Best of the Blogs: The Mess in Madison

Posted on Categories Labor & Employment Law, Media & Journalism, Political Processes & Rhetoric, Wisconsin Law & Legal System

This month’s Best of the Blogs feature takes a look at the budget debate in Madison.  In my opinion, it is myopic to focus solely on the budgetary aspects of the ongoing debate.  This is a raw political struggle, in which Governor Walker has attacked the primary source of campaign funding for Democrats.  The debate over the biennial budget is small potatoes to the leaders of the Democratic Party.  They perceive this bill as nothing less than an existential attack on their ability to raise funds (and therefore buy television advertising) in an amount sufficient to elect candidates in a closely divided state.

If anything, this current fight is only round one, with a second partisan fight over legislative re-districting yet to come.  The Voter ID bill, which previously was viewed by Democratic leaders as a dangerous assault on their electoral power, now in comparison seems to be a minor inconvenience.  While it is always entertaining to watch two political parties seek to destroy each other, one can’t help but feel that someone in Madison should actually be focused on governing the State.  Both Governor Walker, who picked this partisan fight, and the Democrats, who chose to grind government to a halt in order to defend partisan interests, share equal blame in my eyes.

Who will win this fight?  At this moment, public opinion polling shows broad opposition to the idea of ending collective bargaining rights for public employees.  Joe Conason has a liberal take on the polling data in this post at RealClearPolitics.

Over time, one might expect that public pressure in favor of collective bargaining rights might cause Governor Walker to compromise.  However, much money is being spent on advertising to sway public opinion, and many media outlets have reported on this story in ways that seem designed to influence public perception.  It is possible (and intended) that these efforts will eventually cause public opinion to shift.  As usual, George Lakoff has an interesting take on how the language that both sides are adopting in this political debate may ultimately end up influencing the political outcome as much as (if not more than) the merits of the debate.   He writes at the Huffington Post.  Visiting Assistant Professor Rick Esenberg takes issue with Lakoff’s attempt to frame the debate in this post over at Shark and Shepard.  He sees nothing noble in the actions of the Democratic 14.  Meanwhile, David Sirota at Salon has a post that takes issue with the whole idea that any government in possession of the taxing power can ever truly be called “broke.”  Read too much of this kind of analysis, detailing the way in which words influence our political choices, and you are likely to conclude that George Orwell’s novel 1984 should be shelved in the non-fiction aisle.            

Several legal questions have arisen among all of the partisan bickering.  Mike Ivey at the Capital Times looks at the manner in which the budget bill transfers reserves from the segregated health insurance fund, and uses them to offset costs elsewhere in the budget, and asks whether this part of the bill is illegal.  It does look kind of like the transfer of segregated funds by Governor Doyle in the 2009 budget that was ruled illegal, although in this case the offsetting costs are at least related to health care.  Which is more important in the eyes of the law, that the segregated funds are not being used for their intended purpose, or that the alternative use of the funds is similar to the intended purpose?

Milwaukee City Attorney Grant Langley believes that the Budget bill unconstitutionally interferes with home rule.  As Associate Professor Paul Secunda explains at Workplace Prof Blog, the Milwaukee Home Rule Charter places restrictions on the state government’s ability to alter pension rules adopted by the City.  Rick Esenberg questions Langley’s analysis in a post here.

The most recent legal controversy concerns whether the State Senate has the power to order that Democratic Senators be taken into custody if they are found within Wisconsin borders.  At first blush, the State Constitution would seem to provide explicit immunity from arrest for members of the state legislature.  However, Jim Lindgren at the Volokh Controversy has parsed through the history and the precedent in posts here and here.  He has convinced me that the constitutional immunity does not apply in this case.  Elie Mystal is worried that an arrest is possible, and in this post at Above the Law suggests that Republicans might employ “Dog” the Bounty Hunter to track down the missing Democrats.  My advice to Dog:  don’t do anything without an arrest warrant from a judge.    

Finally, Paul Secunda wrote an opinion piece outlining the policy arguments in favor of our society’s recognition of collective bargaining as a legal right.  It appears in the Capital Times here.  I tend to agree with Professor Secunda that collective bargaining advances both societal goals and individual human rights.  Actually, I have no choice but to agree.  My father was a longtime member of the Maryland State Teachers Union.

4 thoughts on “Best of the Blogs: The Mess in Madison”

  1. The tactic of the Democratic Senators reveals an interesting dimension of the role of supermajority voting requirements, whether in Wisconsin or in the US Senate with its filibuster rule. As a general matter, I oppose such antidemocratic requirements. But, I am not sure there is all that much difference between the Democratic Senators in Wisconsin heading to Illinois to block a vote, on the one hand, and the day-by-day frustration of the serious work of the US Senate under its filibuster rules. Rules are there to be used, and politicians will use them to their advantage.

  2. Thank you professor Fallone, for your balanced presentation of this issue.

    I don’t understand how the Governor and the Senate Democrats are equally to blame for the partian debacle when, as you say, it is the governor who picked this fight? Do the Democrats have a right to defend themselves, their allies, and their union constituents when they are attacked politically, or should they have just let Scott Walker push this bill through in a couple of days?

  3. Martin:

    In my opinion, the Democrats were right to depart and prevent the Senate from convening a quorum. However, once the public had focused on the collective bargaining provision, and Wisconsin voters could hold the Republicans accountable for their actions, then at that point the Democrats had accomplished about all that they could reasonably expect to accomplish. The Democrats advanced no purpose in dragging things out beyond the second week.

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