Legal Commentary

Wisconsin Senate Does Not Need a 3/5ths Quorum to Pass Much of the Budget Bill

By Jim Lindgren

I have a new paper up on SSRN?Super Quorums Under the Wisconsin Constitution?that examines the constitutional three-fifths quorum requirement in Wisconsin. 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.

Here is the abstract:

Super Quorums under the Wisconsin Constitution

This essay takes a brief and preliminary look at the remedies available to the Wisconsin Senate to enact its 2011 proposed budget legislation without Democratic senators who fled the state in February 2011. Article VII, §8 of the Wisconsin Constitution requires a three-fifths quorum only for statutes that are fiscal, that is, statutes that actually appropriate money, impose taxes, create a debt, or release a claim owed to the state. Even then, these categories have consistently been interpreted in the most limited form conceivable.

For example, in State v. Stitt (1983), the Wisconsin Supreme Court determined that the issuance of short-term debt was not debt under Article VIII of the constitution and thus was not ?fiscal? so as to trigger the three-fifths quorum and roll call requirements.

The Wisconsin attorney general in 1971 gave a formal opinion to the legislature that a bill that changed collective bargaining rights substantially was not fiscal in nature and was not subject to the three-fifths super quorum provision. Because collective bargaining rights and that very statutory chapter (ch. 111) are at the heart of the proposed Senate Bill 11, the most controversial portions of the bill could be passed constitutionally with just a simple majority of elected members present, without a three-fifths quorum.

Though some provisions in Senate Bill 11 are clearly fiscal ? e.g., increasing appropriations for needy families, health care, and corrections ? much of the bill is not fiscal. Even provisions that observers might reasonably assume to be fiscal are probably not fiscal under Wisconsin law, such as the rule that in the future employers can agree to pay no more than 88% of health care costs.

Because much of Senate Bill 11 is not subject to the three-fifths quorum, these portions could be separated from the rest of the bill and passed by majority vote in the presence of a simple majority of the elected Senators. With Republicans holding 19 of the Wisconsin Senate?s 33 seats, Republicans thus constitute a quorum to pass much of Senate Bill 11 without any Democratic Senators present or voting. The rest of the bill would have to await the return of the wandering Senators and the return of a three-fifths quorum.

Unless things change today, I will probably have an op-ed on this issue online within the next few hours.

UPDATE:

My op-ed on this issue is up at NRO.

Full post as published by The Volokh Conspiracy on March 03, 2011 (boomark / email).