Friday, March 11, 2011

Tracking the Budget Repair Bill

I've been down with a minor back injury for the past two days although I did crawl out of bed to talk to Channel 12 about the events of the last two days.

There is, it seems to me, a great irony about all of this. Democrats have referred to Republicans as "thugs" and "political criminals" when, in fact, the clear violation of a legal duty was the refusal of the fourteen Senate Democrats to comply with their body's own rules and the call that they return - a call that is plainly authorized by our state's constitution. If there are any "thugs" in the picture, the likely candidates are protesters who have done their best to disrupt the functioning of the legislature.

But what about the passage of a stripped down version of the bill? There are two areas of potential concern. One procedural and the other substantive. Let's start with process? Did the legislature violate the open meetings law. Sec. 19.84(3) of the state statutes requires 24 hours notice of the meeting of a governmental body "unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting."

If the statute is applicable, the question becomes what good cause justified less than 24 hours notice? Assuming that good cause can be shown, was two hours notice given. There are some claims that the notice given around 4:09 and that the meeting began at 6:04. If that's so (it seems unclear when notice was posted) and if the statute applies, what is the impact of being five minutes late? Would a court really invalidate legislation for that reason? Apart from that, how did Senate Republicans manage to even create an issue. Couldn't the have scheduled the meeting for, say, 6:15? The matter seems to have been slopply handled but stating the counterfactual itself demonstrates the de minimis nature of any violation (assuming good cause to depart from twenty four notice can be shown.)

But it grows more complicated because the Republicans claim that sec. 19.84(3) does not apply at all. Sec. 19.87(3) of the statutes says that "[n]o provision of this subchapter [the open meeting law] which conflicts with a rule of the senate or assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule." Both the Senate and Assembly rules provide that, when in special session, the only notice required is posting on the legislative bulletin board without specification of a minimum notice period.

But we're still not done. Was the joint committee meeting itself proper? Joint Rule 3 of the legislature provides for such a meeting in the event that the Senate and Assembly disagree. The Democrats say that means that the Senate has to have voted on the bill. The Republicans say that it applies only when there is, in fact, a disagreement. No vote is required.

In any event, I can't see any of this resulting in invalidation since it requires an interpretation of the legislature's own rules. On close questions, in particular, I don't see a court upsetting the legislature's determination of what they require. This is particularly so in the event of an open meetings violation which, by law, renders an action not void but voidable. Sec. 19.97(3) says that a court should void an affectined action only it "the public interest in the enforcement of this subchapter outweighs any public interest which there may be in sustaining the validity of the action taken." I don't see much chance of that.

On the substance, the question is whether the legislature really stripped the bill of its fiscal provisions. A fiscal bill is constitutionally defined as one that "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 ...." I don't think that limiting the authority of the state and local units of government to collectively bargain comes within that definition. But there is more than that in the bill that was passed. Much of it has to do with moving money around, but it is not clear that any of it is "fiscal" in this specialized use of the term. But I can't claim to have fully analyzed it.

Apart from the law, what strikes me as odd is the claim that the existence of these issues amounts to some kind of assault on democracy. This bill has been extensively debated and there is a level of public awareness concerning its terms that is unique. You may think it a bad bill but it is a product of democracy passed in the face of lawless behavior by the absconding Senators and, to a lesser extent, the childish antics of the protesters. If you're looking for an assault on the rule of law, look elsewhere.


Anonymous said...

Thanks for the analysis. Get better, Rick.

A further question of legality. WisPolitics is reporting that Secretary of State Doug La Follette isn't planning on publishing what is now Act 10 until March 25, claiming that neither Saturdays nor Sundays count in the 10-day requirement to publish the act in the official state paper (Statute Chapter 14.38(10)(c)). While there are multiple references to "business days" and "working days" in the statutes (which specifically exclude Saturdays and Sundays, as well as various holidays), the phrase does not appear in that section. Further, there is no mention in the state Constitution of "working days", "business days", or any definition of day that excludes Saturdays.

Meanwhile, the Legislative Reference Bureau claims that it does not count Sundays. There is a single statutory mention of a Sunday exemption (relating to when county constitutional officers must keep normal business hours), and two mentions of Sunday exemptions in the state Constitution, both relating to the amount of time a governor has to veto a bill. I suspect that Constitutional mention is the basis for the LRB opinion.

What I do not know, or really have the ability to research as I'm not a lawyer, is whether there are court decisions that allow further weekend exemptions to the definition of an otherwise-unmodified "day".

Anonymous said...

Found the answer - La Follette can delay the full 2 weeks because "working days" is part of the requirement to publish acts in section 35.095.

I wish David King had made it a clean sweep.

Marc Eisen said...

My former Isthmus colleague Bill Lueders got to the nub of the issue in a lot fewer words when he wrote that the meeting was hastily called "because the people convening it felt they needed an element of surprise to prevail -- making it precisely the sort of action the state's Open Meetings Law was intended to preclude."

Bill is president of the Wisconsin Freedom of Information Council, and he points out that whether or not the session met technical muster, it clearly violates the spirit and traditions of Wisconsin's Open Meetings Law.

As I understand it (correct me if I'm wrong), the language of the bill hadn't even been posted online when the committee met and hurriedly voted.

I suspect that a lot of people will find this acceptable, because they believe the Democrats played dirty, and that meant they could play even dirtier.

What only matters, of course, is winning.

George Mitchell said...




Presumably, R's knew that if they provided 24 hrs. notice there would be another Capitol riot and they concluded that less notice was justified. Good conclusion.

The "language of the bill" had not been posted online? The bill, less fiscal items, was and is widely understood.

