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The Wisconsin Senate

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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17 Responses

  1. Logan says:

    None. Though one could argue the bill passed last night did contain fiscal aspects. The difference is that Gov. Walker’s budget reform bill contained immediate fiscal matters; whereas the bill stripping public-sector unions of their ability to collectively bargin, would effect future fiscal matters. Assuming, that is, that Gov. Walker was correct in arguing that these measures would save Wisconsin and local governments money.

  2. Joe says:

    Leaving the state sort of has as different feel to it and the details are different in some ways, but the overall basic use of available procedures is on some basic level the same.

    As with many things, complaints on procedure in the political area really are not too serious, most concerned on the merits of the matter. Some consistently oppose things like filibusters and we can debate degree (usefully), but writ large, those upset at the Dems here would not be if the situation was reversed.

  3. I suspect there’s an implicit argument hanging around in the background somewhere, along the lines of “All legal measures are thereby ethical and laudable and also morally equivalent”. But, per Joe@2, it’s not accepted.

    Hypothetically, consider two different cases:

    1) Republicans filibuster to stop a civil-rights bill

    2) Democrats filibuster to stop a new civil internment bill akin to WWII Japanese internment

    In some ways – very abstractly – these could be said to be “no different”. But I think all that’s really saying is procedural maneuvering can’t determine morality in and of itself, despite rhetorical claims to the contrary.

  4. Michael says:

    I disagree. There are at least three key differences which deserve some recognition and, I think, that speak to the legitimacy of the minority party’s dilatory tactics. First, and most importantly, Barack Obama (and Democrats across the country) made health care reform a public policy priority in the 2008 election and they were overwhelmingly elected. Scott Walker did not even once mention taking away the collective bargaining rights of state employees during his campaign for governor. Wisconsin voters therefore had no opportunity to express their views on this important question, directly or indirectly, in 2010. Second, the health care reform debate proceeded over the course of a year and it was only then that the procedural tactics you discuss entered into the picture. Wisconsin Republicans attempted to push this legislation through in a matter of days (hours?) and without any real debate. And, finally, the health care legislation was built on compromises (it was, after all, largely the same as the Republican plan from 1994). The Wisconsin de-unionization bill included no compromise — indeed, Republicans proudly refused to compromise on any element of it. These contextual differences render comparisons between the tactics of the minority and majority parties inapt, I think.

  5. Natasha says:

    In my mind, there are a few substantive differences, but the main argument hinges on moral considerations as Seth pointed out up-thread.

    Republicans in the health care debate didn’t make a good-faith effort to negotiate a compromise. The Wisconsin Democrats attempted to find a consensus by giving ground on the funding portions of the bill; this compromise was outright rejected by the opposing party.

    As currently established, the federal supermajority requirement doesn’t require a substantial investment by the “filibustering” minority. The Wisconsin Democrats incurred a far higher personal cost by moving across state lines, remaining away from home and family for several weeks, and (later in the process) by refraining from picking up their paychecks and being assessed $100/day.

    Finally, ideological consistency is more apparent in the Democrats’ case: while the Wisconsin Democratic Party has been a consistent supporter of unionization, many of the proposals in the health care bill were enthusiastically put forward by Republicans in the Clinton administration. This makes it somewhat more difficult to argue that Republicans’ opposition to the health care bill is based on its moral repugnance, especially as many senior Republicans had supported the same provisions earlier. As I recall, there weren’t distinct arguments made for why their minds were changed, but I welcome being proven wrong.

  6. Bruce Boyden says:

    The super-majority rule in Wisconsin is in the Wisconsin constitution, whereas the super-majority rule in the U.S. Senate is not.

  7. Mark says:

    The quorum requirement is shield that is meant to protect from legislation being passed without giving a sufficient number of members a chance to be available for a vote. But the intent is that once you get enough legislators in the chamber the vote proceeds under the usual rules. The Wisconsin Democrats tried to use it as a sword because they knew that they didn’t have the votes to defeat the bill on the merits.

    The the purpose of the filibuster is to increase the number of votes needed to pass controversial legislation. The Republicans used the filibuster exactly as it was intended (you may argue that the filibuster was only meant to be used on important pieces of legislation, but the health care bill certainly meets that test).

    I think that is a major difference between the two situations.

  8. TJ says:

    I think there are differences if one was really motivated to find them, but the honest answer is that there is not much of a real distinction. But some possible distinctions:

    Democrats: Obama campaigned on health-care, Walker didn’t campaign on abolishing collective bargaining (Republican reply: Walker campaigned on fiscal austerity, and Obama didn’t campaign on individual mandates–its all in the level of abstraction).

    Republicans: The Senate filibuster is something everyone knew ahead of the game, which Democrats had only just a few years ago loudly supported, while the flee-the-state tactic was a new procedural innovation in Wisconsin and not a good one (Democratic reply: the Senate filibuster has an awful history that we should now abolish via the newly-named “constitutional option” while the quorum requirement is written into the Wisconsin constitution itself).

    Again, if someone is ideologically motivated to find a self-serving justification, human beings are really good at post-hoc rationalizations.

  9. Ken Rhodes says:

    Gerard, I’m certainly willing to be corrected on my interpretation if I’m in error on this, but I think you are incorrect in your parallelism.

