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View Diary: Stay away for now, WI Dems. It's a trap. (148 comments)

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  •  Bearer of bad news... (2+ / 0-)
    Recommended by:
    Dunvegan, Seneca Doane

    WI Constitution Interpretation - Super Quorums

    Attached is a good read by a law author at Northwestern University.  It appears that the 60% quorum will only be used for appropriations and bills that impose taxes.

    •  Maybe so (7+ / 0-)

      and maybe not so.  My experience in law is that a prospect of this kind is like Schroedinger's Cat -- it doesn't take the final form of being "dead" or "alive" ("unlawful" or "lawful") until you actually observe it happen.  Until then, all you have are possibilities.  That a law professor makes an argument one way is good to know, but it's nowhere near conclusive.

      Were I on the other side, by the way, I'd argue that the measures in Walker's bill should be considered a tax on workers whose salaries are being used to balance the budget -- Walker is in effect saying so! -- and so the 60% supermajority would still apply.  Isn't law fun?  You never know if the cat is really dead until the courts open up the box for you and shows it to you.

      I don't mean this to be dismissive and I hope it doesn't come off that way.  I do thank you for offering the link, and it should certainly be considered.

      Unplug the Koch machine! It's swallowing people's money!

      by Seneca Doane on Fri Mar 11, 2011 at 08:52:23 AM PST

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      •  Form and substance (3+ / 0-)
        Recommended by:
        fumie, Seneca Doane, elwior

        It's an interesting issue, isn't it?  Especially when we think about the way tax law tends to look at the underlying, economic substance of a rule or a transaction and not merely to the way that proponents or beneficiaries seek to characterize it.  It's hard to see how a bill that by itself has the effect of altering a budget to the point where 1500 layoff notices can be immediately rescinded when it's passed is not, in economic substance, either an appropriation or a tax measure.  

        And while this doesn't look like a situation where the ideas underlying rules of evidence are exactly central, I can't help thinking that one could have an interesting time exploring the doctrine of the admission against interest.  Doesn't it seem at least intuitively plausible that at some point, all those public declarations that this is a core part of the budget bill should have a certain probative force about how it should be characterized for legislative purposes?  And that if so, a constitutional provision should not be defeasible simply by carving the overall bill into legislatively-convenient pieces?

        It's not like the step transaction doctrine is exactly new, after all.  Why shouldn't it apply when a legislature is trying to evade the requirements of its own constitution?

        Or, as you say, isn't law fun?

        •  I think that Walker's statements would be (0+ / 0-)

          considered absolutely probative by any court assessing what quorum should have applied.  Either he's doing this intentionally or he's dumber than a pancake.

          Law sure is fun, except when you have to earn a living at it!

          Unplug the Koch machine! It's swallowing people's money!

          by Seneca Doane on Fri Mar 11, 2011 at 09:27:03 AM PST

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      •  What WI's guv has done is illegal. (7+ / 0-)

        We know it. He knows it. The legislators know it. Many of the people know it.

        What emboldens him? A clear legislative majority and a fixed state supreme court and a fixed SCOTUS. Which means that he can break WI open meeting laws, break any law for that matter, and his actions will be upheld. Illegally. Unconstitutionally.

        The excuses (emergency, yadda yadda yadda) are all BS. I'm a former elected official and know the meetings law as it was strictly enforced even for the simplest of matters. I held off meetings for 24 hours because I couldn't justify them as an emergency -- and they were posted. We usually published notices of all meetings weekly in the paper.

        There was no emergency. There was no need for a special session. There wasn't 2 hours notice provided, let alone 24.

        He's doing it because he can get away with it. Listen to that interview with "Koch." I'm former public sector employee (administrator). That was a job interview, an "I'm your man" babble. That tells us who is really pulling the strings. It's a power grab of the highest degree and look to see walker on the r ticket in 2012. It doesn't matter if he has a high disapproval rating and is owned by WI Right to Life and the corporations, along with Koch. There's the sense you're wondering about.

        The legal implications are fully understood as well as the pragmatic realities: IOKIYAR.

        We're going to fight it as long as we need to.

        You can always count on Americans to do the right thing - after they've tried everything else. -- Sir Winston Churchill

        by bleeding heart on Fri Mar 11, 2011 at 09:24:52 AM PST

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      •  further on this... (1+ / 0-)
        Recommended by:
        Seneca Doane

        Further to this,

        WI Constitution Article 8, Section 8

        Vote on fiscal bills; quorum. SECTION 8.
        On the passage in either house of the legislature of any law which imposes, continues or renews a tax, or creates a debt or charge, or makes, continues or renews an appropriation of public or trust money, or releases, discharges or commutes a claim or demand of the state, the question shall be taken by yeas and nays, which shall be duly entered on the journal; and three−fifths of all the members elected to such house shall in all such cases be required to constitute a quorum therein.

        The paradox is that nearly every bill proposed, given this line of thinking, would have some financial impact on someone or something which would invoke the requirement of the super quorum section.  Given the 1971 citation of the AG Robert Warren, the restrictive precedent of prior use, and the current reign of the ubercon Prosser WI Supreme Court that passage of the benefit cutback of the WI employees as anything but a reduction in compensation of benefits would be vastly presumptuous.

        If I put a cat into a steel box with a hand grenade and  it explodes, there is NO paradox.  I can pretty much figure out what its fate was, much like the lawyers in front of a WI court proposing that the unilateral cutback of benefits was a tax. I admit that our effete system of laws does exhibit arbitrarness and capriciousness, but not this.

        As far as the foolish Walker, it would take his naivete and lack of political comprehension to actually say that no funding would be further needed to cancel the layoff slips.  Well, what happen to the need for the  requirement of $135MM to pay the stub period tab until the next biennial budget?  Where was this money destined for??      

        •  Nicely argued (0+ / 0-)

          I'm not sure that this is a "hand grenade," but I'm not equipped to face you down on Wisconsin precedent without doing more research than I'm gonna.  It appears to be, to take the first example that comes to mind, imposing a new financial obligation on unions to spend money to collect their own dues manually, and is ostensibly done for purposes of generating revenue.  If you're saying that that can't even colorably be argued to be a tax on unions, then all I can say is that I'd have to be convinced.

          I applaud your last paragraph without reservation.

          Unplug the Koch machine! It's swallowing people's money!

          by Seneca Doane on Fri Mar 11, 2011 at 11:10:38 AM PST

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        •  releases, discharges or commutes a claim or demand (0+ / 0-)

          ...of the state.

          Like, for instance, the demand that the state collectively bargain with its public employees?

          "I set up a stage, put up a few banners, stuck a podium up there, and started shouting 'Yes we can.' Next thing you know there's 150,000 people here." -Joe

          by Geiiga on Fri Mar 11, 2011 at 12:27:59 PM PST

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    •  Blocking any budget bills still Stops Walker. (5+ / 0-)

      I considered the "what if on collective bargaining" a while back.
      I know it is a burden for the Wisconsin 14 to stay away, but this is the sand in the gears that gives enough time for a court to intervene, or to get 8 recall elections certified.
      Scott Walker can bring Wisconsin to its knees with his draconian tactics, but he is signing the termination notice for the GOP in the process.
      A conflict has many battles and this one is just getting started.
      Every ugly thing Walker and his thugs does or said needs to be held in front of a TV camera with thousands Chanting "Shame".

      Those who can make you believe absurdities can make you commit atrocities. Voltaire

      by leftover on Fri Mar 11, 2011 at 09:03:40 AM PST

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