Why they don’t want a do-over
March 26, 2011 Gary Porter
Wallace Sherlock dons his academic robe on the King St. steps to the state Capitol in Madison on Saturday as part of ongoing protests against Gov. Scott Walker’s recently passed budget-repair bill, which limits collective bargaining for many public employees. Sherlock and other teachers from the University of Wisconsin-Whitewater were delivering a letter and resolution denouncing the measure, which remained enmeshed in legal disputes Saturday.
Republican legislative leaders have been told repeatedly that a do-over would remove – once and for all – any legal doubts over how they passed Gov. Scott Walker’s budget-repair bill, which took away the ability of most public employees to collectively bargain over anything but cost-of-living pay raises.
The first do-over advice came from Dane County Circuit Judge Maryann Sumi, who issued an order on March 18 preventing the bill from being published – the final act that would have turned it into a new law. The bill was published anyway Friday by the Legislative Reference Bureau, which was not party to Sumi’s decision.
Next, Dane County District Attorney Ismael Ozanne said a do-over would make his civil suit, which claims Republican legislators violated the Open Meetings Law when they rushed the bill through the Legislature, go away. Lawyers for public employees made the same point Wednesday.
Ozanne, for example, told the Court of Appeals: “Finally, and although obvious, it must be stated that the Legislature has a ready remedy, which is available to it at any time – namely, to start over and re-enact the substance of (the budget-repair bill) by following the public notice, public access and other requirements of the Open Meetings Law.”
No, Republican leaders insist, there’s no need for a do-over. It was done right the first time. This isn’t a simple golf game among friends, where you laugh, shout “mulligan” and play a second shot.
One district attorney and judge “don’t get to tell the Legislature when and how to do our jobs,” said Andrew Welhouse, spokesman for Senate Majority Leader Scott Fitzgerald.
“The state constitution provides that the Senate gets to determine its own rules for its business, which were followed, so we aren’t planning to do the process again when it was done correctly the first time,” Welhouse said.
Eventually, Republicans predict, they’ll win.
But the Republicans’ separation-of-powers argument is the official version of why there will be no do-over.
There are other, practical reasons there is no desire on the part of the 69 Republican legislators – 51 in the Assembly and 18 in the Senate who voted for Walker’s changes – to replay the month between Feb. 11 and March 11. Walker introduced the bill on Feb. 11; he signed it into law on March 11:
• Hundreds of thousands – as many as 1 million, according to Capitol Police Chief Charles Tubbs – of angry protesters on both sides of the bill shouted, chanted, sang and fought it for weeks. A do-over would restart the protests and again attract the world’s attention.
• The 69 Republican lawmakers would like to avoid again being personally threatened, being unable to move freely in the Capitol and needing police escorts.
• It took more than 82 hours of debate – 17 hours by the Joint Finance Committee and more than 65 hours in the Assembly – to pass the bill the first time. A do-over would take much longer, since Senate Democrats would show up this time and argue it for hours – or days.
• Republican lawmakers have other things to do – refinance state debt and make enough spending cuts to fix a $137 million deficit in the year that ends on June 30, for example. And statewide public hearings by the Joint Finance Committee will soon start on Walker’s overall 2011-’13 budget.
Republican legislators also may like their odds if the state Supreme Court decides Ozanne’s suit. The Court of Appeals on Thursday asked the Supreme Court to take the case, but four of the seven justices must vote to do so.
One of the court’s four conservative justices, former Republican Assembly Speaker David Prosser, is up for re-election on April 5.
Prosser served with Walker in the Assembly in the 1990s and with three of the lawmakers – Senate President Mike Ellis, Senate Majority Leader Scott Fitzgerald and Assembly Democratic Leader Peter Barca – named in Ozanne’s suit.
Despite those connections, Prosser told Journal Sentinel editors and reporters Thursday that he expects to participate when the court considers Ozanne’s lawsuit. “I’m a judge,” he said. “I hear cases.”
Steven Walters is a senior producer for WisconsinEye, the Madison-based nonprofit public affairs channel, and a former Madison bureau chief for the Journal Sentinel. The opinions expressed are his own. E-mail firstname.lastname@example.org