In yet another twist in the controversy in Wisconsin swirling around Gov. Scott Walker’s bill that would deep-six collective bargaining for public unions, the legislation was published — ignoring a court restraining order. This is likely to further arouse passions and polarize Wisconsin as well as other parts of the country where labor unions are under being challenged by GOP governors:
In a stunning twist, controversial legislation limiting collective bargaining for public workers was published on Friday despite a judge’s hold on the measure, sparking a dispute over whether it takes effect Saturday.
The legislation was published Friday to the Legislature’s website with a footnote that acknowledges the restraining order by a Dane County judge. But the posting says state law “requires the Legislative Reference Bureau to publish every act within 10 working days after its date of enactment.”
The measure sparked massive protests at the Capitol and lawsuits by opponents because it would eliminate the ability of most public workers to bargain over anything but wages.
The restraining order was issued against Democratic Secretary of State Doug La Follette. But the bill was published by the reference bureau, which was not named in the restraining order.
This is basically “ends justify the means” politics: using a loophole.
Laws normally take effect a day after they are published, and a top GOP lawmaker said that meant it will become law Saturday. But the nonpartisan legislative official who published the law disagreed.
“I think this is a ministerial act that forwards it to the secretary of state,” said Stephen Miller, director of the Legislative Reference Bureau. “I don’t think this act makes it become effective. My understanding is that the secretary of state has to publish it in the (official state) newspaper for it to become effective.”
Prediction: Walker will insist it is now valid and implement it where he can.
Walker signed the bill March 11. Under state law, it must be published within 10 working days, which was Friday.
The law has not been printed in the Wisconsin State Journal, the official state newspaper, as other laws are. Late Friday, State Journal publisher Bill Johnston said in an email that the notice for the law had been scheduled to run but had been canceled. He did not elaborate.
Senate Majority Leader Scott Fitzgerald (R-Juneau) claimed it didn’t matter that it hasn’t appeared in the paper.
“It’s published,” Fitzgerald said. “It’s law. That’s what I contend.”
The question is: how will independent voters react to this? Polls have shown that in Wisconsin and elsewhere Walker’s actions are not winning the argument. This move, at first blush, at least, seems a “whatever it takes” on this issue. But the problem for Walker and the GOP is that many Americans have clearly now concluded that it isn’t just the budget at play in Wisconsin and other states where Republican governors are slicing away rights that were considered a “given” in American life. There is an ineffable aroma of power politics — partially ideology and part an effort to remove a group that has traditionally supported Democrats, in the believe it’d hurt the Dems in 2012.
However you can now predict this: Wisconsin is likely to rally unions and many union members more than ever to the Democratic party and rally the party’s base, even if they are not totally pleased with Barack Obama.
A CROSS SECTION OF VIEWPOINTS ON THIS ISSUE
We still don’t know if the state Supreme Court will take up the restraining order on the bill, which has been appealed by the state Attorney General. But the Walker Administration is acting like the restraining order didn’t exist.
The level of contempt for the law is astounding to me…
…Of course, the point is not necessarily whether the Secretary of State has the sole power to publish law – that looks clear to me. It’s whether the Walker Administration THINKS the bill is now published and law that’s the problem, and what will be the remedy for that.
….Democrats are surely on their way back to court even as you’re reading this to demand that the TRO be expanded to cover the LRB, Walker, the legislature, and everyone else under the sun. The judge did, after all, enjoin “further implementation” of the law generally before specifying a particular actor, so they’ll probably win and the scope of the order will be enlarged. In fact, according to the Journal-Sentinel story quoted above, there’s already a new court action pending that challenges the collective bargaining law on some sort of equal protection grounds (treating one group of workers differently from another by limiting their CB privileges) and argues that the state GOP should have needed a three-fifths quorum to pass it instead of the simple majority quorum they used. Nothing should change here, in other words, and since the state supreme court is probably going to deal with this sooner rather than later, even if the law is implemented immediately its ultimate fate should be decided in a few days anyway.
