{"id":12984,"date":"2011-03-11T20:41:15","date_gmt":"2011-03-12T01:41:15","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=12984"},"modified":"2011-03-11T20:41:15","modified_gmt":"2011-03-12T01:41:15","slug":"the-morning-after-lessons-from-the-wisconsin-budget-battle","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2011\/03\/the-morning-after-lessons-from-the-wisconsin-budget-battle\/","title":{"rendered":"The Morning After: Lessons From the Wisconsin Budget Battle"},"content":{"rendered":"

\"\"<\/a>At last\u00a0the end game has arrived for the budget bill, after more than three weeks of deadlock in Madison.\u00a0 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\u2019s bill intact.<\/p>\n

Wisconsin\u2019s largest newspaper, the Milwaukee Journal Sentinel, has largely failed to take a coherent editorial position on the budget debate.\u00a0 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.\u00a0 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.\u00a0<\/p>\n

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.\u00a0\u00a0 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.\u00a0 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.\u00a0 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.<\/p>\n

1. Political Accountability<\/p>\n

The Supreme Court has often stressed\u00a0that our system of government only works when elected officials are accountable to the voters.\u00a0 The Court\u2019s 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.\u00a0 For example, in the case of Clinton v. City of New York<\/a><\/em>, the Court struck down the Line Item Veto Act.\u00a0 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.\u00a0 Similarly, in Printz v. United States<\/a><\/em>, the Supreme Court struck down certain provisions of the Brady Bill that required local law enforcement to perform background checks on handgun purchases.\u00a0 Justice Scalia\u2019s 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.\u00a0\u00a0\u00a0\u00a0<\/p>\n

From this perspective, the Walker administration\u2019s budget bill was objectionable, on process<\/em> grounds.\u00a0 The budget bill incorporated fundamental policy provisions into a fiscal bill that was required in order to fund the state government.\u00a0 Both political parties in Wisconsin have engaged in this practice in the past, and it is easy to see why.\u00a0 First, the exigencies of passing a budget, and the desire to keep state government\u2019s services and benefits flowing, work to create time pressures that preclude any reasoned deliberation and debate over the policy changes.\u00a0 Second, the inescapable need to pass a budget bill in some<\/em> form typically creates political \u201ccover\u201d for politicians who can\u00a0vote in favor of the bill in its totality while still claiming to have privately opposed the passage of specific policy provisions.\u00a0 The result of combining basic policy provisions with budgetary provisions, however, is that it allows elected officials to avoid taking responsibility for their votes.<\/p>\n

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.\u00a0 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.\u00a0 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.\u00a0 This move allowed nervous Republicans to vote for the entire bill while maintaining plausible deniability with constituents who opposed the controversial provisions.<\/p>\n

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.\u00a0 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.\u00a0 All of these legislators, Democrat and Republican,\u00a0are now accountable to the voters, who can exercise their power to recall legislators on either side\u00a0as they see fit.\u00a0 Contrary to today\u2019s bizarre editorial <\/a>in the Milwaukee Journal Sentinel, criticizing the recall efforts already underway, the accountability of elected politicians to the voters is a good thing. \u00a0\u00a0\u00a0\u00a0\u00a0<\/p>\n

Procedural tricks designed to protect nervous lawmakers from being held accountable for their votes have no place in a democracy.\u00a0 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.\u00a0 \u201cHandshake\u201d 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.\u00a0 Informal practices should be replaced with strong proscriptions that enforce such separation.<\/p>\n

2. Money Matters (A Lot)<\/p>\n

Even Wisconsin\u2019s Senate Majority Leader admits <\/a>that the collective bargaining provision contained in the budget bill strikes at the Democrats\u2019 fundraising capability.\u00a0 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.\u00a0 Much of the money raised goes to pay for mass media advertising that solicits even more contributions, and for the salaries of professional fundraisers.\u00a0\u00a0\u00a0\u00a0<\/p>\n

Both political parties have become dependent upon collective entities, as opposed to individual contributors, for their financial needs.\u00a0 Unions are the collective entity that provides the Democrats with a large portion of their funding.\u00a0 Corporations are the collective entity that provides the Republicans with the bulk of their funding.\u00a0 Both sides attempt to restrict or eliminate the source of their opponent’s funding, while preserving their own.<\/p>\n

In the context of public employee<\/em> 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.\u00a0 That may be true to a certain extent, but the same point applies to corporations as well.\u00a0 Corporations spend monies for political purposes that would otherwise flow back to the owners of the corporation.\u00a0 In the case of publicly traded corporations, a large percentage of the company\u2019s shareholder-owners are pension funds investing the retirement money of teachers and other government employees.\u00a0 I doubt that the beneficiaries of these pension funds appreciate\u00a0the 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.<\/p>\n

