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.
Admittedly, some provisions of proposed Wisconsin Senate Bill 11 are clearly fiscal — e.g., increasing appropriations for needy families, health care, and corrections. Yet even provisions that observers might reasonably assume to be fiscal are probably not fiscal under Wisconsin law. For example, the rule that in the future employers can agree to pay no more than 88 percent of health-care costs is neither a tax nor an appropriation.
Given this history, there is a strategy that could get the state’s business done without the AWOL legislators. The Republicans could split the bill into three bills. The first bill should be as short as possible, containing only the most central collective-bargaining provisions. If passing this bill did not cause the walkout to collapse, a few days later, the Senate could pass a second bill, containing all the rest of the bill except those few provisions that increase appropriations, impose a tax, or incur a new debt. These would be provisions that are probably not fiscal, but whose constitutionality is less certain.
The third bill would essentially be the full original bill, including the appropriations and taxation provisions as well as the language of the other two bills. Passing this would require the return of at least one Democratic senator.
One practical advantage of this tripartite strategy is that, if the first bill passes, the errant Democratic senators may decide to return. After all, they would have failed at their main goal, protecting full bargaining rights for public unions. Once the senators return, a three-fifths quorum is achieved and the full bill can be passed. That should moot most constitutional challenges.
This strategy may raise other hurdles, depending on legislative rules and practices. A revote in the assembly as well as the senate would be necessary, either on new bills or on a reconciliation bill, but that vote could be taken with a simple majority. Also, in light of a recent Wisconsin supreme court decision, once the bill is split apart, additional language may be needed to clarify precisely which existing statutes are being modified by the new bills.
Why are the Wisconsin Republicans not already taking an approach similar to the one I outline here? First, even some Republican legislators may not realize how narrow is the class of “fiscal” statutes and how little of the budget bill fits into that category. The second reason can be inferred only by reading between the lines of the public statements of some of the senators. Sen. Jon Erpenbach, a Democrat, speculated that the Republicans might split off the main collective-bargaining provision, attach it to a non-fiscal bill, and pass it without the Democrats. But the Republican majority leader, Scott Fitzgerald, assured Ryan Foley of the AP that he will not attempt to pass any part of the budget-repair bill without the return of the Democrats. One cannot be sure, but this reluctance to sever the bill may be because some Republican senators are willing to vote for a budget bill overall but not for a bill that solely targets union bargaining rights.
Yet a handful of the 19 Republican senators could vote against such a bill, and it would still pass by a majority of votes if the Republicans were in the Capitol and the Democrats stayed in Illinois. Also, if voting on such a narrow bill targeting union rights did not appeal to some Republican senators, then a broad bill could be passed instead, including all but the few debt, taxation, and appropriation provisions. While that might be more politically palatable to reticent Republicans, it would somewhat raise the small probability that the statute would be held unconstitutional.
Making democracy work can be a difficult task, especially if some actors refuse to perform the duties with which they were entrusted by the people. Yet aggressive approaches that try to punish senators or protesters may backfire. The governor and the legislators who remain should do everything they can to get the business of the legislature done, with or without the Democrats. Responsible legislators should worry less about protesters and wayward senators and do their own jobs, passing the parts of the statute that don’t need Democratic support. This is not just a matter of strategy; it is a matter of principle. Instead of obsessing about who is not there and why one can’t do what one wants to do, those who remain should focus on the task at hand. If the Republicans believe that changes are needed to repair Wisconsin’s budget, they should enact most of those changes now.
— James Lindgren is a professor of law at Northwestern University. You can download his working paper “Super Quorums Under the Wisconsin Constitution” at SSRN.
editor’s note: This article has been amended since its initial posting.