The Supreme Court and the health-care mandate muddle
By George F. Will
Sunday, March 13, 2011
When the Supreme Court considers whether Congress has the constitutional power to compel individuals to buy health insurance, the argument supporting Congress may rest on a non sequitur and a semantic fiat. A judge's recent ruling argues that the insurance mandate must be constitutional because Obamacare would collapse without it. A forthcoming law review article agrees with this and with the judge's idea that, regarding commerce, being inactive is an activity.
Obamacare does indeed require the mandate: Because the law requires insurance companies to sell coverage to people regardless of their preexisting conditions, many people might delay buying insurance until they become sick. But is the fact that the mandate is crucial to the law's functioning dispositive?
U.S. District Judge Gladys Kessler's ruling that the mandate is constitutional conflates moral, policy and constitutional considerations. She says that people who choose "not to purchase health insurance will benefit greatly when they become ill, as they surely will, from the free health care which must be provided by emergency rooms and hospitals to the sick and dying who show up on their doorstep." So "those who choose not to purchase health insurance will ultimately get a 'free ride' on the backs of those Americans who have made responsible choices to provide for the illness we all must face."
Her disapproval is neither a legal argument nor pertinent to one. The question remains: Does Congress's power to regulate interstate commerce entitle it to create a health-care regime that requires the mandate?
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Mark Hall of Wake Forest University, in an article for the University of Pennsylvania Law Review, says there would be constitutional "uncertainty over the mandate in isolation." But it is "inextricably intertwined" with Obamacare's "other insurance regulations" - e.g., those pertaining to preexisting conditions - "which indisputably are constitutional." So the "strongest defense" of Congress's power to enact the mandate is "the acknowledged undesirability, if not impossibility" of the regulations regarding preexisting conditions, absent the mandate.
Hall says that the mandate "meets a high threshold of necessity to accomplish the overall reform scheme, clearly within congressional power, to create a market structure in which no one is ever again medically uninsurable." But unless we postulate that Congress has whatever power is required to create such a market structure, this question remains: Does the fact that Congress has the constitutional power to do X - say, guarantee universal access to insurance - make Y constitutional merely because Y is necessary for doing X?
Congress has the constitutional power to combat political corruption, the "appearance" thereof and the "circumvention" of laws for this purpose. But suppose Congress, exercising this power by regulating campaign finances, decides that abridging freedom of speech is necessary for its anti-corruption measures. This necessity, defined by this preference, does not make such abridgement constitutional. The Supreme Court said as much concerning McCain-Feingold.
The mandate's defenders note that the Constitution says Congress has the power to "make all laws which shall be necessary and proper for carrying into execution" its enumerated powers, one of which is to regulate interstate commerce. "Necessary and proper." An unconstitutional law is improper.
Does the mandate acquire derivative constitutionality merely by Congress making the mandate necessary for something Congress wants to do in the exercise of the enumerated power of regulating interstate commerce? If so, what would not acquire such constitutionality?
Madison's constitutional architecture for limited government will be vitiated unless the court places some limits on what constitutes commerce eligible for regulation. So the question becomes: Is the inactivity of not buying insurance a commercial activity Congress can proscribe because it has economic consequences?
Hall says it is unclear what constitutes "pure inaction." But virtually nothing qualifies as "pure" inactivity if, as he says, "the passivity of non-purchasing decisions does not rob them of their inherently economic nature." Judge Kessler disdains the distinction between activity and inactivity as "of little significance." Her Orwellian theory is that government can regulate the activity - the mental activity - of choosing not to participate in a commercial activity.
Hall perfunctorily says that "some limit" on Congress's commerce power "is necessary" but then says "democratic electoral constraint" - trusting "the political process itself to set limits" - will suffice to restrain government.
The question about the mandate is, however, whether a political institution has traduced constitutional limits placed on it. Because the Framers prudently doubted the sufficiency of "democratic electoral constraint" - because they were wary about "the political process" policing itself - the Constitution was written.
georgewill@washpost.com
Monday, March 14, 2011
How Republicans won the battle of Madison
How Republicans won the battle of Madison.
