint Rule 11 of the legislature:
A fiscal bill is any bill which:
(a) Imposes, continues, or renews a tax.
(b) Creates a debt or charge.
(c) Makes, continues, or renews an appropriation of public or trust money.
(d) Releases, discharges, or commutes a claim or demand of the state.
The fact that a constitutional provision is narrow doesn’t mean that it has been interpreted that way by the courts, let alone the attorney general and the legislature. Yet in this case, the interpretation of what constitutes a fiscal statute has been about as narrow as possible. For example, in 1983, the Wisconsin supreme court determined in State v. Stitt that the issuance of short-term debt was not debt under Article VIII of the constitution and thus was not “fiscal.”
The Stitt case is not an aberration: It follows a long line of cases, going back to a questionable 1855 case that held that an entirely new gross-earnings tax on railroads was not a tax with regard to this provision of the constitution, because the new tax regime exempted railroads from even larger existing taxes.
In 1971, the state legislature was considering a bill making it easier for public-sector unions to organize. The Senate obtained a formal opinion of the state attorney general that the collective-bargaining bill was not “fiscal” in nature. In his opinion, the attorney general emphasized “a consistent tendency to limit the definition of a fiscal law.”
Because collective-bargaining rights and the same statutory chapter (111) are at the heart of proposed Senate Bill 11, its most controversial portions are not fiscal. These parts of the bill could be passed with a simple majority of elected members present.
Yet even this analysis overstates the bite of the super-quorum provision of the Wisconsin constitution. The Wisconsin supreme court has determined that statutes are presumptively constitutional and that unconstitutionality has to be shown beyond a reasonable doubt. According to the court, moreover, any portions of a statute that are found to be unconstitutional because they haven’t met the procedural requirements for fiscal statutes should be separated and the rest of the statute upheld.
It makes perfect sense.
What they prize the most is not a direct money matter so go ahead and vote with whoever is in town.
Dick Morris was discussing a similar strategy the other night. Don't create any headlines but keep applying pressure in a piecemeal fashion.
I understand Republicans holding out and trying to get the Dems to break & pass the bill all in one go, but I think the time to split up the bill is arriving quickly. The protests are dying down to the bitter embers on their own -- though they still try to pump it up on the weekends (so Monday is a good day to start the process, and try to get it done before Friday. Then prepare for a final screamathon on Saturday.)
At this point I think the unions/protesters are holding the runaway Dems hostage -- they will have a very hard time returning while there are still drum-beating screaming crowds to make them do a "perp walk". (Notice the Ohio Dems did not run away -- if this was such a great tactic in Wisc, why not? I think "fleebagging" works better for the unions than the politicians.)
I also expect that we will not see a lone Dem or two sneaking back to Madison, it will have to be a large group -- quite possibly all 14 at once. Any Dem who becomes "the lone 20th vote" will be forever shunned and despised as a traitor by their own side (effectively the same if it's 2 or 3 who break ranks.)
It is disappointing to see Rasmussen shows the Dems winning the popularity war so far, thus I think time to push the bill through in pieces.
When a year goes by and the world doesn't end for teachers, I think Walker's popularity can certainly recover. (But if he backs down, he may never bloom into an effective leader.)
Carlos: "applying pressure in a piecemeal fashion" -- I agree.
I hope they have been trying to gradually raise the pressure on Dems through back channels this whole time, and will continue to do so. I would also try to create a public outcry over a red herring, in order to get the crowds worked up for nothing. Then the week after that, do it for real. (Rope-a-dope via "boy who cried wolf".)
What should not be done is giving the protesters any "photogenic hero moments". The longer it goes on with no provocations from the police, the more time they will make themselves look bad screaming at Fox reporters. Let them trash the capitol -- in which case let the world witness that they are savages and slobs.
I still don't think time works in the Dems or protesters advantage -- how long can they keep it up, 6 months? No way. (For one thing school is out in May, and that takes away their biggest pool of organizable chumps.)
Eventually the crowds go away and the Dem 14 slink back in the middle of the night, or a few of those Senators face recall votes in their districts, or something happens to force the issue. (Anyone know at what point their seats can legally be declared "vacated" and special elections held to replace them?)
And fundamentally, this is the "careless govt shutdown" they keep warning Republicans will try to pull in DC, only it's clearly the Democrats (driven by union pressure) who are impeding the business of govt. So it undermines a national Dem argument. (And raises larger questions about Dem-union ties by putting them in the spotlight, I hope.)
Yep. Shot down two weeks ago and I still cantfigure out why?
Pass it tomorrow:
No lay-off notices go out in Friday's mail;
The Capital building smells better and gets cleaned;
You still get to fine the Dems a few grand;
You don't have to listen to hours of those "fleebagers" drone on in debate. We saw it in the assembly already; The Libs lose their stage; A valuable Civics lesson is taught to the Nation,"playing by and within the rules is ALWAYS a better way."; Wisconsin can move on.