Rather than spend their time and energy plotting to defund their opponent\u2019s main source of campaign dollars, our legislators should enact meaningful campaign finance reform.\u00a0 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.\u00a0 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).\u00a0 We are fortunate to have a national expert on campaign finance reform, Senator Russ Feingold<\/a>, as a Visiting Professor here at Marquette.<\/p>\n

If you include \u201cissue ads,\u201d 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.\u00a0 For some of us, these funds are collected from our paychecks in the form of mandatory union dues.\u00a0 For others, these campaign funds are derived from the cost of goods that we purchase from the dues paying members of Wisconsin Manufacturers & Commerce<\/a> or members of other corporate lobbying groups.\u00a0 A process that forces us to indirectly support the political spending of collective entities merely allows the middlemen to leverage our<\/em> own dollars in exchange for their<\/em> political influence.\u00a0 The public should have the right to decide to cut out the middleman, and to support political candidates directly through publicly funded campaigns.\u00a0<\/p>\n

The roadblock here is the United States Supreme Court.\u00a0 I have already posted on this Blog <\/a>concerning the case of Citizens United v. FEC<\/a><\/em>.\u00a0 I find the majority opinion in that case to be extremely misguided.\u00a0 The Supreme Court has taken an absolutist view of the First Amendment in the context of campaign finance.\u00a0 As a result of the Court\u2019s holding in Citizens United<\/em>, 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\u00a0public funding of candidates.\u00a0 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.\u00a0 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. \u00a0\u00a0\u00a0\u00a0<\/p>\n

3. Legislative Districting Reform<\/p>\n

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 \u201cmoderate middle.\u201d\u00a0 An interesting post from the Washington Post<\/a> 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.\u00a0 The answer, apparently, is that current districts are already gerrymandered to the maximum extent possible.<\/p>\n

I have blogged on this topic before <\/a>as well.\u00a0 The problem is that legislative districts are specifically designed\u00a0to amplify a particular political affiliation among the voters, thereby providing a disproportionate influence to the extreme wing of that party.\u00a0 Politicians elected from politically gerrymandered districts are often warned that they can expect a\u00a0primary 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\u00a0a more moderate approach to the issue.\u00a0 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.\u00a0 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.\u00a0<\/p>\n

If legislative districts were not gerrymandered along political lines, then politicians would have a greater incentive to appeal to moderate voters as opposed to \u201cthe base.\u201d\u00a0 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\u00a0\u201cone of us.\u201d\u00a0 Compromise and progress might even replace gridlock and frustration in both the state and national legislatures.\u00a0 Instead, we find that our elected officials are increasingly polarized.<\/p>\n

In 2004, the Supreme Court had the opportunity to do something about this\u00a0in the case of Veith v. Jubelirer<\/a><\/em>.\u00a0 Instead, the majority of the Court ruled that the nature and extent of\u00a0districts gerrymandered on a partisan basis raised a political question that the Supreme Court could not resolve.\u00a0 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.<\/p>\n

Contrast this result with\u00a0the Supreme Court’s 1962 decision\u00a0in Baker v. Carr<\/em> <\/a>.\u00a0 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\u00a0be challenged in court.\u00a0 As recounted in a recent biography <\/a>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:\u00a0\u201cI 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.\u201d\u00a0 Justice Clark\u2019s vote was the crucial fifth vote in the case.\u00a0 As a result, the\u00a0Supreme Court created a mechanism whereby\u00a0an electoral process that had become petrified and detached from the interests of the voters\u00a0could\u00a0be\u00a0challenged in court, struck down, and reformed. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0<\/p>\n

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).\u00a0 However, this time the only institution capable of reforming the system has decided to sit on the sidelines.<\/p>\n

The democratic process needs certain fundamental characteristics in order to work.\u00a0 These necessary components include: holding legislators accountable for their votes,\u00a0curbing\u00a0the influence of collective entities so that the interests of individuals can take precedence, and\u00a0drawing legislative districts\u00a0in such a\u00a0way that\u00a0candidates can successfully\u00a0appeal to moderate voters.\u00a0\u00a0An electoral process that lacks these three features is doomed to become captured\u00a0by special interests.\u00a0 It may well be that we the voters are incapable of governing ourselves<\/a>, and that my\u00a0belief\u00a0in the democratic process is just a myth.\u00a0 But even\u00a0so, it is a myth worth fighting for.<\/p>\n","protected":false},"excerpt":{"rendered":"

At last\u00a0the end game has arrived for the budget bill, after more than three weeks of deadlock in Madison.\u00a0 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\u2019s bill intact. Wisconsin\u2019s largest newspaper, […]<\/p>\n","protected":false},"author":16,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[80,111,67,33,76,44,24],"tags":[],"class_list":["post-12984","post","type-post","status-publish","format-standard","hentry","category-constitutional-interpretation","category-election-law","category-first-amendment","category-labor-employment-law","category-media-journalism","category-political-processes-rhetoric","category-us-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/12984","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/16"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=12984"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/12984\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=12984"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=12984"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=12984"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}