Stephen F. Hayes and John McCormack
March 21, 2011, Vol. 16, No. 26
Scott Walker was finished.
It was Wednesday, March 9, and Governor Walker had decided to visit the Wisconsin State Capitol before he headed off to give his “Ag Day” speech that afternoon.
Walker figured he had been very patient. Four weeks earlier he had proposed his budget repair bill, and he had the votes to pass it. But one week after that, all 14 Democratic state senators fled to Illinois to deny Republicans the quorum they thought necessary to hold a vote on the legislation. In the days that followed, top Republican legislators and senior aides to Walker spoke regularly with Democrats in an effort to forge a compromise—several times believing that they had reached a tentative understanding that would allow the senate to take up the controversial measure, only to have the agreement collapse. The more this happened the less likely a compromise seemed.
So, shortly before 11 a.m. on Wednesday, Walker addressed a meeting of the senate Republican caucus. It was time to end the standoff and move forward, he said. The world didn’t know it, but Republicans had been given the tools to do that two days earlier, in rulings from three nonpartisan bodies that allowed them to tweak the bill slightly and pass it with only a simple majority present in the senate. But Walker kept his comments general. He said that while Wisconsinites were divided about the wisdom of his proposals, there was widespread agreement that the stalemate had to end.
At a press conference that afternoon, a reporter asked Walker about a letter to him from senate minority leader Mark Miller. Walker had not received the letter—it was released to the media before it was delivered to his office. Miller offered two choices he knew would be rejected and said that if Walker did not meet his demands it would be clear the governor wanted to “keep lines of communications closed.”
It was a final act of bad faith from Miller. A few hours later, Republicans in the state senate moved swiftly to pass the tweaked bill. And two days later, Walker signed it.
It was over.
What happened in Wisconsin has broad implications. The state is only one of many that face massive deficits following years of irresponsible spending—in Wisconsin, $3.6 billion over the next two years. Walker ran for governor last fall on reducing that spending and balancing the budget. He won with more than 52 percent of the vote. So he proposed a budget repair bill to begin that process.
Democrats, who lost not only the governor’s mansion but also both chambers of the state legislature, were powerless to stop Walker from implementing his agenda. Encouraged by the interest groups that help elect them, particularly the unions, these Democrats did the one thing they could to slow him down. It didn’t work. The failure of their effort and the enactment of the reforms will have profound policy and political consequences, not only for Wisconsin but also for the country.
As it was originally proposed, Walker’s budget repair bill had two main components. The first would require public employees paid by the state government to contribute more to the cost of their health care and pensions. The second would limit the collective bargaining power of public employee unions to wages, a change that would allow county and local governments to undertake cost-saving measures without having them blocked by unions.
The unions quickly conceded the first of these two points—at least rhetorically. Union leaders and their allies in the state legislature claimed that public employees would gladly contribute more to their pensions and health care premiums—the 5.8 percent of their salaries on the former and 12.6 percent of the premiums on the latter requested by the governor—if they were allowed to keep all of their collective bargaining rights.
It was a smart public relations move. The unions seemed reasonable and willing to negotiate.
Walker was portrayed in the media as obstinate and too eager to “strip the collective bargaining rights” of Wisconsin’s public employees. His poll numbers reflected the criticism.
But even as they offered to contribute more, unions throughout Wisconsin were rushing through contract extensions that would exempt them from having to pay more towards benefits. In some localities, public employee unions were not only pushing to avoid the increased benefit contributions, they were attempting to force through pay raises.
Unions claimed that they objected chiefly to the limits on collective bargaining, which they said would leave public employees vulnerable to unjust firings and unfair changes to their benefits. The unions also objected to a provision that would allow public employees to choose for themselves whether to join the union and pay dues—a departure from current law. Other states that had implemented these changes had seen union membership drop precipitously, and union leaders understood that the corresponding loss of power and money would be devastating.
