Tracking the budget repair bill: Will it stand up in court?

Conservative legal expert Esenberg walks through last Thursday's vote and how likely it is to withstand a legal challenge. He thinks it will.
March 14th, 2011 |
Pin It

Rep. Peter Barca trying to speak during the committee meeting. Screen shot, Wisconsin Eye

[Regarding last Thursday's passage of the modified budget repair bill] 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 was given around 4:09 and that the meeting began at 6:04. If that’s so (it seems unclear when said 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 they have scheduled the meeting for, say, 6:15? The matter seems to have been sloppily 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 meetings 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.

Scott Walker signs the amended bill into law.

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 affected action only if “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.

Conservative commentator Rick Esenberg is a member of the faculty of Marquette University Law School. His research interests relate to law and religion, election law and the ways in which the law impairs and empowers civil society. He blogs regularly at Shark and Shepherd. This piece originally appeared on March 11 in his blog and is used here with permission.

Related Stories

14 Responses to “Tracking the budget repair bill: Will it stand up in court?”

  1. cage says:

    I love how the the right to gather and peacefully protest is a “childish antic”. The fedreal unions may have disappeared under carter, but the right to gather & collectively bargain for wages, safer workplaces, decent hours, etc. has been federal law since the Wagner Act of 1935, and those particular provisions were not altered as unions bills were enacted and ammended in the following decades.YOu know what else was in he Wagner Act? Another provisions making it illegal to fire any worker who chose t participate in a union, a union walk out or meeting. The bill is unconstitutional period. I love how the conservatives on the board are arguing rhetoric and irrationality when the rest of us are trying to preserve an American institution and debate logically. I’m sure this comment will have some irrational response that has nothing to do with the topic at hand, so I’m going to prepare some irrational counter-arguments.

    [Reply]

  2. The Mitten of Democracy says:

    Quorum rules have been used by the minority party in dire circumstances for hundreds of years. It is 100% part of our democratic process for the minority party to leave in order to stop a vote. Abraham Lincoln jumped out of a window to avoid a quorum in the legislature!

    So what’s dire circumstances? Stripping a group of people of their basic human rights. The UN recognizes unions as a basic human right, as does the Catholic church and the last 2 popes, as did even Ronald Reagan. And let’s not even get started on the fact that the state employee unions have given all the necessary concessions, and that there is no budget crisis in the first place ($121m budget surplus when Walker came in, he gave $140m to rich special interests, and he’s asking state workers to pay $137m to fill the gap). If you don’t understand that by now, nothing I can show you will change your mind.

    As for the legality of the Republicans’ actions, I don’t have anything to say about it because I don’t know enough. And unfortunately, this poorly written article doesn’t help. Its emotionally charged rhetoric has derailed any meaningful discussion on the topic, and I can’t take as unbiased fact the opinion of anyone who openly calls people who are peacefully protesting for safe working conditions and a seat at the bargaining table “thugs” and “children.”

    [Reply]

    Aaron Reply:

    FYI-
    The mitten is for pulled over your hand, not to be pulled over your head and eyes. Simply put the factual inaccuracies that is in your rant hardly warrants a response but for fun I’ll give a few pokes. However before I do to steal a quote from good ol’ Ab since you mentioned him above, “it is better to be thought a fool than to open your mouth and remove all doubt.” Think about that next time.

    Now as to basic human rights- only 30 states now 29 without WI agreed to collective bargaining, and the federal gov’t removed it for their employees under Jimmy Carter so I guess we dropped the ball with almost half of the states and the fed. not to UN standards!!! Oh, No!!! Reagan, really? (history note google air traffic controllers) -duh. Now don’t even start about the church. I doubt you had the foresight to check with any of the Catholic schools in the area to see if they have union or non union teachers before writing what can only be described as a satirical piece. If it makes you feel better I did laugh when reading it!

