Playing by the Rules in Wisconsin
March 10, 2011 8 Comments
Our nationally-riveting Wisconsin political drama yields fresh fascination. The Wisconsin senate has passed deep restrictions on public-sector union collective bargaining, despite the absence of a quorum necessary to vote on appropriations bills. They achieved that vote — successfully prevented by the 14 senate Democrats who fled the state and prevented the requisite quorum to vote on appropriation bills — by voting on the collective bargaining provisions separately. These provisions do not constitute an “appropriations” bill, and thus do not require the quorum fairly stymied by the Democrats.
An old Patton Boggs colleague, who was a wizard of congressional rules, said, “you take the content of the bill, and I’ll take the rules, and I’ll win every time.” There’s a characteristically DC-turbocharged cynicism and arrogance in that pronouncement. But the essential point is illuminating, The legislative process in a democracy is cabined by multiple rules, which can often, ironically, yield anti-majoritarian results. The best-known example is the Senate filibuster rule, the routinely threatened deployment of which has come to require 60 votes to pass a measure in the Senate (60 votes being the “supermajority” number required to shut down the filibuster and force an ordinary majority vote on the measure at issue).
In Wisconsin, both sides have played by the rules, as bewildering as those rules might seem to outside observers. The Democrats were perfectly within their rights to prevent a quorum on the governor’s appropriations bill, even though to do so entailed the seemingly bizarre stratagem of fleeing the state. Lawmakers within the state, who simply refuse to show up for work, can be compelled to do so by state authorities — unless they’re outside the state, in which case they’re beyond the jurisdiction of their state’s authorities. So they fairly fled.
They did so fully mindful that they were stalling the work voters had elected them to do. They did so mindful that they were preventing an ordinary vote that would have resulted in a fair majority result they did not want. They did so mindful that voters might turn against them for their anti-majoritarian tactic. But they did so fairly and fully within the rules. The optics to me look bad for the Democrats — but on balance, I’d say their political calculation was a shrewd one.
The rule at issue requires at least 20 members of the 33-member Wisconsin senate to be present for an appropriations bill. There are 19 Republicans and 14 Democrats in the Wisconsin senate. (Isn’t it fascinating how democracies comprising many millions of people can come down to one vote — or one absent senator preventing a vote?)
The controversial collective bargaining restrictions were part of Governor Walker’s much broader budget repair bill, designed to address Wisconsin’s severe fiscal crisis — an appropriations bill. But the collective bargaining restrictions themselves were not “appropriations.” So Republicans made one bill two bills. They separated out the collective bargaining restrictions and voted on them, which they could do despite Democratic senators’ absence, because no supermajority quorum requirement applied to the collective bargaining restrictions. Also fair and fully within the rules — and, in fact, more consistent with majority rule.
Interestingly, and ironically, some Democrats are screaming “foul.” “It’s totally shameful,” says Wisconsin Democratic senator Julie Lassa. “It’s a total disrespect to the thousands of people who voiced their opposition to this bill. To pass it in the dead of night and violate the open meetings law, then not even having the bill before them before they voted … it’s just totally disrespectful to the people of the state of Wisconsin and for the democratic process.”
Really? What part of the “democratic process” was violated by an actual majority of Wisconsin senators voting in favor of a bill? And what frankly twisted concept of the “democratic process” favors preventing a straightforward majority vote — or any vote at all — but excoriates a straightforward majority vote?
The “open meetings law”? Wisconsin’s Senate Chief Clerk, Rob Marchant, who offers non-partisan parliamentary and legal advice to the chamber, said that the vote was above board. “[T]he notice appears to have satisfied the requirements of the rules and statutes.” But let’s just say it didn’t. The only “violation” would then be sufficiency of notice. Then “sufficient notice” could be given, and we have the same result.
I don’t buy either screech. Democrats and Republicans both played by the rules, and collective bargaining restrictions — on public-sector unions — passed the Wisconsin senate. That is a good result in my view. But the political process persists, likely vociferously. I cannot predict whether what happens next favors Democrats or Republicans in Wisconsin. It will be a fascinating drama.
As we watch, from our respective camps, let’s at least credit the Wisconsin players from both parties with playing by the rules and accepting the risk of political consequence. Both sides are doing what they view as the right thing to do for Wisconsin, and Wisconsin voters will ultimately choose winners and losers. That is democratically correct.