The GOP’s WI Maneuver

Was the GOP's maneuver legit? And what's next?

Demonstrators converge once again on the Capitol after the state Senate abruptly voted Wednesday night to eliminate collective bargaining provisions. The Assembly is expected to vote on the issue Thursday.As James Joyner noted earlier today, the Wisconsin Republicans passed a modified version of Governor Scott Walker’s budget repair bill, despite the fact that most of the state senate’s Democratic caucus remains out of state.

The Wisconsin State Journal reports: Budget repair bill passes Senate, Thursday vote set in Assembly

In a surprise move late Wednesday, Senate Republicans used a series of parliamentary maneuvers to overcome a three-week stalemate with Democrats and pass an amended version of the governor’s controversial budget repair bill.

With a crowd of protesters chanting outside their chambers, Senators approved Gov. Scott Walker’s bill, which would strip most collective bargaining rights from public employees. The new bill removes fiscal elements of the proposal but still curbs collective bargaining and increases employee payments in pension and health benefits. The changes would amount to an approximate 8 percent pay cut for public workers.

It has always been the case that the GOP caucus alone was sufficient for a quorum on normal (i.e., “non fiscal”) legislation.  As such, the stripping of collective bargaining rights was always something that could have been done without the Democrats present–indeed, in some ways I am surprised they didn’t simply severe that issue from the budget repair bill and end the standoff in that fashion weeks ago.

The issue that remains is whether the bill as passed, which still alters the amount paid into pensions and for health insurance by teachers and other state employees, is “fiscal” or not:

After the session, Senate Republicans scattered, leaving no one to explain how they managed to pass components of the bill that seemed to have a fiscal impact, including changes in pensions and benefits, without the 20 senators needed to vote on fiscal matters. In a statement, Senate Majority Leader Scott Fitzgerald said he had consulted with the Legislature’s attorneys and “every item in tonight’s bill follows the letter of the law.”

No doubt the next move is going to be a court challenge, based on whether the elements of the bill that are clearly fiscal in nature in a general sense (i.e., have to do with spending) are, in fact “fiscal” under the relevant portion of  the WI constitution.  The appropriate segment that will be debated is following from Section VIII of that document:

Vote on fiscal bills; quorum. SECTION 8.  On the passage in either house of the legislature of any law which imposes, continues or renews a tax, or creates a debt or charge, or makes, continues or renews an appropriation of public or trust money, or releases, discharges or commutes a claim or demand of the state, the question shall be taken by yeas and nays, which shall be duly entered on the journal; and three−fifths of all the members elected to such house shall in all such cases be required to constitute a quorum therein.

The issue, it seems to me, is clearly going to revolve around whether the benefit provisions that passed falls under the above provision or if it doesn’t.  If the statement above from Senator Fitzgerald is accurate, it would seem that the legislature’s attorneys feel that it does not.  One expects that a court will eventually decide that question (not that I am currently aware of any suits having been filed).

Beyond any possible court battles, the real place this heads next is the political realm:  recalls and then 2012.  As all of that plays out we will get a better picture of what Walker has wrought:  either a boost to the GOP or a boost to the Democrats.  So, despite the rhetoric of both side, democratic governance will will out in this situation one way or another (which was the them of my last post on this topic).

In general, I agree with Ezra Klein’s assessment:

Assuming Scott Walker’s procedural maneuvering last night was legal — and, as I’ll explain in a moment, there are some questions about that — then it was also legitimate. Certainly as legitimate as the Democrats fleeing the state to deny the Republicans quorum. They did something procedurally extraordinary to stop the bill from being passed, and he did something procedurally extraordinary to get the bill passed.

It seems to me that the system worked. Democrats were able to slow the process down and convince both voters in Wisconsin and the national media that there was something beyond business as usual happening in Madison. National and state polls show they were successful in that effort. Walker and the Senate Republicans ignored the Democrats’ attempts at compromise and ignored the public turning against them and decided to pass the legislation anyway.

That was their prerogative, and now it’s up to the voters to decide whether to recall the eight Senate Republicans who are eligible for judgment this year, and to defeat Walker and the other Republicans in a year or two, when they become vulnerable to a recall election. That’s how representative democracy, for better or worse, works.