So despite the fact that there are dozens of states without collective bargaining for public employees, and that most federal workers do not have collective bargaining rights, and that the increases in benefit contributions contained in the budget repair bill were modest—leaving state employees considerably better off than their private-sector counterparts—union bosses mobilized their resources to fight in Madison. The rallies were huge—with organizational help from the Democratic National Committee and the good fortune that Madison, with its graying radicals and leftist college students, is better prepared for an insta-protest than just about any other city in the country. So for weeks, as Democratic senators hid in Illinois and malcontents camped in the capitol at times literally blocked legislative action, the protesters chanted, “This is what democracy looks like.”*
As soon as the senate Democrats left town, Republicans began to explore their options for passing the budget repair bill without them. There was talk—public and private—about “splitting” the bill to get around the need for a three-fifths quorum. For most, this meant separating the two main provisions of the legislation—the collective bargaining reforms in one bill and the benefit contribution increases in another.
Walker didn’t want to do this. Democrats were accusing him of including the collective bargaining restrictions for no other reason than to weaken unions, saying the collective bargaining provisions had no fiscal impact. On the surface, separating the bills would seem to validate this criticism, although no one knows better than union bosses just how important a tool limiting collective bargaining would be to reducing expenditures on public employees. In fact, school districts and local governments could require changes to their employees’ health benefits only if collective bargaining were curtailed.
So on February 28, senate majority leader Scott Fitzgerald drove across southern Wisconsin to meet with two Democrats who wanted to explore a compromise, Bob Jauch and Tim Cullen. Fitzgerald says that the two had opposed the flight to Illinois in the first place and along with at least one other colleague wanted to find a way to return. They explored several options over hotcakes and sausage at a local McDonald’s. Fitzgerald left without a compromise but with what he believed was a commitment that the Democrats would soon be returning to Madison.
“I met ’em on a Monday,” Fitzgerald recalls. “They called me on a Tuesday saying they’d be in the chamber Wednesday morning. I called them on Wednesday morning to say, ‘Listen, I know you’re coming back, let me call the cops to give them a heads up that you’ll be back.’ And then Senator Cullen said, ‘Well, Fitz, what I told you the other day was true at the time I said it, but we’re not coming back.’ ”
Fitzgerald was frustrated and concluded the Democrats were not negotiating in good faith. He called Cullen and told him to deal directly with the governor’s office.
Walker instructed two of his top aides—chief of staff Keith Gilkes and deputy chief of staff Eric Schutt—to pick up negotiations with the Democrats. “There was continued optimism on our side that something would get done,” says a source close to Walker. The governor would not compromise on the two main components of the bill. But he was willing to make some concessions, such as allowing unions to bargain collectively for wages beyond the rate of inflation, as well as for performance bonuses, mandatory overtime, and class size.
The discussions on March 2, again in a McDonald’s, included the two moderate Democrats, the governor’s staff, and, importantly, Mark Miller, the Democratic leader. When the negotiations ended, Republicans once again believed their colleagues would be returning soon. Gilkes woke Walker up with a phone call at 11:45 p.m. on Wednesday to tell him that they had agreed on “the framework for a deal” that would be finalized in the coming days. The talks continued by phone for several days and culminated in a meeting between Gilkes, Schutt, Jauch, and Cullen on Sunday, March 6, in South Beloit.
The talks went well, and Walker was not surprised when the Wall Street Journal reported that evening that the Democrats would be coming home. Miller, the Democratic leader, told the paper: “We are now looking at returning to the state capitol and requiring the senators to take a vote and have them declare who they’re with—the workers or the governor.”
Jauch, as he had done in meetings with Republicans, pointed to the advanced pregnancy of one state senator in Illinois as a factor in the decision to return. “I think we have to realize that there’s only so much we can do as a group to make a stand,” he said. “It’s really up to the public to be engaged in carrying the torch on this issue.”
But as had been the case all week, the moment Republicans thought the homecoming was imminent, the story changed. State senator Chris Larson, a hard-left legislator, posted a message on his Facebook page saying the Democrats were staying away and claiming, implausibly, that the Journal had quoted his colleagues out of context.
If there were any question that the deal was dead, the Democratic leader dispelled it by issuing a letter Monday to Walker through the media. His missive called for a meeting near the Illinois-Wisconsin border—an absurd request given the regular negotiations that had been quietly taking place for a week.
