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.
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.