Perhaps I'm picking a nit, but in the final paragraph, the author referes to parts of the law that do not need "Democratic support." None of it needs support; only participation. Apart from this, I do not understand why Wisconsin Republicans, especially the more conservative ones, do not look at this as an enormous opportunity. As long as the Dems stay away, ten conservative Republicans can pass anything they want that is not fiscal by the strict standards of Wisconsin law. Conservative Republican Wisconsin state Senators (are there any?) could pass tort reform, require abortion clinics to show 3D ultrasounds to all patients, define marriage traditionally. (Come up with your own bills-to-drive-Democrats-insane, it's a fun party game.) That would brind the prodigal Senators home in a hurry.
"As long as the Dems stay away, ten conservative Republicans can pass anything they want that is not fiscal . . . tort reform, abortion clinics [required] to show 3D ultrasounds to all patients, define marriage traditionally."
What would really drive the liberals all nuts would be to mandate high school seniors read Sarah Palin's latest book and pass a test on comprehension in order to graduate.
"Because collective-bargaining rights and the same statutory chapter (111) are at the heart of proposed Senate Bill 11, its most controversial portions are not fiscal."
...um, doesn't this suggest the truth of the protesters' point that these portions are, ahem, "not fiscal"? And suggest the falsity of Walker's claim that they are merely fiscal?
I'm genuinely confused about why Walker keeps rejecting this option and maintaining, against logic and the evidence Mr. Lindgren cites, that the collective-bargaining provisions are in fact fiscal and require the Dems to be present. Does anyone have any idea? As Lindgren points out, it can't be for fear of GOP defections, and it doesn't make sense for it to be for fear of judicial reversal given the caselaw Lindgren cites.
Adding to the above quibbles: I think we should be careful about buying into the unions' manipulative language about collective-bargaining "rights."
It's not a right. It's an arbitrary mechanism developed for an arbitrary situation involving an arbitrarily defined group. There's nothing absolute or morally essential about it.
Lindgren is not a sloppy writer, so he may have some well-reasoned counterargument to this point. Even then, I would advise against the word's use if only for strategic reasons.
(And what's a guy got to do to get starred commenting access around this joint?!)
I'd start by splitting out just the budget provision where the state would no longer collect dues for the unions. A reasonably competent politician could argue that this provision greatly increases the power of individual workers. How would it sound to reasonable average voters when the unions start yelling about the state failing to take dues money from workers paychecks?
Oh man. You right-wingers are so stuck in your bubble it's amazing.
Instead of asking "Why don't they split it out of the Budget and pass it with a lower quorum?" ask "Why did they put it in the Budget bill in the first place?"
BECAUSE IT WOULD NEVER PASS AS A STAND-ALONE BILL.
The Budget package is COVER for the collective bargaining provisions. Why would the Republicans want to enact only the most unpopular provision?
The right to collectively bargain is recognized through international human rights conventions. Article 23 of the Universal Declaration of Human Rights identifies the ability to organize trade unions as a fundamental human right. Item 2(a) of the International Labour Organization's Declaration on Fundamental Principles and Rights at Work defines the "freedom of association and the effective recognition of the right to collective bargaining" as an essential right of workers.
Another great thing about passing the legislation while the dem senators are awol is that more of the Republican senators can vote against these bills if that works best in their district.
The interviewing of Walker has been frustrating because it is not producing much useful information.
Lindgren's advice not to be punitive to the awol Dems was pretty weak. The Wisconsin constitution says it is the duty of the senate to define the punishment for senators who have broken the rules. The Wisconsin constitution says that senators have to show up for work. To not punish the awol Dems is to bless this violation of the Wisconsin constitution as an acceptable political trick.
ARegularGuy
"The right to collectively bargain is recognized through international human rights conventions."
Hilarious (sounds like a bunch of lefty propaganda).
Since the US Constitution does not define a right to collectively bargain, why shouldn't the good people of Wisconsin (through their elected representatives and senators and governor) be free to define unions rights as they see fit?
Lefties want to keep workers being forced into unions against their will so they can force those workers to pay dues against their will and contribute to the Democrat party against their will. This money is then used by the unions to corrupt the government and induce governing Dems to pay union workers better total compensation and benefits packages than they deserve because the Dems know they will get their kickback. This is bankrupting the states.
Another critical problem with unionized state workers is that it politicizes these state workers so they give preferential treat to lefties and discriminate against Republicans. This outrageous and must be stopped. The only solution is to ban government unions.
This argument, or something very similar, was discussed last week. Presumably, Walker and his staff know about their various options. So why haven't they acted. The hypothesis is that he doesn't have the votes. If he had the votes he would do it.
Do you doubt his resolve? I don't.
Do you think he does not understand all his options? He has access to the best legal minds in the Republican Party.
He knows his options. He has the resolve. He doesn't have the votes.
And if you believe Rasmussen, time is not on Walker's side. His popularity is dropping, not increasing.
Walker said he would pass it all together as a package...and it will get done. He does not want to split it apart. What you see is what you get with him. Honest and straight up.
I wonder if the reason is simply that to split the bills they would have to go back and pass the shorter bill in the House, and could not pass such a bill with the Democrats present.