“He was trying to frame the debate as if we hadn’t been negotiating,” says one source close to Walker. “We’d been taking hits in the media for refusing to negotiate, and we never went public to push back on that so as to not jeopardize the progress we thought we were making. We knew then that Miller was being disingenuous.”
So Republicans got serious about a GOP-only alternative. After one of the breakdowns in negotiations, a week before, Walker had gone to Republicans in the state senate to gauge their willingness to move forward without the Democrats. They were not interested—yet. Since the earliest days of the standoff, Republicans had been engaged in an informal back-and-forth with lawyers from the state’s legislative fiscal bureau, a nonpartisan agency, about their options. On Monday, they formalized their request: How much of the budget repair bill could be passed without a quorum?
They were thrilled with the response—almost all of it. Despite speculation that employee contributions to benefits (what Walker and his staff called the “5-and-12” provisions) would have to be stripped out, the bureau informed Republicans these could remain—meaning both of the main components of the bill could be passed without Democrats. Two other nonpartisan state agencies agreed, the Legislative Council and the Legislative Reference Bureau. The attorneys insisted that the legislation drop a refinancing provision as well as the sale of state-owned power plants. But most of the bill could be moved. Although the 5-and-12 and collective bargaining provisions would have a fiscal impact, they did not require the state to appropriate any money and thus could be included. “Democrats thought we wouldn’t be able to do the 5-and-12 with collective bargaining,” says Walker.
There was more good luck on Monday. In an interview with radio host Charlie Sykes, Milwaukee mayor Tom Barrett, who had lost the governor’s race to Walker last fall, pushed the Republicans to try to move forward without the Democrats. Barrett, working on the mistaken assumption that the 5-and-12 would require a separate vote, said:
Barrett: You could vote on those without those missing senators. You could vote on those tomorrow morning. You don’t need 20 senators to vote on those changes to the collective bargaining. Again, if someone really wanted to end this standoff, the way you would end it is simply have a separate vote.
Sykes: Would you favor that?
Barrett: I would certainly favor that.
So on Wednesday, when Walker spoke to Republicans in the senate, they not only had a legal opinion endorsed by three nonpartisan legal agencies, they also had political cover provided generously, if inadvertently, by the state’s most prominent Democrat.
In a late afternoon vote, senate Republicans passed the tweaked budget repair bill and sent it back to the assembly, which had passed the original version, for its approval on Thursday.
Democrats were outraged. They claimed that Republicans had broken the state’s Open Meetings law, which states 24 hours’ notice should usually be given before a public meeting. “They violated state law,” huffed Mayor Barrett in a radio interview the next morning. “They operated like this is a banana republic.”
“Republicans have made a mockery of democracy,” said Representative Peter Barca, the Democratic leader in the state assembly.
On Thursday, Barca filed a legal challenge, alleging the vote had violated the Open Meetings law. But the case seems to have little chance of succeeding. The senate chief clerk, a nonpartisan official who offers parliamentary and legal advice to the chamber, wrote in an email to senators that the vote “appears to have satisfied the requirements of the rules and statutes.”
Those rules and statutes state that during a special session, under which the legislature has been operating for the past month, the only notice required is a posting on a bulletin board in the capitol. The Republicans did that. And then, just to be safe, they waited two hours, the minimum notice required under the Open Meetings law when it’s “impractical” to wait for 24 hours.
The absurdity of the Democrats’ outrage was too much. They weren’t merely wrong on a procedural point. They were accusing Republicans of “making a mockery of democracy,” operating like a “banana republic,” and, in former labor secretary Robert Reich’s words, conducting a “coup d’état.” All the while, Democrats were hiding in another state trying to prevent a newly inaugurated senate from holding a vote on vital state business.
But in the end, senate Republicans had found a way to vote. The Assembly passed the bill on Thursday. Scott Walker signed it into law on Friday.
And that is what democracy actually looks like.
Stephen F. Hayes is a senior writer, and John McCormack a staff writer, at THE WEEKLY STANDARD.
