The Wisconsin Senate has passed a budget bill with the “non-fiscal” provisions stripped out, just as I proposed last week in a manuscript on SSRN, a post at Volokh (“Wisconsin Senate Does Not Need a 3/5ths Quorum to Pass Much of the Budget Bill”), and an op-ed at National Review Online. Those curious about the legalities of the definition of “fiscal” should download my paper at SSRN.

A source in the legislature informed me last week that this approach had been proposed early on, but had been rejected as too politically risky for Republicans friendly to labor and too procedurally hard to go through both houses again, given the rancor in the assembly. From what I’ve heard from several sources (including one journalist), I’m fairly certain that it was NOT under active consideration when I floated my proposal last week.

I haven’t been able to find a copy on the bill online yet, but it appears that the senators took a fairly aggressive line in determining what was fiscal, treating even provisions that have financial impact as not fiscal. For example, the Bill passed by the Senate is reported to contain the requirement that contracts require public workers to pay at least 12%. In this, as my op-ed and article showed, they are being consistent with the very narrow definition of fiscal in the Wisconsin Constitution and the Joint Rules of the legislature.

Here is the conclusion of my SSRN paper, Super Quorums Under the Wisconsin Constitution:

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. Indeed, 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 most of the bill’s provisions demarcated “Fiscal changes” 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. Less clear of their constitutionality without a super quorum are provisions that legislate dollar amounts for workers to contribute for benefits over the next few months until contracts and decisions are made for future years. While these identified dollar amounts would seem to be “fiscal” in the ordinary sense of the word, they do not appear to qualify as either a tax or an appropriation. Thus, they are probably not fiscal as well.

A possible strategy thus presents itself to the Republicans. They could split the Senate Bill into two or three bills. The first bill could be as short as possible and would contain only the most central collective bargaining provisions. The second bill would contain all the rest of the bill except those few provisions that increase appropriations, impose a tax, or incur a new debt. This broad second bill would contain provisions that are probably not fiscal, but whose constitutionality was less certain.

Both of these bills could be passed with a simple majority quorum without any Democrats returning. Essentially, the Republicans would be proceeding to do the parts of their jobs that they can legally accomplish without going after or punishing the wandering senators for their absence. The third bill, containing the appropriations, taxation, and debt provisions, as well as repeating the language of the other two bills, would have to await the return of a quorum. All three bills should contain a separability clause should any part later be deemed unconstitutional by the Wisconsin Supreme Court.

One practical advantage of this tripartite strategy is that, if the first bill passes, the errant Democratic senators may decide to return. After all, they would have failed at their main goal, protecting full bargaining rights for public unions. Once the senators return, a three-fifths quorum is achieved and the omnibus budget bill can be passed. Then any administrative actions implemented in the interim could be reconsidered and reaffirmed by those administrators. That should defeat most of constitutional challenges because only effects between the passage of the first bill and the passage of the full budget bill would be subject to a plausible challenge, the rest being rendered moot going forward.

This strategy may raise other hurdles to surmount, depending on legislative rules and practices of which I am only dimly aware. A revote in the Assembly would probably be necessary, either on a new bill or on a reconciliation bill, but that vote could be taken with a simple majority for the first two (non-fiscal) bills. Also, additional language may be needed to clarify precisely which existing statutes were being modified. For either or both of these reasons, it is possible that a new referral to Senate and Assembly committees might be necessary.

Why are the Wisconsin Republicans not already taking an approach similar to the one I outline here? The first reason is that even some Republican legislators may not realize how narrow is the class of fiscal statutes and how little of the budget bill fits that narrow definition.

The second reason can be inferred only by reading between the lines of the public statements of some Wisconsin senators. Senator 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 a reporter from the Associated Press 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.

Yet a handful of the 19 Republican senators could vote against such a bill and it would still pass by a majority of votes if they were present and the Democrats stayed away. Moreover, if voting on such a narrow bill did not appeal to some Republican senators, then a broad bill could be passed instead, including all but the taxation, appropriation, and debt provisions.

Making democracy work can be a difficult task, especially if some actors refuse to perform the duties with which they are entrusted by the people. Yet aggressive approaches that try to punish senators or protesters may backfire. The governor and the legislators who remain should do everything they can to get the business of the legislature done as they see it, with or without the Democrats. Responsible legislators might worry less about protesters and wayward senators and more about doing their own jobs. Instead of obsessing about who is not there and why one can’t do what one wants to do, those who remain should focus on the task at hand. If the Republicans believe that changes are needed to repair Wisconsin’s budget, they should enact most of those changes now.