The law is being followed: State law “requires the Legislative Reference Bureau to publish every act within 10 working days after its date of enactment..
(Jonathan H. Adler)
Wisconsin Attorney General J.B. Van Hollen appealed the decision by a county judge enjoining publication of legislation that would curtail collective bargaining rights for public employees. The AG’s petition, filed with a state appellate court, seeks leave to appeal and a stay of the county judge’s temporary restraining order. The Journal-Sentinel reports:
In its appeal Monday, the state made several arguments. First, the state argued that the court has no jurisdiction over GOP legislative leaders being sued or over La Follette because they all currently enjoy legal immunity.Second, the state argued that the court can’t block a bill that hasn’t yet been published into law because that amounts to interfering with the Legislature in its area of responsibility of passing laws.
Last, the state argued that the courts can’t block or strike down a law passed by the Legislature purely on the basis of lawmakers failing to follow the rules of the lawmaking process such as legislative rules or the open meetings law. State Supreme Court decisions have found that the courts can only strike down or block laws when the Legislature has failed to follow constitutional requirements, the state said in its appeal.
This is being touted on some websites and progressive talk programs as a huge development, but it clearly seems to be a t-e-m-p-o-r-a-r-y block — a delay — in the implementation of Wisconsin’s GOP-rammed-through anti-collective bargaining law:
Dane County Circuit Judge Maryann Sumi issued a temporary restraining order Friday, barring the publication of a controversial new law that would sharply curtail collective bargaining for public employees.
Sumi’s order will prevent Secretary of State Doug La Follette from publishing the law until she can rule on the merits of the case. Dane County Ismael Ozanne is seeking to block the law because he says a legislative committee violated the state’s open meetings law.
Sumi said Ozanne was likely to succeed on the merits.
“It seems to me the public policy behind effective enforcement of the open meeting law is so strong that it does outweigh the interest, at least at this time, which may exist in favor of sustaining the validity of the (law),” she said.
The judge’s finding – at least for now – is a setback to Republican Gov. Scott Walker and a victory for opponents, who have spent weeks in the Capitol to protest the bill.
Asst. Atty. Gen Steven Means, who was part of the state’s legal team, said after the ruling that “we disagree with it.”
“And the reason they have appellate courts is because circuit court judges make errors and they have in this case.”
Means said the state would “entertain an appeal.”
“If the Legislature decides to go back and re-act on these provisions, they have the right to do that. And we will see what happens,” he said.
Means said he had no idea what the Legislature might do.
Means said no final decision had been made on an appeal. “But that’s where we are pointing at,” he said.
Given the huge number of top state and national Republican politicos, lawyers, and businesses with a huge interest in this law, it stands to reason that the chances that this will be anything but temporary are remote, no matter how it is hyped.
Here’s what the legal blog Vookh Conspiracy says:
The basis for the judge’s decision is the legislature’s alleged violation of the state’s open meetings law. A representative from the state Attorney General’s office says his office disagrees with the ruling and may appeal. In the alternative, if there was in fact a legal violation, the legislature may need to reenact the measure.
I would be curious if any readers know more about the law in question and the precedent for applying it to legislative actions. At the federal level, a court challenge to a law alleging that one house of Congress failed to follow its own rules would have tremendous difficulty, even if there were a strong case on the merits. (See, e.g, here.) States may adopt different standards and practices, however, and I’d be interested in hearing how Wisconsin (or other states) have handled such questions historically.
The key is “re-enact.” Is there any real, authentic, genuine doubt that should Gov. Scott Brown and his GOP majority decide to revote that no matter waht the clamor, no matter what is going on with recalls, and no matter how many people protested outside it will pass?
The bigger question is how this plays out in courts — and elections — further down the road. Consider this a detour.
The standoff in Wisconsin is over, as Senate Republicans passed the controversial bill stripping state employees of collective bargaining rights without the Democratic senators who fled the state to prevent a quorum.