Stephen F. Hayes and John McCormack
March 21, 2011, Vol. 16, No. 26
Scott Walker was finished.
It was Wednesday, March 9, and Governor Walker had decided to visit the Wisconsin State Capitol before he headed off to give his “Ag Day” speech that afternoon.
Walker figured he had been very patient. Four weeks earlier he had proposed his budget repair bill, and he had the votes to pass it. But one week after that, all 14 Democratic state senators fled to Illinois to deny Republicans the quorum they thought necessary to hold a vote on the legislation. In the days that followed, top Republican legislators and senior aides to Walker spoke regularly with Democrats in an effort to forge a compromise—several times believing that they had reached a tentative understanding that would allow the senate to take up the controversial measure, only to have the agreement collapse. The more this happened the less likely a compromise seemed.
So, shortly before 11 a.m. on Wednesday, Walker addressed a meeting of the senate Republican caucus. It was time to end the standoff and move forward, he said. The world didn’t know it, but Republicans had been given the tools to do that two days earlier, in rulings from three nonpartisan bodies that allowed them to tweak the bill slightly and pass it with only a simple majority present in the senate. But Walker kept his comments general. He said that while Wisconsinites were divided about the wisdom of his proposals, there was widespread agreement that the stalemate had to end.
At a press conference that afternoon, a reporter asked Walker about a letter to him from senate minority leader Mark Miller. Walker had not received the letter—it was released to the media before it was delivered to his office. Miller offered two choices he knew would be rejected and said that if Walker did not meet his demands it would be clear the governor wanted to “keep lines of communications closed.”
It was a final act of bad faith from Miller. A few hours later, Republicans in the state senate moved swiftly to pass the tweaked bill. And two days later, Walker signed it.
It was over.
What happened in Wisconsin has broad implications. The state is only one of many that face massive deficits following years of irresponsible spending—in Wisconsin, $3.6 billion over the next two years. Walker ran for governor last fall on reducing that spending and balancing the budget. He won with more than 52 percent of the vote. So he proposed a budget repair bill to begin that process.
Democrats, who lost not only the governor’s mansion but also both chambers of the state legislature, were powerless to stop Walker from implementing his agenda. Encouraged by the interest groups that help elect them, particularly the unions, these Democrats did the one thing they could to slow him down. It didn’t work. The failure of their effort and the enactment of the reforms will have profound policy and political consequences, not only for Wisconsin but also for the country.
As it was originally proposed, Walker’s budget repair bill had two main components. The first would require public employees paid by the state government to contribute more to the cost of their health care and pensions. The second would limit the collective bargaining power of public employee unions to wages, a change that would allow county and local governments to undertake cost-saving measures without having them blocked by unions.
The unions quickly conceded the first of these two points—at least rhetorically. Union leaders and their allies in the state legislature claimed that public employees would gladly contribute more to their pensions and health care premiums—the 5.8 percent of their salaries on the former and 12.6 percent of the premiums on the latter requested by the governor—if they were allowed to keep all of their collective bargaining rights.
It was a smart public relations move. The unions seemed reasonable and willing to negotiate.
Walker was portrayed in the media as obstinate and too eager to “strip the collective bargaining rights” of Wisconsin’s public employees. His poll numbers reflected the criticism.
But even as they offered to contribute more, unions throughout Wisconsin were rushing through contract extensions that would exempt them from having to pay more towards benefits. In some localities, public employee unions were not only pushing to avoid the increased benefit contributions, they were attempting to force through pay raises.
Unions claimed that they objected chiefly to the limits on collective bargaining, which they said would leave public employees vulnerable to unjust firings and unfair changes to their benefits. The unions also objected to a provision that would allow public employees to choose for themselves whether to join the union and pay dues—a departure from current law. Other states that had implemented these changes had seen union membership drop precipitously, and union leaders understood that the corresponding loss of power and money would be devastating.