While more information may yet cause me to change my mind, I will simply say “indeed” and wait and see what happens next.

FILED UNDER: US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. James Joyner says:

    I presume there’s some history of litigation on the matter. Offhand, it strikes me that, while this has fiscal effects, it’s not a fiscal matter but a rule change. Almost anything a legislature does has some fiscal impact. But this doesn’t directly lead to any expenditures or taxes.

  2. matt says:

    There’s also the open business laws that pertain to this…

  3. @James:

    But this doesn’t directly lead to any expenditures or taxes.

    This may well be the appropriate interpretation, but it does require the changing of the law in regards to the collection of money from paychecks for the purpose of paying for an expenditure. Of course, the expenditure already existed, so that may not matter. The issue may end up being the change in the funding mechanism.

    If we were just talking about the collective bargaining issue, then clearly it wouldn’t be a ‘fiscal bill in the provision above.

  4. Axel Edgren says:

    I think, with some legal finagling, this could very well be legal.

    If you ask me, this was “fair and square” in the same way the democrats going to Illinois was “fair and square”. It’s nothing I am going to unequivocally state is wrong or right. It depends on the issue for me – I think there will never be a perfect rule system.

    Democracy worked – the democrats could stall for a while and expose Walker’s disgusting desire to punish unions for supporting the wrong party and politicians, and the republicans had enough votes to squeeze it through. This means that Walker has won the first round but has lost dearly in optics – he did not campaign on this and has rejected the majority’s desires. They wanted lowered benefits but wanted collective bargaining to stay.

    It’s time for a throat-ramming narrative. Walker and his glibertarian, anti-union bigot supporters must be made to regret this victory for the rest of their lives.

  5. Dustin says:

    I’m not versed in law by any means, but in some commentary I’ve read, it also sounds like there is likely a case, to be had in how they went about it.

    The Democrats claimed there was a violation of an open meetings law. The Republican counter to that is they were able to maneuver under a Senate rule, because this was technically a special session bill. Under that rule, at the Governor’s request, they could take up amendments that advance the purpose of the special session and only need to alert the legislative bulletin board, not the 24 hour open meetings notice. However, the Republicans have contested all along that this special session was called to pass fiscal legislation, but then passed an amendment stripping everything deemed fiscal from the bill under this Senate rule, and the question is if their amendments advanced the purpose of the special session, or changed the purpose of the special session.

  6. PD Shaw says:

    Well, this is the maneuver I suggested weeks ago at OTB. LINK

    I also noted at the time that the Wisconsin Constitution’s annotations state that “Past decisions of the court consistently tend to limit the definition of what is a fiscal law.”

  7. Tlaloc says:

    All in all I think the whole matter was an example of proper filibustering- i.e. a delay to business that requires significant effort and involves political risk so it isn’t done willy-nilly but is reserved for matters the minority consider critical. Similarly I have no fundamental problem with the maneuver the GOP used to end the stand off even though I hope they pay a political price for it and that their policies are repudiated by WI in the future.

    I do have to marvel at the sudden reversal where a bill claimed all along to be intensely financial (according to walker) is now completely no financial (according to…Walker). That’s some nice hypocrisy there, guv’ner.

  8. MKS says:

    For the future, the WI constitution probably should be amended in Section 8 to require a three-fifths majority vote from all legislators present, along with a public notification of such “fiscal bills” some fixed time period in advance of the floor debate and vote.

    Get rid of this quorum requirement.

    Such a change would allow sufficient time to mount public protests, retain the desired super-majority, and prevent legislators from further abandonment of their posts.

  9. Hmm, do you think recalling the Fleebagging Democrats ever occured to Young Mr. Klein as an option?

  10. PD Shaw says:

    It may be worth considering the provision in the Constitution that authorizes each house to “compel the attendance of absent members in such manner and under such penalties as each house may provide.”

    I tend to think that quorum-busting is a time-honored tradition in American politics, as is the tradition of using the force of the government to compel attendance.

  11. Another question, is this a GOP manuever, or a GOP response to a Democratic manuever?

    Perhaps it depends on whether maneuver carries linguistically negative connotations.

  12. @Charles:

    I would consider it a neutral term.