    I certainly doubt you will understand but the 140m of tax incentives for the “rich” doesn’t apply to this years budget and since that is simple fact and further analysis of the bill would require the ability to string together enough information to form a substantive thought, combined with that I don’t feel I can convert the information into monosyllabic terms that you would understand. To continue on is nearly pointless. Wow that was a long thought, soak it in, or just ignore it if you got lost.
    The closest thing you wrote to the truth came in your last paragraph when referring to your lack of knowledge, I would however limit this to the legal part of the issue.

    We can only expect your response to be about the Koch brothers and how they contributed “big” money to Walker all the while ignoring the elephant in the room (special interests…union dollars injected into races) Lets do a comparison before you respond. One part of the comparison I’ll let you do the other. Koch contributed 43k to Walker campaign total of 9mil = .4% (not a typo) Do the math, not even half of one percent… now I wonder how much just the teachers union alone contributed to Tommy. Would you dare bet me it is less than a half a percent? I would bet that you lack the courage or conviction to check for yourself. I do agree the terms “thugs” and “children” don’t capture the real spirit like drones and sheeple. Baaaaah, Baaaah, go on bleating all the way to the KoolAid stand for a refill.

    [Reply]

    Ellen C. Warren Reply:

    Now I get how this works! The replies are from whomever chooses to reply! There are, quite obviously, no editors involved. Aaron, you either need to slow down on the keyboard or get yourself to a remedial grammar course.

    [Reply]

    Aaron Reply:

    Ellen,
    That is rich. I’ll tell you what, you continue with a hyper-focus on the grammatical nuances of the replies instead of the substance contained within. Hard to believe you could look down your nose long enough to type a response. Take my suggestion.. next time you have writers block in this situation, head to the teachers lot and regurgitate bumper sticker slogans like any good liberal would do. Just cut and paste, spell check, watch the grammer of course, don’t forget to run it past an editor, and claim it as an original thought.

  3. Ellen C. Warren says:

    Mr. Esenberg’s inclusion of the statement, “But I can’t claim to have fully analyzed it.” speaks volumes to me, and hopefully others who make the mistake of reading this. It also causes me to question the organization that would print it. A wanna-be prophetic pundit exposes his bias. That’s about all I got out of this. This example of very irresponsible journalism, not to mention the vile, patronizing tone of Seth (whoever the heck he is?)(do you pay him, Ms. Willow?) makes me wonder if I’m best off reading this site’s offerings only in terms of: Know Thy Enemy.

    [Reply]

  4. Eugene says:

    Now Seth, you seem to be upset. Would you like a cookie or a juicebox?

    [Reply]

  5. Dan says:

    @DJ Budgets usually go through quickly, especially if one party controls both houses, and generally nobody pays much attention. They should, but there is no requirement that they do so.

    The contents of the bill actually were known days in advance, and warnings were going out to especially affected constituencies before the senators took off. It was entirely possible for them and others in the Assembly to have made a stand pre-emptively in the press and to have called people to the capitol to press for a slower and more deliberative process than usual.

    If lack of preparedness and organization is the reason why this did not happen, then the goal was achieved by running away within a few days. Holding out beyond that was an effort to buy negotiating power and political clout in ways entirely out of process that can’t be called democratic.

    Rick may be trying to suggest the protesters are “childish” like an angry child resorting to pure pressure tactics to get his way, as if true adults never do this. In fact this is simply what happens when process fails because enough people reject it in favor of more direct action, which may or may not be the right call in one’s own eyes, or to those looking back later in the future. What should be clear to all is how precarious this position is for the overall well-being of the state as procedure, decorum, collegiality, and general faith in the system have gone out the window.

    It looks like we will have senators and members of the assembly openly organizing and stumping for the recall of their colleagues now. I suppose we can look back and blame the Republicans’ attempt to impeach Bill Clinton as the beginning of this era when no serious Wall Street fraudsters go to jail, but political battles come to be fought in the courts and with end-around tactics. Further down the road, we may be less interested in partisan blame games if we’re reeling in the consequences of both parties doing their part to sink the ship.

