NRO Editorial-“A New Wisconsin Strategy: Split Out the Union Provisions and Pass Them by a Simple Majority”

I have an editorial up on National Review Online on the history of the super-majority quorum requirement and my proposal to split out the collective bargaining provisions and pass them first:

The Republicans could split the bill into three bills. The first bill should be as short as possible, containing only the most central collective-bargaining provisions. If passing this bill did not cause the walkout to collapse, a few days later the Senate could pass a second bill, containing all the rest of the bill except those few provisions that increase appropriations, impose a tax, or incur a new debt. These would be provisions that are probably not fiscal, but whose constitutionality is less certain.

The third bill would essentially be the full original bill, including the appropriations and taxation provisions as well as the language of the other two bills. Passing this would require the return of at least one Democratic senator. . . .

Why are the Wisconsin Republicans not already taking an approach similar to the one I outline here? First, even some Republican legislators may not realize how narrow is the class of “fiscal” statutes and how little of the budget bill fits into that category. The second reason can be inferred only by reading between the lines of the public statements of some of the senators. Sen. 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 Ryan Foley of the AP 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 the Republicans were in the Capitol and the Democrats stayed in Illinois. Also, if voting on such a narrow bill targeting union rights did not appeal to some Republican senators, then a broad bill could be passed instead, including all but the few taxation and appropriation provisions. While that might be more politically palatable to reticent Republicans, it would somewhat raise the small probability that the statute would be held unconstitutional.

Making democracy work can be a difficult task, especially if some actors refuse to perform the duties with which they were 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, with or without the Democrats. Responsible legislators should worry less about protesters and wayward senators and do their own jobs, passing the parts of the statute that don’t need Democratic support. This is not just a matter of strategy; it is a matter of principle. 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.

There’s more at NRO and at SSRN.

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