    The Patient Protection and Affordable Care Act (PPACA) was passed by the Senate by a 60-39 vote, with every Democrat and Independent voting Yes, and no need for reconciliation.

    The problem requiring reconciliation was that the House refused (at first) to accept the Senate’s watered-down version of the much stronger bill already passed by the House. After Senator Kennedy died, the Senate Dems had to weaken many provisions of the original legislation to be able to mount the bullet-proof 60 vote super-majority.

    In order to get a bill passed by BOTH sides of the Capitol, they then had to work out compromises under reconciliation, getting the House to back down from their previous position that “the bill is the bill, and you guys have to take it or leave it.”

  10. I’d say the biggest difference is that voting against cloture is consistent with Senate rules at the federal level, while fleeing the state to prevent a quorum is not consistent with Wisconsin state Senate rules. You’ll notice that the Wisconsin 14 fled to Illinois. They did this because they’d have been subject to arrest had they been found in Wisconsin, so they had to get beyond the jurisdiction of Wisconsin police.

    Where’s the parallel to that in anything the Republicans did in Washington?

    I also notice a distinct lack of ACA opponents forcibly invading the Capitol in an effort to physically intimidate the legislative majority.

  11. A.J. Sutter says:

    Even accepting, for the sake of argument, Gerard’s premise that the two events are procedurally equivalent, I agree with those above who look to the substance of the bills to distinguish them. E.g., loss of the the “right” to choose whether or not to join a health care plan (assuming that’s the “right” impaired by the health care bill) and loss of the right to bargain collectively with one’s employer don’t exactly seem equivalent. To say that they are “no different” because one can draw parallels between the legislative procedures leading up to each seems like a textbook example of a sophism. By that logic we might as well say that the Small Business Paperwork Mandate Elimination Act of 2011 is “no different” from the Civil Rights Act of 1964 because both cleared the House by roll-call votes on a question of passage.

    Maybe Gerard intended the phrase “what happened” and the predicate “no different” to refer solely and disinterestedly to the process, rather than to the consequences. But in that case it would have been wiser to be more explicit, especially given the politically-charged nature of the examples involved. In the post’s current form, and in the context of Gerard’s earlier posts, this one does seem to have a “tit-for-tat” subtext. Too bad Gerard isn’t available to clarify his intention.

  12. Gerard Magliocca says:

    The intent was to provoke discussion. A success so far, I would say.

    OK, now I really am offline.

  13. Joe says:

    Brett, I recall various attempts to disrupt town hall meetings and so forth that appears to me comparable to any “threatening” (I use the quotes advisedly) actions here. Selective memory, reaffirming my sentiments.

    I myself noted leaving the state has a different feel, but since process doesn’t reach out of state, how that “violates” the rules is unclear to me. Also, when the Dems stay away a year, even after a bill that is patterned after Republican proposals of the past is involved, get back to me.

  14. “I myself noted leaving the state has a different feel, but since process doesn’t reach out of state, how that “violates” the rules is unclear to me.”

    Honestly, Joe, how does the fact that Wisconsin police can’t arrest you in Illinois have anything to do with whether or not what they’d arrest you for is a violation of the rules? The Wisconsin constitution, in common with the federal, and most state constitutions, allows those members of the legislature who are present to use force to compel any absent members to show up to form a quorum. How much more rule like do you require? A line reading, “And you’re not supposed to do what we’ve just authorized putting you in chains and dragging you back if you do.”?

    And the Republicans didn’t stay away AT ALL. They continued to be present, and vote on other matters. They merely, as they were perfectly entitled to, voted against a measure they opposed. Except that it was something Democrats wanted, and even more desperately wanted to share the blame for, it was no different from any cloture vote.

  15. Joe says:

    I cited a loophole that allows them to leave the state and it serves – in a bipartisan basis – as a safety valve if the group feels strongly enough about the matter. “Honestly” that is all I said. I didn’t say anything else.

    The Republicans in Congress (again, helped by disruptive protests) didn’t have to leave. The current filibuster regime allows minority blockage of the majority all too easy w/o that sort of thing. And, the Republicans in Wisconsin would have liked the Democrats to “compromise” or in some other way “share blame.” Of course, as with the Dems for ACA, they wouldn’t say “blame.” They think what they are doing is within the public interest.

    Talking about “blame” and selectively citing protests hits to the point of the post — selective targeting based on policy views. “Honestly.”

  16. ouch says:

    Funny how people insist on ignoring Gerard’s point to vent about their political causes. Gerard’s point was entirely valid: union supporters claim that what Republicans did in WI is improper gaming of the procedure, dirty games so to speak, and is therefore blameworthy. Gerard points, correctly, that Republican gaming in WI was not any dirtier than the Democratic gaming with Obamacare. The only thing that union supporters here could respond is that the substance of the passed legislation was more blameworthy. In other words, they concede Gerard’s point, though they either pretend that they don’t, or are genuinely incapable of understanding what the point is. Good job, Gerard.

  17. What “loophole”, Joe? Fleeing to another jurisdiction isn’t a loophole in any law, it’s just a way of evading compliance.

    The bottom line is that the Republicans in Washington fought within the rules, the Democrats in Wisconsin fought outside them.

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