    [Reply]

  6. Tihon says:

    Seth, there is a second part you are missing to majority rules, that of minority rights. By ignoring the rights of the minority the Republicans have invigorated those on the left. Does “majority rules” mean the federal government could pass any health care bill they pleased between ’08-’10?

    All that aside, if the Republicans wanted to do everything above board, why not give the required 24 hours notice? Why not even wait the full two hours from when the notice was posted to begin discussion?

    [Reply]

  7. urban dweller says:

    Pure, regurgitated Walker propaganda. Once and for all, the “Wisconsin 14″ left the state because “return” would have meant “consent.” If ONE Democratic Senator had set ONE foot into the chamber, the Republicans would have done one of their ‘auctioneer’ votes and the bill would’ve been on Walker’s desk before anyone could read it. Only a true Pollyanna or a truly dishonest right-wing apologist could attempt to cast doubt on this.

    [Reply]

  8. Steve Wetzel says:

    Regarding the latter, from the above analysis by Richard:

    “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.”

    The debate on the bill was due solely to the “absconding” Democratic Senators. Without their leaving the state this bill would have been passed immediately, and the general public would have had very little opportunity to wrap their collective heads around the irreparable damage the bill will do to the public sector, especially public education. Casting the public sector as scapegoats for the state and national deficit is so absolutely absurd, gross and wrong that it REQUIRES serious resistance: for now limited to Democratic Senators refusing to vote on the bill and masses of this great state’s citizens voicing their outrage through protest (Rick’s so-called “childish antics”).

    The bill may be “legal,” but it’s WRONG, unfair, unjust and cynical.

    We demand dignity. We demand free education for all. And we demand living wages and affordable health care. This country has never been richer, so with the right leadership, leadership that stands for the dignity of working people, we’ll have enough — enough money to have a decent, comfortable and safe living space; enough resources to live in a clean environment with good water and healthy land; enough for good, thorough health care for all; and enough time to enjoy life and our families. This is not utopia. This is what it looks like when corporations pay their taxes, and when the very wealthy are taxed at a rate similar to that of the 1950s and 1960s, when the wealth that WE create is distributed fairly. Right now our wealth is being funneled into the pockets of insanely wealthy owners, managers, bankers and traders of paper.

    The working class is waking up from several decades of an uneasy slumber. Our first objective, before breakfast, is to make the legislators who wrote and passed this bill pay a political price for their shortsighted and truly awful maneuverings.

    “This will not stand!”

    Rick, with all due respect, get on the right side of history.

    [Reply]

  9. 2fs says:

    Yeah, that first paragraph really establishes Esenberg as a sober, thoughtful commentator. God forbid that citizens act in their own interests by protesting a harmful bill. They should have stayed home and let their financial betters take care of them.

    [Reply]

  10. DJ Hostettler says:

    “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.”

    Of course, the only reason there was extensive debate was because of the fillibuster-esque stall tactic of the Democratic Senators. Otherwise it would have been rammed through the Senate with no debate or public awareness of what was in the bill at all. Hilarious. Interesting discussion of the legal issues, but the cracks about “childish” antics come off as pretty petulant, which is a pretty common tone from the right these days.

    [Reply]

    Seth Reply:

    DJ,
    Your pointless reply seems to make the writers ‘childish’ comments quite on target. Of course everyone knew what was in the bill, that’s why the unions began protesting and the Dem’s high tailed it down to Illinois which of coursed all happened BEFORE a vote was taken. If no one knew what was in the bill why would the 14 dem’s make shop in Illinois?? And why did the protestors begin protesting before the bill even made it to the assembly floor? It’s because people knew what was in the bill! Majority rules in a democracy and until the recalls take place, the majority will still rule. Now pick up your sign and head back to Madison, with the rest of the children.

    [Reply]

Leave a Reply