In the context of vandalism to the Capitol and the intimidation and harassment tactics of opponents, the actions are quite defensible.

Fortunately, the possible recalls and certain general election in 2012 will provide voters a chance to weigh in. I can abide by the results.

smithwords said...

There's so much nuance in that issue of "what only matters is winning." Number 1: to everyone's surprise, or at least, to Democrat's surprise, is the realization that Republicans have figured out this is the way the game is played...(maybe this is the real revolution here in Wisconsin...hell, I have to say I'm surprised myself). Number 2: It's NOT just winning, it's winning RIGHT! The plain fact of the matter is, at this point of time, the Republicans are on the right side of these particular issues; we know it, and if liberals are truly honest, they know it, and the majority of Wisconsin voters know it. Marc, you and your colleague Bill can set any number of angels on the head of a pin to matters little...we are on the right side of limiting collective bargaining privileges for public union employees.

Dad29 said...

because the people convening it felt they needed an element of surprise to prevail


The 'surprise' was necessary for the safety/security of the legislators and staffers. To "prevail", all the (R) party needed was exactly what they HAD: majority control.

Lueders fell off the 'reliable source' wagon with that analysis.

Marc Eisen said...

Mr. Smith believes you got to break a few eggs to make an omelet; okay, I know where he's coming from.

I would appreciate it if "Dad29" (whoever he or she is) would point out where candidate Walker talked frankly about the necessity of busting the power of government unions.

Call me starry eyed, but I happen to think that the precepts of the Open Meetings Law are absolutely central to Wisconsin democracy.

The exercise of power politics is always self-justifying, ala George Mitchell's fanciful scenario.

Of course if the losers complain, the lawyers can always be called in to tidy up.

Anonymous said...

Hey. Does anybody know if this just-passed bill includes that no-bid contract to sell state-owned power plants?

And what's the justification for that, again? Reward Walker's political supporters?

Anonymous said...

"Presumably, R's knew that if they provided 24 hrs. notice there would be another Capitol riot and they concluded that less notice was justified. Good conclusion."

Quite the cheap shot from George Mitchell. There have been no "riots" in Madison over the last three weeks.

George knows what a real "riot in Madison" looks like as they occured there around the time he was dropping out of UW.

Dad29 said...

I would appreciate it if "Dad29" (whoever he or she is) would point out where candidate Walker talked frankly about the necessity of busting the power of government unions

That's relevant because....?

8 years of his governance in Mke County should have provided a clear hint, even for the professionally obtuse.

Of course, there's the other option: break 10,000 PEU families due to joblessness.

Maybe that's what you prefer?

Marc Eisen said...

Mr. Dad29: It's relevant because he had no mandate to bust the unions.

To his credit, Scott Walker was forthrightly opposed to high-speed rail. The only people who were surprised when he shut down the project were the pro-rail newspaper editorial boards that foolishly endorsed him.

He ran on it. He won. He did it. That's why we have elections.

In contrast, Scott Walker did not campaign, pledging to break the public employee unions.

Nor did he threaten it when he won, or when he asked the Legislature to not approve the contracts in December, or when he was sworn in, or when gave the State of the State address.

Scott Walker had no mandate to kill the unions.

Dad29 said...

Scott Walker had no mandate to kill the unions

And The Doylet did not have a mandate to steal $200 million from doctors, nor to steal ~$1Bn from the highway "trust" fund.

So what?

The State and its subdivisions are in a fiscal crisis and you say that Walker woulda/shoulda/coulda predicted how he would resolve the crisis?

GWBush didn't campaign on taking out AlQuaeda.

Wilson didn't campaign on sending troops into WWI.

So what?

What DOES count is votes. The (R) Party had a mandate to stop the thievery, chicanery, lying, and fraud which The Doylet and his cabal rammed through over the last 8 years.

Part One is complete.

Marc Eisen said...

Mr. Dad29: Call me old fashioned, but I think if candidates have big changes in mind they ought to tell the voters.

I doubt that we would see such turmoil today if Scott Walker had been upfront about his plans for unions last fall,

Or, who knows, perhaps he wouldn't have been elected.

Also, unless Gov. Doyle was convicted of a criminal offense, you ought not use the word "steal".

George Mitchell said...


Scott Walker spent the last several years as County Exec being told NO over and over by unions. He knows exactly the kind of savings that are available to address the state and local budget deficits and to minimize the adverse impact on taxpayers and employees. See the 3-14 story on the WEAC union insurance trust as one of many examples that will begin to appear in the media. It will become increasingly clear to voters that recalling a Walker supporter, or defeating one in 2012, could mean higher local property taxes and/or layoffs. You can moan 'til the cows come home about whether Walker campaigned on such changes, but they should not surprise anyone familiar with his record as County Executive. And in campaign terms it is a non-issue....what are Ds going to say? Walker never told us we could save tens of millions by dumping the WEAC insurance company?

smithwords said...

I have a comparison for you on the "he never campaigned on that issue" issue, and it's a pretty big one: Did Obama really ever campaign on the fact that he would completely transform the US healthcare market, including legislating a public option? It seems there's some debate as to whether he did that or not. He's even unclear on the issue. Regardless, the case could be made that he didn't campaign on such a revolutionary change to US healthcare. So? I agree with Dad and George...Walker certainly had a mandate to deal with government excesses; seems that included public union excesses. Omelet anyone? By the way, I firmly believe that union members themselves will ultimately benefit from these changes...that's the great unheard story that needs to be heard.

Dad29 said...

Did Obama really ever campaign on the fact that he would completely transform the US healthcare market, including legislating a public option?

By the way, I recall hearing "Closing Gitmo" and "Leaving Afghanistan by mid-2009".

Musta been my imagination.