  13. Stan says:

    One of the interesting aspects of Governor Walker’s bill is that it provides a test of the idea that you get what you pay for. Wisconsin will now be paying a lot less for its public employees. In particular, teachers are going to lose between five and ten per cent of their compensation, along with their collective bargaining rights. Will this hurt Wisconsin when it comes to recruiting new teachers? I hope somebody studies this.

  14. sam says:

    Steve ask, “What’s next?”

    Legal challenges aside,

    Poll: Majorities support recall of two Wisconsin GOP senators

    Greg Sargent :

    Here’s something that could give some momentum to efforts to recall Wisconsin GOP state senators in the wake of last night’s end-run passage of Scott Walker’s measure to roll back public employee bargaining rights.

    I’ve got an advance look at some new polling by Survey USA that finds solid majorities in two GOP senate districts support the recall of their senators. The poll was paid for by MoveOn, which obviously has an ax to grind in this fight, but Survey USA is a respected non-partisan pollster that’s routinely cited by major news organizations.

    Here are the numbers, sent over by a MoveOn official, in the districts of GOP senators Dan Kapanke and Randy Hopper.

    When asked if they would vote for Hopper or someone else if a recall election were held right now, 54 percent said they’d vote for someone else, versus only 43 percent they’d vote for Hopper.

    In Kapanke’s district, the numbers were even worse: 57 percent said they’d vote for someone else, versus only 41 percent who said they’d vote for Kapanke.

    It gets even more interesting. The poll was taken yesterday, before last night’s events, and fifty-six percent of voters in Kapanke’s district, and 54% of voters in Hopper’s district, said if their Senator voted for Walker’s plan, it would make them more likely to vote for someone else. Last night, both Senators did vote for Walker’s rollback of bargaining rights.

  15. Steven Plunk says:

    Jeesh, it’s like another Commerce Clause. Everything has some fiscal impact so everything needs the larger quorum. Plain language has lost the war.

  16. ponce says:

    “As all of that plays out we will get a better picture of what Walker has wrought: either a boost to the GOP or a boost to the Democrats.”

    Scotty Walker was a D student in college before he dropped out to begin his lifelong government employment.

    If I were a Wisconsin Republican, I’d be worried…

  17. Tlaloc says:

    Hmm, do you think recalling the Fleebagging Democrats ever occured to Young Mr. Klein as an option?

    Isn’t it sort of funny how all those people who screamed themselves raw that the term “teabaggers” was inappropriate, childish, and vulgar way to characterize a tea party (that stupidly called itself “teabaggers” to begin with) are also the ones who use the term “fleebaggers”?

    I mean it kind of lets the cat out that you guys know just how stupid you were to choose that name in the first place, and exactly how deserving of mockery it was.

    I’m just sayin.

  18. tom p says:

    Plain language has lost the war.

    Steve, for once, you and I agree… A contract is a contract and both sides are bound by it. When one side can (for WHATEVER reason) (usually the more powerful side) declare a contract null and void….

    Geuss what follows? Today they come for us, do you really think that tomorrow they will be sated?

  19. Robert Levine says:

    There are several possible challenges to what happened last night. The open meetings law is one. I’m surprised no one is trying to challenge the joint committee action, based on the fact that the lone Democratic attendee was denied the ability – by the chair – to even see the text of what the committee was voting on. Then there’s the matter of the requirement that a joint committee is required to have one appointee from each party from each house. It’ll be interesting to see what the Republicans’ defense on that one is.

    Having said all that, it’s always a long shot to try to get a court to overrule, on procedural grounds, the actions of a legislature.

    Then there are the recalls. Personally I’d bet good money on the Senate flipping from R to D as a result of the recalls. Polling has identified two districts likely to flip, and that didn’t include my district, which includes some of the most liberal parts of MIlwaukee County, and which the incumbent won by a hair over 1000 votes in 2008, when she was still regarded as a moderate R.

  20. Liandro says:

    Tlaloc, fleebagger might be more tied to “carpetbagger” then “teabagger”, but I don’t really use either term so what do I know.

  21. Wiley Stoner says:

    The Tea Party never called itself teabaggers just those on the left well versed in the practice used that term to demean those who they disagree with. Is that childish? Not from your point of view T.

