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.
Badger Pundit 
While Cliff Their is correct about the PURPOSE of a quorum requirement, I don’t think he is correct about what the Wisconsin constitution requires.
For fiscal bills, three-fifths are required AND the yeas and nays have to be recorded.
Without recording that the absent Democrats were present during the vote, his idea won’t fly. I doubt that such a move would be doable even with a rule change.
Further, in 1971 the Wis. Sup. Ct. held that having a 3/5ths quorum present earlier in the day and then taking a vote on a fiscal bill without a roll call did not establish that there was still a 3/5ths quorum at the time the fiscal bill was passed.
Thus, the Wisconsin courts have already determined in effect that the opportunity to vote is not enough to meet the constitutional requirement of a 3/5ths quorum. Even a rule change would probably not change that holding.
Well, welcome to the blog, and thanks for your very prompt comments. Presumably Their would concede that the conventional understanding is that a quorum is met if and only if the required number of senators are physically present in the chamber.
What he seems to be suggesting is that there is, literally, nothing in the Wisconsin Constitution which requires actual presence. When it was first enacted with a quorum requirement in the mid-1800s, presumably a “quorum” necessarily required physical presence because that was the only way legislators could debate and vote in real time. Now, however, legislators can perceive and act on real time from a distance — just as some of the fugitive senators were allowed to do a week or two ago in a committee hearing.
All Their seems to suggest is that because the Constitution doesn’t literally require physical presence, and because the Legislature is accorded authority to refine voting procedures, the Legislature might constitutionally say that the mere ability to participate from a distance constitutes constructive presence — and that to do so would be consistent with the original purpose of the quorum requirement.
That’s not an endorsement of his suggested approach. The approach would set a very messy precedent. A cleaner and more solid approach would be for the Legislature to exercise its authority to pass a special statute declaring any seat vacant after a legislator is absent X number of days, at least when the absence causes a lack of a quorum — or, even more specially, declaring these particular 14 seats vacant if the senators don’t show up before the Governor signs the bill. Either form of a special statute would presumably lead the senators to reverse course, and if none did the empty seats could quickly be filled with new senators.
First, because the yeas and nays cannot be recorded by roll call, anything that passes with fiscal consequences would be vacated unless one of the fourteen casts a vote.
Second, I should point out, the original post misidentifies the relevant section as Article VII, Section 8 when it is, in fact, Article VIII, Section 8.
Third, I am not sure that your last suggestion would hold up because removal from office requires the same or higher threshold as a quorum. This suggestion is an end run on the Constitution. Further, consider the hazards involved in this suggestion. Suppose that some group of domestic terrorists kidnapped fourteen legislators who would then be removed from office after sufficient time elapses. Even with a short sunset or whatever, I cannot imagine that any court that is not full of Scott Walkers would allow this to stand as it violates both the letter and spirit of Wisconsin’s constitution.
The constitution also allows those members in Senate and Assembly to create the rules for quorum.
Kind of hard to understand that, but if there is a rule that exists for quorum, it certainly was placed correctly.
If the 3/5’s rule is in place, then it is in place.
Here is a question. The fines that were voted on by the Senators that remain in Madison, because they raise revenue, cannot actually stand, can they? If the funds are deposited in the Treasury, then they are new revenue raising measures.