The Morning After: Lessons From the Wisconsin Budget Battle

Posted on Categories Constitutional Interpretation, Election Law, First Amendment, Labor & Employment Law, Media & Journalism, Political Processes & Rhetoric, U.S. Supreme Court

At last the end game has arrived for the budget bill, after more than three weeks of deadlock in Madison.  Indeed, it was obvious to everyone that the impasse could not persist, and that the only two options available were either a compromise (unlikely) or the eventual adoption of Governor Walker’s bill intact.

Wisconsin’s largest newspaper, the Milwaukee Journal Sentinel, has largely failed to take a coherent editorial position on the budget debate.  In fact, the entire local media, both print and television, seem to have bent over backwards in order to appear sympathetic to the arguments of both sides.  In this regard, the local media seems to see its role as something akin to the role of an arms dealer during a civil war: issue statements generally supportive of both sides and hope to sell your product to the widest possible audience. 

However, I believe that there are larger lessons to be learned from the budget battle, and that the issues raised over the last three weeks transcend partisanship.   Even after the dust settles on the particular aspects of the budget bill that have engendered controversy (collective bargaining rights, public school funding, control over state health care programs, etc.), there will remain three broad issues that call out for reform, both in Wisconsin and nationwide.  Everyone in Wisconsin (and that includes Democrats, Republicans, and Independents) shares an interest in preserving a system of government in which it is the voters of the state who hold the ultimate political power.  Overlooked amidst the partisan bickering between Governor Walker and the Democratic 14 are serious fault lines that threaten the long term stability of the democratic process.

1. Political Accountability

The Supreme Court has often stressed that our system of government only works when elected officials are accountable to the voters.  The Court’s interpretation of the U.S. Constitution has elevated the idea of political accountability into a basic structural component of both the separation of powers and federalism.  For example, in the case of Clinton v. City of New York, the Court struck down the Line Item Veto Act.  Justice Kennedy wrote a separate concurrence stressing the manner in which the technique of the line item veto impermissibly allows Congress to avoid being held politically accountable for its spending decisions.  Similarly, in Printz v. United States, the Supreme Court struck down certain provisions of the Brady Bill that required local law enforcement to perform background checks on handgun purchases.  Justice Scalia’s majority opinion stressed the manner in which the Brady Bill acted to shift unpopular enforcement responsibilities away from the federal government and onto the shoulders of state officials.    

From this perspective, the Walker administration’s budget bill was objectionable, on process grounds.  The budget bill incorporated fundamental policy provisions into a fiscal bill that was required in order to fund the state government.  Both political parties in Wisconsin have engaged in this practice in the past, and it is easy to see why.  First, the exigencies of passing a budget, and the desire to keep state government’s services and benefits flowing, work to create time pressures that preclude any reasoned deliberation and debate over the policy changes.  Second, the inescapable need to pass a budget bill in some form typically creates political “cover” for politicians who can vote in favor of the bill in its totality while still claiming to have privately opposed the passage of specific policy provisions.  The result of combining basic policy provisions with budgetary provisions, however, is that it allows elected officials to avoid taking responsibility for their votes.

The number of significant policy changes contained within the Wisconsin budget bill is sufficient to lead to the conclusion that the entire bill was designed to allow Republican legislators to avoid political accountability.  A false sense of urgency was created, using the fiscal needs of the government as an excuse, and the vote on the bill was fast tracked in order to limit public debate.  In addition, items that clearly would have generated a storm of controversy if introduced as a stand-alone bill were quietly buried in the budget bill.  This move allowed nervous Republicans to vote for the entire bill while maintaining plausible deniability with constituents who opposed the controversial provisions.

It is only due to the actions of the Democratic 14, who left the State in order to deny the Senate a quorum, that the issue of collective bargaining rights for public employees was separated from the overall budget provisions in the minds of the voting public.  As a result, and much to their chagrin, individual Republican legislators were forced to take a position on the issue in the face of public scrutiny.  All of these legislators, Democrat and Republican, are now accountable to the voters, who can exercise their power to recall legislators on either side as they see fit.  Contrary to today’s bizarre editorial in the Milwaukee Journal Sentinel, criticizing the recall efforts already underway, the accountability of elected politicians to the voters is a good thing.      

Procedural tricks designed to protect nervous lawmakers from being held accountable for their votes have no place in a democracy.  The Supreme Court is correct: the desire of the Framers to place the ultimate political power in the hands of the voters is meaningless unless political accountability is rigorously enforced.  “Handshake” agreements between the two political parties, whereby they make vague promises to keep policy proposals out of the biennial budget, are too easy to avoid.  Informal practices should be replaced with strong proscriptions that enforce such separation.

2. Money Matters (A Lot)

Even Wisconsin’s Senate Majority Leader admits that the collective bargaining provision contained in the budget bill strikes at the Democrats’ fundraising capability.  The vast sums of money needed to run a modern statewide campaign (primarily due to the cost of mass media advertising) has created an arms race between the two political parties in which both sides endeavor to raise ever increasing sums of cash.  Much of the money raised goes to pay for mass media advertising that solicits even more contributions, and for the salaries of professional fundraisers.    

Both political parties have become dependent upon collective entities, as opposed to individual contributors, for their financial needs.  Unions are the collective entity that provides the Democrats with a large portion of their funding.  Corporations are the collective entity that provides the Republicans with the bulk of their funding.  Both sides attempt to restrict or eliminate the source of their opponent’s funding, while preserving their own.

