Wisconsin Senate Does Not Need a 3/5ths Quorum to Pass Much of the Budget Bill

The Volokh Conspiracy ^ | 3-3-11 | Jim Lindgren

[bigbob]

Article VII, §8 of the Wisconsin Constitution requires a three-fifths quorum only for statutes that are fiscal, that is, statutes that actually appropriate money, impose taxes, create a debt, or release a claim owed to the state. Even then, these categories have consistently been interpreted in the most limited form conceivable.

The Wisconsin attorney general in 1971 gave a formal opinion to the legislature that a bill that changed collective bargaining rights substantially was not fiscal in nature and was not subject to the three-fifths super quorum provision. Because collective bargaining rights and that very statutory chapter (ch. 111) are at the heart of the proposed Senate Bill 11, the most controversial portions of the bill could be passed constitutionally with just a simple majority of elected members present, without a three-fifths quorum.

Though some provisions in Senate Bill 11 are clearly fiscal — e.g., increasing appropriations for needy families, health care, and corrections — much of the bill is not fiscal. Even provisions that observers might reasonably assume to be fiscal are probably not fiscal under Wisconsin law, such as the rule that in the future employers can agree to pay no more than 88% of health care costs.

Because much of Senate Bill 11 is not subject to the three-fifths quorum, these portions could be separated from the rest of the bill and passed by majority vote in the presence of a simple majority of the elected Senators. With Republicans holding 19 of the Wisconsin Senate’s 33 seats, Republicans thus constitute a quorum to pass much of Senate Bill 11 without any Democratic Senators present or voting. The rest of the bill would have to await the return of the wandering Senators and the return of a three-fifths quorum.

[bigbob]

Edited for length - link to the entire unabridged essay at the link.

This writer maintains that the WI constitutional requirement for a 3/5 (20 vote) superquorum has been interpreted extremely narrowly in the past, thus Republican senators do not need the presence of the Democrats to pass the most controversial parts of Wisconsin Senate Bill 11.

Thoughts? Would the R's have the guts tot take this approach?

[Mygirlsmom]

Problem is...the Assembly already passed the bill so the Senate has to pass on the identical bill or it gets shipped back to Assembly.

They stalled for 60 hours the last time......I think they will have a strategy in place to halt the process.

[bigbob]

Perhaps not. In his OpEd on this topic in NRO today, he writes:

“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.”

In other words, they’d pass the entire bill as-is, knowing it would be challenged in court and the fiscal parts thrown out, but the non-fiscal parts would be “severed” out.

He explains his theory in detail at:
http://www.nationalreview.com/articles/261182/new-strategy-wisconsin-james-lindgren

[Buckeye McFrog]

Mass layoff of state employees who then stop receiving a paycheck. That’s what will break the deadlock.

[sbMKE]

The vote to certify/decertify the unions involves postage and personnel costs - hence, the the fiscal aspect.

[Terry Mross]

Republicans have a tendency to look like the Keystone Kops. They can’t seem to think ahead from the assembly to the senate.

[FromLori]

GOP might not need Democrats to pass controversial legislation

I posted this a couple of weeks ago in another thread it says much the same.

[Mygirlsmom]

Republicans have a tendency to look like the Keystone Kops. They can’t seem to think ahead from the assembly to the senate.

Probably because they can't comprehend how any rational elected representative would behave like untamed animals. In an adult world, they should not have to plan for those circumstances.

I remember my kids having similar reactions when witnessing unruly behavior from other kids. Even at the ripe old age of three, they had the intelligence and discipline to know the difference between what a person CAN do and what they SHOULD do, but it concerned them that the little beasts were unable to hold themselves to the same standard.

[az_gila]

The vote to certify/decertify the unions involves postage and personnel costs - hence, the the fiscal aspect.

---

Have a private funding operation, collect donations so no cost and fiscal impact to the state.

I'm sure enough dollars can be collected...:^)

[PIF]

Walker has said there are numerous options. However, he does not want to push an aspect which will be taken to court later. Although it may come to that soon.