So despite the fact that there are dozens of states without collective bargaining for public employees, and that most federal workers do not have collective bargaining rights, and that the increases in benefit contributions contained in the budget repair bill were modest—leaving state employees considerably better off than their private-sector counterparts—union bosses mobilized their resources to fight in Madison. The rallies were huge—with organizational help from the Democratic National Committee and the good fortune that Madison, with its graying radicals and leftist college students, is better prepared for an insta-protest than just about any other city in the country. So for weeks, as Democratic senators hid in Illinois and malcontents camped in the capitol at times literally blocked legislative action, the protesters chanted, “This is what democracy looks like.”*
As soon as the senate Democrats left town, Republicans began to explore their options for passing the budget repair bill without them. There was talk—public and private—about “splitting” the bill to get around the need for a three-fifths quorum. For most, this meant separating the two main provisions of the legislation—the collective bargaining reforms in one bill and the benefit contribution increases in another.
Walker didn’t want to do this. Democrats were accusing him of including the collective bargaining restrictions for no other reason than to weaken unions, saying the collective bargaining provisions had no fiscal impact. On the surface, separating the bills would seem to validate this criticism, although no one knows better than union bosses just how important a tool limiting collective bargaining would be to reducing expenditures on public employees. In fact, school districts and local governments could require changes to their employees’ health benefits only if collective bargaining were curtailed.
So on February 28, senate majority leader Scott Fitzgerald drove across southern Wisconsin to meet with two Democrats who wanted to explore a compromise, Bob Jauch and Tim Cullen. Fitzgerald says that the two had opposed the flight to Illinois in the first place and along with at least one other colleague wanted to find a way to return. They explored several options over hotcakes and sausage at a local McDonald’s. Fitzgerald left without a compromise but with what he believed was a commitment that the Democrats would soon be returning to Madison.
“I met ’em on a Monday,” Fitzgerald recalls. “They called me on a Tuesday saying they’d be in the chamber Wednesday morning. I called them on Wednesday morning to say, ‘Listen, I know you’re coming back, let me call the cops to give them a heads up that you’ll be back.’ And then Senator Cullen said, ‘Well, Fitz, what I told you the other day was true at the time I said it, but we’re not coming back.’ ”
Fitzgerald was frustrated and concluded the Democrats were not negotiating in good faith. He called Cullen and told him to deal directly with the governor’s office.
Walker instructed two of his top aides—chief of staff Keith Gilkes and deputy chief of staff Eric Schutt—to pick up negotiations with the Democrats. “There was continued optimism on our side that something would get done,” says a source close to Walker. The governor would not compromise on the two main components of the bill. But he was willing to make some concessions, such as allowing unions to bargain collectively for wages beyond the rate of inflation, as well as for performance bonuses, mandatory overtime, and class size.
The discussions on March 2, again in a McDonald’s, included the two moderate Democrats, the governor’s staff, and, importantly, Mark Miller, the Democratic leader. When the negotiations ended, Republicans once again believed their colleagues would be returning soon. Gilkes woke Walker up with a phone call at 11:45 p.m. on Wednesday to tell him that they had agreed on “the framework for a deal” that would be finalized in the coming days. The talks continued by phone for several days and culminated in a meeting between Gilkes, Schutt, Jauch, and Cullen on Sunday, March 6, in South Beloit.
The talks went well, and Walker was not surprised when the Wall Street Journal reported that evening that the Democrats would be coming home. Miller, the Democratic leader, told the paper: “We are now looking at returning to the state capitol and requiring the senators to take a vote and have them declare who they’re with—the workers or the governor.”
Jauch, as he had done in meetings with Republicans, pointed to the advanced pregnancy of one state senator in Illinois as a factor in the decision to return. “I think we have to realize that there’s only so much we can do as a group to make a stand,” he said. “It’s really up to the public to be engaged in carrying the torch on this issue.”
But as had been the case all week, the moment Republicans thought the homecoming was imminent, the story changed. State senator Chris Larson, a hard-left legislator, posted a message on his Facebook page saying the Democrats were staying away and claiming, implausibly, that the Journal had quoted his colleagues out of context.
If there were any question that the deal was dead, the Democratic leader dispelled it by issuing a letter Monday to Walker through the media. His missive called for a meeting near the Illinois-Wisconsin border—an absurd request given the regular negotiations that had been quietly taking place for a week.