In the context of public employee unions, some people have complained that the unions are funded by taxpayer-supported salaries, and that these unions merely recycle those dollars to advance self-interested objectives that many taxpayers oppose.  That may be true to a certain extent, but the same point applies to corporations as well.  Corporations spend monies for political purposes that would otherwise flow back to the owners of the corporation.  In the case of publicly traded corporations, a large percentage of the company’s shareholder-owners are pension funds investing the retirement money of teachers and other government employees.  I doubt that the beneficiaries of these pension funds appreciate the fact that profits in companies that they own are being used to fund political speech (oftentimes hostile towards unions) rather than being paid out to them as dividends.

Rather than spend their time and energy plotting to defund their opponent’s main source of campaign dollars, our legislators should enact meaningful campaign finance reform.  This would entail limitations on the disproportionate influence exerted by collective entities on both sides, and force candidates for office to rely more heavily on individual contributions.  Campaign finance reform would also make public financing available for candidates who wish to forego contributions from collective entities (thereby allowing the emergence of candidates who are not financially beholden to either unions or corporations).  We are fortunate to have a national expert on campaign finance reform, Senator Russ Feingold, as a Visiting Professor here at Marquette.

If you include “issue ads,” such as the message advertising that Governor Walker alluded to in his phone call with the pseudo-David Koch, the general public already ends up footing most of the bill for campaign spending by collective entities.  For some of us, these funds are collected from our paychecks in the form of mandatory union dues.  For others, these campaign funds are derived from the cost of goods that we purchase from the dues paying members of Wisconsin Manufacturers & Commerce or members of other corporate lobbying groups.  A process that forces us to indirectly support the political spending of collective entities merely allows the middlemen to leverage our own dollars in exchange for their political influence.  The public should have the right to decide to cut out the middleman, and to support political candidates directly through publicly funded campaigns. 

The roadblock here is the United States Supreme Court.  I have already posted on this Blog concerning the case of Citizens United v. FEC.  I find the majority opinion in that case to be extremely misguided.  The Supreme Court has taken an absolutist view of the First Amendment in the context of campaign finance.  As a result of the Court’s holding in Citizens United, lawsuits have been filed challenging not only legislation seeking to limit the influence of collective entities on the political process, but also challenging the constitutionality of laws that provide for the public funding of candidates.  In essence, the voting public is being told that we are not allowed to regulate the electoral process, and that we have no choice but to accept the status quo.  I continue to maintain that the First Amendment was not intended to provide collective entities with a constitutional right to participate in the electoral process.     

3. Legislative Districting Reform

The third and final area that calls for reform involves the manner in which legislative districts have been drawn so as to amplify the power and influence of the extremes of both major political parties at the expense of the “moderate middle.”  An interesting post from the Washington Post blog looks at the congressional districts in Wisconsin, and considers whether the state legislature can re-district in order to increase the number of safe Republican seats.  The answer, apparently, is that current districts are already gerrymandered to the maximum extent possible.

I have blogged on this topic before as well.  The problem is that legislative districts are specifically designed to amplify a particular political affiliation among the voters, thereby providing a disproportionate influence to the extreme wing of that party.  Politicians elected from politically gerrymandered districts are often warned that they can expect a primary challenge if they stray too far from the extreme position, even though a majority of the voters who self-identify with that party would prefer a more moderate approach to the issue.  Superior organization and fundraising, coupled with lower turnout numbers in primary elections, combine to give a small number of energized activists the ability to mount successful challenges to the incumbent from the extreme wing of the party.  However, this is only possible because districts are drawn on a partisan basis so that the victor of the primary is highly likely to win the general election. 

If legislative districts were not gerrymandered along political lines, then politicians would have a greater incentive to appeal to moderate voters as opposed to “the base.”  Politicians might even recognize that their constituents hold a variety of different views on the issues, instead of dividing the electorate into two categories: opponents versus “one of us.”  Compromise and progress might even replace gridlock and frustration in both the state and national legislatures.  Instead, we find that our elected officials are increasingly polarized.

In 2004, the Supreme Court had the opportunity to do something about this in the case of Veith v. Jubelirer.  Instead, the majority of the Court ruled that the nature and extent of districts gerrymandered on a partisan basis raised a political question that the Supreme Court could not resolve.  As a result, the only way that partisan gerrymandering will end is if the politicians elected via that very process decide on their own to end it.

Contrast this result with the Supreme Court’s 1962 decision in Baker v. Carr .  There, the Court ruled that state legislative districts that resulted in some voting districts having greater representation than others did not present a political question and could therefore be challenged in court.  As recounted in a recent biography of Justice Brennan by Seth Stern and Stephen Wermiel, Justice Clark, who had been tasked with researching alternative ways other than litigation in which the advocates for electoral reform might accomplish their objectives, concluded in a note to his colleagues: “I am sorry to say that I cannot find any practical course that the people could take in bringing this about except through the federal courts.”  Justice Clark’s vote was the crucial fifth vote in the case.  As a result, the Supreme Court created a mechanism whereby an electoral process that had become petrified and detached from the interests of the voters could be challenged in court, struck down, and reformed.             

We are at a similar impasse today with legislative districts that are drawn in order to favor the two extremes of the political spectrum at the expense of the majority of the voters (who reside well within the ideological middle).  However, this time the only institution capable of reforming the system has decided to sit on the sidelines.

The democratic process needs certain fundamental characteristics in order to work.  These necessary components include: holding legislators accountable for their votes, curbing the influence of collective entities so that the interests of individuals can take precedence, and drawing legislative districts in such a way that candidates can successfully appeal to moderate voters.  An electoral process that lacks these three features is doomed to become captured by special interests.  It may well be that we the voters are incapable of governing ourselves, and that my belief in the democratic process is just a myth.  But even so, it is a myth worth fighting for.

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