Wisconsin Doesn’t Need 3/5th Quorum to Pass Collective Bargaining Legislation?

What if the Wisconsin senate did not need the 3/5 quorum so loudly touted as essential to pass all of Governor Scott Walker’s budget repair bill? What if there were specific portions of state law that excluded collective bargaining as needing a quorum? What if there are documents confirming that collective bargaining is not covered by a “fiscal statute?”

Wisconsin Capitol Building

The Volokh Conspiracy is in possession of the Wisconsin “constitutional three-fifths quorum requirement “and says this (see links to documents):

It applies only to particular kinds of fiscal bills, not to all bills that merely have a fiscal impact. Further, it has been interpreted extremely narrowly in the past. Indeed, there is a 1971 Opinion of the Wisconsin Attorney General that determined that a bill changing collective bargaining rights was not a fiscal statute under the constitution and did not require a three-fifths quorum. Thus the Republican senators do not need the presence of the Democrats to pass the most controversial parts of Wisconsin Senate Bill 11.

James Lingren, Professor of Law at Northwestern University, and the hand behind The Volkokh Conspiracy, posted an op-ed at National Review. Here’s a snippet:

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

Assuming Lindgren’s analysis is correct, (please read it all here – there is much more), we have to ask why Wisconsin Republicans are not acting on this possiblity/reality?

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.

If you are obsessing about the outcome of collective bargaining in Wisconsin, you’ll want to know there is a rumor that four of Governor Scott Walker’s GOPers may be going wobbly. If two defect, the GOP has lost the mission. If you are a Wisconsin-e-an, ask your state senator about not needing a 3/5ths quorum to vote on collective bargaining, and please, come back and let me know what you are told.

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