  22. Robert Levine says:

    It’s worth noting that this legislation has been handled by the Republicans, at every stage, in a way most likely to inflame the Democratic base here in Wisconsin. The fact that Walker tried to effectively eliminate collective bargaining in a budget repair bill is one; obviously what happened last night was an admission that it was not “budget repair” at all. The way the legislation passed the House originally was truly shocking; basically the Speaker unilaterally shut down debate while house members were still waiting in line to speak, opened the electronic voting system for 15 seconds, declared victory and adjourned the meeting before even all the Republicans had voted.

    The kinds of tricks that Walker discussed in the famous prank phone call were of the bad faith variety. Then there was the selective release of emails related to the “negotiations” over changes in the bill. And then this.

    Not to mention, of course, the fact that changes in public sector collective bargaining were not so much as mentioned once during Walker’s campaign. For good reason; he was fully aware that he wouldn’t get elected if the significant number of union members who vote Republican here knew that’s what they’d be getting.

    Elections have consequences. But it’s unwise for the winners to assume a mandate to put into place major changes in how the government operates that were never discussed during the campaign. What’s going to bite the Republicans hard in the next year is that sense of betrayal.

  23. tom p says:

    Steve P…. don’t boither, I am working tomorrow.

  24. tom p says:

    The Tea Party never called itself teabaggers just those on the left well versed in the practice

    Wiley, they DID call themselves teabaggers, and yes, certain people on the left, made NOTE of that fact. Rewrite history all you want, I will never forget Andrew Sullivan’s gleeful screams of triumph at their fau-pax … they are ensconced forever in the internets…

    You can run, but you can not hide.

  25. tom p says:

    Steve P; that was “bother”… have a good and peaceful evening.

  26. matt says:

    Wiley : NIce one you almost got me 😛

  27. andrew says:

    “Wiley, they DID call themselves teabaggers, and yes, certain people on the left, made NOTE of that fact.”

    If by “they” you mean a couple of people. But have your fun, if being a thug is fun for you.

  28. wr says:

    Ooh, I thought you were a thug when you joined with your fellow teachers to collectively bargain for wages and working conditions. Now I see you’re a thug if you say something mean about the tea party idiots. Man, do you ever stop weeping from the hurt?

  29. Tlaloc says:

    If by “they” you mean a couple of people. But have your fun, if being a thug is fun for you.

    Noticing when wingnuts do something stupid makes me a thug? I’ve been living the thug life since I was in grade school, biznatches!

    Yes, that is me laughing at you again, just one more example of my devilish thuggery in action.

  30. andrew says:

    “Ooh, I thought you were a thug when you joined with your fellow teachers to collectively bargain for wages and working conditions.”

    Nobody said that. Vandalism and death threats are thuggery, and unfortunately they are very common among people like you and far too often excused.

    “Now I see you’re a thug if you say something mean about the tea party idiots. Man, do you ever stop weeping from the hurt?”

    There’s no weeping. You’re a thug and you’re proud of it. I’m pointing it out and you’ve gladly accepted it.

  31. andrew says:

    “Noticing when wingnuts do something stupid makes me a thug?”

    You’re proving my point exactly, but there are no expectations for Leftists to act civilized in the first place so it’s not a surprise.

  32. Heh, I’m just given up and decided to play by your rules. If you don’t like, too damn bad.

  33. I’m, I’ve, whatever.

  34. wr says:

    Andrew, I’m concerned you might be too sensitive for the internet. Disney makes some nice computer games you might like.

  35. andrew says:

    “Andrew, I’m concerned you might be too sensitive for the internet. Disney makes some nice computer games you might like.”

    LOL. Could you be anymore lost?

  36. anjin-san says:

    > Vandalism and death threats are thuggery

    Yea, like the fake Fox video of the “union thug”.

    It’s true. There really is another sucker born every minute.

  37. Axel Edgren says:

    Death threats?

    Well, I don’t support it, but the only voice I can consider encouraging that kind of behavior right now is Walker and the Kochs.

    Atlas Mugged.

  38. If it doesn’t fit the narrative it doesn’t exist seems to be the mantra of those with their fingers in their ears going “LA LA LA LA LA LA…”