Much of the bill currently pending before the Wisconsin senate can be enacted into law without the presence of the fugitive “Badger 14” senators, says Northwestern University law professor Jim Lindgren in a new paper, here (h/t Glenn Reynolds). The crux of his abstract:
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. . . . 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. . . . 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.
But is it correct that the remainder of the bill would have to await the return of the “Badger 14”? The premise of Professor Lindgren’s paper — indeed, the premise of virtually everyone — is that the supermajority quorum requirement for fiscal bills can only be met if 20 senators are physically present in the senate chamber. A argument to the contrary is sketched in an essay by Cliff Their posted on the American Thinker website on Monday:
The quorum requirement is not a right in itself, but rather a safeguard against trickery. It protects the rights of citizens to be represented. It is not a power granted to a minority to block a vote of a majority. The Wisconsin Constitution does not require an affirmative vote by three-fifths of the elected legislators, but only the opportunity for at least three-fifths of its members to vote. Contrast this with the sixty-vote filibuster-ending requirement in the U.S. Senate.
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What is unambiguously not in the Wisconsin Constitution is a statement as to where those legislators must be in order to be counted towards a quorum.
The Wisconsin Constitution assigns the state legislature the responsibility of crafting rules and definitions governing how voting is to be conducted, i.e., the mechanics of voting. Article IV, Section 7 empowers 51% of the elected legislators in each house of the Wisconsin legislature to . . . define a quorum to include those legislators who have the ability — if they choose — to vote absently, either by electronic means or proxy. This would ensure that no citizens are ever deprived of representation in the state legislature even if their representative is in the hospital or out of town . . . .
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Every state permits absentee voting, and more and more are permitting electronic voting from locales other than town halls and school gymnasiums. . . . Such a statute or rule for Wisconsin’s legislature would state that so long as a member can reach a telephone and is able to record a vote, that member should be counted as part of a quorum. The act of not voting, that is abstaining, has never been counted against a quorum. It’s the ability to cast a vote that is all that has mattered. . . .If the 19 Senators who have shown up for work wish to do the people’s business, they have the power to do it. It is very plainly given to them in Article IV, Section 7 of their state’s constitution. There is nothing in the Wisconsin Constitution to prevent them from doing that immediately.