AP (“Wisconsin GOP bypasses Dems, cuts collective bargaining“):
The nearly month-long standoff in the Wisconsin Legislature over explosive union rights legislation rocketed toward a dramatic finish Thursday after Senate Republicans outmaneuvered their missing Democratic counterparts and pushed through the bill.
The dramatic turn of events late Wednesday set up a perfunctory vote Thursday morning in the Assembly on the measure that would strip nearly all collective bargaining rights from most public workers. Once the bill passes the Assembly, it heads to Republican Gov. Scott Walker for his signature.
Within hours after the Senate passed the bill, a crowd of hundreds of protesters grew to about 7,000 in the Capitol, a crowd as large as any seen inside the building over three weeks of demonstrations. ”The whole world is watching!” protesters shouted as they pressed up against the heavily guarded entrance to the Senate chamber. Most protesters left by midnight — many were expected back Thursday — but dozens of others spent the night in the Capitol corridors. State officials said no attempts would be made to force them to leave.
The bill had been stymied after all 14 Senate Democrats fled to Illinois nearly three weeks ago, preventing the chamber from having enough members present to pass it. Walker introduced it to plug a $ 137 million budget shortfall.
The Senate requires a quorum of 20 to take up any measures that spends money. But a special committee of lawmakers from both the Senate and Assembly voted late Wednesday afternoon to take all the spending measures out of the legislation and the Senate approved it minutes later 18-1. Republican Sen. Dale Schultz cast the lone no vote. ”I voted my conscience which I feel reflects the core beliefs of the majority of voters who sent me here to represent them,” Schultz said in a statement.
Until Wednesday’s vote, it appeared the standoff would persist until Democrats returned to Madison from their self-imposed exile. But in a matter of minutes, it was over.
“In 30 minutes, 18 state senators undid 50 years of civil rights in Wisconsin. Their disrespect for the people of Wisconsin and their rights is an outrage that will never be forgotten,” said Democratic Senate Minority Leader Mark Miller. “Tonight, 18 Senate Republicans conspired to take government away from the people.”
Oh, nonsense. They were overwhelmingly elected in November and prevented from acting only by bad faith on the part of the Democratic minority. And the Democrats have the ability to either try to force Republicans out via the recall process or rally back to a majority in 2012 and undo this legislation.
The Milwaukee Journal Sentinel (“With Democrats absent, Republicans advance collective bargaining changes“) adds:
With Democrats still in Illinois, the state Senate abruptly voted Wednesday night to eliminate collective bargaining provisions for most public workers that have stood for decades, sending a flood of angry protesters into the Capitol.
The bill, which has drawn international attention, is to be taken up at 11 a.m. Thursday by the Assembly.
Republicans devised a plan to get around the impasse and hurriedly approved the bill late in the day after meeting for hours behind closed doors. Walker met with them for more than half an hour at the start of the private meeting.
“The Senate Democrats have had three weeks to debate this bill and were offered repeated opportunities to come home, which they refused,” Walker said in a statement. “In order to move the state forward, I applaud the Legislature’s action today to stand up to the status quo and take a step in the right direction to balance the budget and reform government.”
Just before the Senate vote, a committee stripped some financial elements from the bill, which they said allowed them to pass it with the presence of a simple majority. The most controversial parts of the bill remain intact.
That committee, formed just two hours earlier, quickly approved the bill as the lone Democrat at the meeting screamed that Republicans were violating the state’s open meetings law - a claim Republicans disputed. ”This is a violation of law!” bellowed Assembly Minority Leader Peter Barca (D-Kenosha).
Senate Majority Leader Scott Fitzgerald (R-Juneau) ignored him and ordered the roll to be taken. Minutes later, the Senate took up the bill and passed it without debate.
“Shame on you!” protesters cried from the viewing gallery.