“He was trying to frame the debate as if we hadn’t been negotiating,” says one source close to Walker. “We’d been taking hits in the media for refusing to negotiate, and we never went public to push back on that so as to not jeopardize the progress we thought we were making. We knew then that Miller was being disingenuous.”
So Republicans got serious about a GOP-only alternative. After one of the breakdowns in negotiations, a week before, Walker had gone to Republicans in the state senate to gauge their willingness to move forward without the Democrats. They were not interested—yet. Since the earliest days of the standoff, Republicans had been engaged in an informal back-and-forth with lawyers from the state’s legislative fiscal bureau, a nonpartisan agency, about their options. On Monday, they formalized their request: How much of the budget repair bill could be passed without a quorum?
They were thrilled with the response—almost all of it. Despite speculation that employee contributions to benefits (what Walker and his staff called the “5-and-12” provisions) would have to be stripped out, the bureau informed Republicans these could remain—meaning both of the main components of the bill could be passed without Democrats. Two other nonpartisan state agencies agreed, the Legislative Council and the Legislative Reference Bureau. The attorneys insisted that the legislation drop a refinancing provision as well as the sale of state-owned power plants. But most of the bill could be moved. Although the 5-and-12 and collective bargaining provisions would have a fiscal impact, they did not require the state to appropriate any money and thus could be included. “Democrats thought we wouldn’t be able to do the 5-and-12 with collective bargaining,” says Walker.
There was more good luck on Monday. In an interview with radio host Charlie Sykes, Milwaukee mayor Tom Barrett, who had lost the governor’s race to Walker last fall, pushed the Republicans to try to move forward without the Democrats. Barrett, working on the mistaken assumption that the 5-and-12 would require a separate vote, said:
Barrett: You could vote on those without those missing senators. You could vote on those tomorrow morning. You don’t need 20 senators to vote on those changes to the collective bargaining. Again, if someone really wanted to end this standoff, the way you would end it is simply have a separate vote.
Sykes: Would you favor that?
Barrett: I would certainly favor that.
So on Wednesday, when Walker spoke to Republicans in the senate, they not only had a legal opinion endorsed by three nonpartisan legal agencies, they also had political cover provided generously, if inadvertently, by the state’s most prominent Democrat.
In a late afternoon vote, senate Republicans passed the tweaked budget repair bill and sent it back to the assembly, which had passed the original version, for its approval on Thursday.
Democrats were outraged. They claimed that Republicans had broken the state’s Open Meetings law, which states 24 hours’ notice should usually be given before a public meeting. “They violated state law,” huffed Mayor Barrett in a radio interview the next morning. “They operated like this is a banana republic.”
“Republicans have made a mockery of democracy,” said Representative Peter Barca, the Democratic leader in the state assembly.
On Thursday, Barca filed a legal challenge, alleging the vote had violated the Open Meetings law. But the case seems to have little chance of succeeding. The senate chief clerk, a nonpartisan official who offers parliamentary and legal advice to the chamber, wrote in an email to senators that the vote “appears to have satisfied the requirements of the rules and statutes.”
Those rules and statutes state that during a special session, under which the legislature has been operating for the past month, the only notice required is a posting on a bulletin board in the capitol. The Republicans did that. And then, just to be safe, they waited two hours, the minimum notice required under the Open Meetings law when it’s “impractical” to wait for 24 hours.
The absurdity of the Democrats’ outrage was too much. They weren’t merely wrong on a procedural point. They were accusing Republicans of “making a mockery of democracy,” operating like a “banana republic,” and, in former labor secretary Robert Reich’s words, conducting a “coup d’état.” All the while, Democrats were hiding in another state trying to prevent a newly inaugurated senate from holding a vote on vital state business.
But in the end, senate Republicans had found a way to vote. The Assembly passed the bill on Thursday. Scott Walker signed it into law on Friday.
And that is what democracy actually looks like.
Stephen F. Hayes is a senior writer, and John McCormack a staff writer, at THE WEEKLY STANDARD.
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