Sen. Bob Jauch (D-Poplar) decried the move as “political thuggery.” He and other Democrats warned it could end the political careers of some Republican senators who are under the threat of recalls. ”I think it’s akin to political hara-kiri,” said Jauch.”I think it’s political suicide.”
That’s democracy. The majority gets to pass bills. The public then gets to periodically weigh in on the bills passed and decide if they want to stay the course or change direction. It’s messy but beats shenanigans like hiding out in neighboring states to forestall a vote.
Ezra Klein (“What happened in Wisconsin tonight“):
What happens next? Expect the protests over the next few days to be ferocious. But unless a judge rules the move illegal — and I don’t know how to judge the likelihood of that — Walker’s proposed law will go forward. The question is whether Walker and the Republicans who voted for it will do the same.
Polls in Wisconsin clearly showed that Republicans had failed to persuade the public of their cause. Walker’s numbers dropped, while Democrats and unions found themselves suddenly flush with volunteers, money and favorable media coverage. And they plan to take advantage of it: Eight Wisconsin Republicans have served for long enough to be vulnerable to a recall election next year, and Democrats have already begun gathering signatures. Now their efforts will accelerate. “We now put our total focus on recalling the eligible Republican senators who voted for this heinous bill,” said Mike Tate, chairman of the Wisconsin Democratic Party. “And we also begin counting the days remaining before Scott Walker is himself eligible for recall.”
I’m not a fan of the recall process, excepting in case of politicians who have committed crimes. (And, yes, I held that view when California recalled Democrat Gray Davis.) But it is a tool that Wisconsin has given to voters so, if they can muster the enthusiasm to use it, it’s fair game. And, again, if they can’t there’s always the next scheduled election.
Interestingly, Scott Walker has an op-ed in today’s WSJ titled “Why I’m Fighting in Wisconsin.” Presumably, it was written and scheduled well before last night’s vote.
In 2010, Megan Sampson was named an Outstanding First Year Teacher in Wisconsin. A week later, she got a layoff notice from the Milwaukee Public Schools. Why would one of the best new teachers in the state be one of the first let go? Because her collective-bargaining contract requires staffing decisions to be made based on seniority.
Ms. Sampson got a layoff notice because the union leadership would not accept reasonable changes to their contract. Instead, they hid behind a collective-bargaining agreement that costs the taxpayers $ 101,091 per year for each teacher, protects a 0% contribution for health-insurance premiums, and forces schools to hire and fire based on seniority and union rules.
My state’s budget-repair bill, which passed the Assembly on Feb. 25 and awaits a vote in the Senate, reforms this union-controlled hiring and firing process by allowing school districts to assign staff based on merit and performance. That keeps great teachers like Ms. Sampson in the classroom.
Most states in the country are facing a major budget deficit. Many are cutting billions of dollars of aid to schools and local governments. These cuts lead to massive layoffs or increases in property taxes—or both.
In Wisconsin, we have a better approach to tackling our $ 3.6 billion deficit. We are reforming the way government works, as well as balancing our budget. Our reform plan gives state and local governments the tools to balance the budget through reasonable benefit contributions. In total, our budget-repair bill saves local governments almost $ 1.5 billion, outweighing the reductions in state aid in our budget.
When Gov. Mitch Daniels repealed collective bargaining in Indiana six years ago, it helped government become more efficient and responsive. The average pay for Indiana state employees has actually increased, and high-performing employees are rewarded with pay increases or bonuses when they do something exceptional.
Passing our budget-repair bill will help put similar reforms into place in Wisconsin. This will be good for the Badger State’s hard-working taxpayers. It will also be good for state and local government employees who overwhelmingly want to do their jobs well.
In Wisconsin, we can avoid the massive teacher layoffs that schools are facing across America. Our budget-repair bill is a commitment to the future so our children won’t face even more dire consequences than we face today, and teachers like Ms. Sampson are rewarded—not laid off.
He’s got a few months to make his case and assuage voter anger. My hunch is that he’ll be successful in that effort, as Daniels was.