Madness in Madison – That Just Happened, Part II

By YeOldeScribe ~ March 26th, 2011 @ 7:02 pm took the day off yesterday because our writer was sick in bed, but we’re back today with a (somewhat) breaking news story. (We’ll return to our scheduled post on Libya sometime next week. Our apologies for those expecting that post, it will come, but breaking news always takes precedence for us.) Last week, we correctly reported that the law could not go into effect until it was published by Secretary of State Doug La Follette. So today’s news story came to us as a bit of a shock.

Here’s the gist of what happened: On Friday, Republican Senate Majority Leader Scott Fitzgerald requested that the Legislative Reference Bureau publish the bill. For reasons unbeknown to us, the LRB complied, and published the bill.

Now, what does that mean? Depends on who you ask. Or, to be more precise, depends on which party you ask.

Gov. Walker hasn’t specifically commented on the publishing yet, but he did release a statement saying that he will “carry out the law as required,” which means that he believes that the bill has become a law. Sen. Fitzgerald went a step further, saying “The LRB published the law, so it’s the law of the land right now.”

So should the Budget Repair Bill become law now, given yesterday’s developments? No. This back-door deal by Wisconsin Republicans is yet another attempt to give a giant middle finger to Democrats, the judiciary, and democracy as a whole. Their actions have been and continue to be morally reprehensible and downright disgraceful to the once-great state of Wisconsin, and the very idea of representative democracy as a whole.

Let’s break this down. First, the LRB has no right to publish the bill, and their action today means nothing. We had to do some digging to find out what Wisconsin’s LRB even does, but when we took a closer look at the legal info on the LRB’s website, we found the following:

“The Legal Services section of the LRB includes approximately 20 attorneys, each with specific subject matter expertise, who draft all proposed legislation; prepare analyses of all bills, joint resolutions, and resolutions; provide legal advice to legislators and state agencies; assist the legislature in making procedural rule determinations; and staff conference committees.”

Two important things to note: First, according to their own statement, the LRB never should have published this bill as law, because that’s not what it is. The bill doesn’t become law until Secretary of State La Follette publishes it in the official state newspaper, the Wisconsin State Journal. La Follette never asked the WSJ to do that (because he is under court order not to do so) and the WSJ never published the bill as law. So it’s not a law. It’s a bill. The LRB doesn’t get to decide when bills become law. Their job is to draft proposed legislation, prepare analysis of bills/resolutions, provide legal advice, and assist in making procedural rule determinations, per their website’s statement above. Declaring a bill a law doesn’t fall into any of those categories. They had no authority to make that determination, and shame on them for doing so. Second, even if they legitimately had the authority to declare the bill a law, it still doesn’t become official yet – even according to the LRB’s own director. From Legislative Reference Bureau Director Stephen Miller:

“I don’t think this act makes it become effective. My understanding is that the Secretary of State has to publish it in the (official state) newspaper for it to become effective.”

Swing and a miss, Republicans. This brings us to point two: The Wisconsin Constitution is clear that bills don’t become law until the Secretary of State says so. Republicans are citing Wisconsin Statutes that “requires the Reference Bureau to publish legislation within 10 days of enactment.” Every single dictionary definition that we can find says that enactment refers to “establish by law”, and from the Merriam-Webster Legal Dictionary: “something (as a law) that has been enacted.” The important thing to note here is the idea that enactment refers to laws – something the Budget Repair Bill is not (until La Follette publishes it). This is just another reason why we don’t understand why Miller and the LRB decided to publish the “law”, because even according to Miller’s own words, the bill isn’t law yet. Miller isn’t the only one who is saying La Follette’s action is the only one that counts – the Wisconsin Government’s own Legislative Council agrees, according to a statement from Staff Attorney Scott Grosz. Finally, Judge Maryann Sumi – the judge who issued the restraining order against La Follette – also said that the bill doesn’t become a law until La Follette signs it. From a discussion on her written decision on March 18th (as recorded by the court, making it official), “The next step in implementation of that law would be the publication of that law by the secretary of state. He is restrained and enjoined from such publication until further order of this court.”

Which brings us to the third argument. Republicans are claiming that Sumi’s ruling prevented La Follette and La Follette alone from publishing the bill, and that the decision handed down did not include the LRB. Said Sen. Fitzgerald, “Every attorney I have consulted said this will now be law.” First, it appears to us that Fitzgerald clearly didn’t consult his own attorneys, as Staff Attorney Scott Grosz from the Legislative Council believes that the bill is still in fact a bill and not law, as sourced above. Second – and more importantly – Fitzgerald must not have been paying close attention to Judge Sumi’s decision, because just before the quote we referenced above, Sumi also stated, “I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10.” Note that Sumi doesn’t specify that her decision only applies to La Follette – she says the implementation of the bill will be stopped. Period. This means the LRB falls under the jurisdiction of her ruling, and their publishing of the Budget Repair Bill as law was as illegal as it was stupid.

So we’ve established three different ways why the Budget Repair Bill remains a bill and not a law. Now, it’s time to dole out some punishment for those responsible for Friday’s judicial reprehensiveness. First off, we’ve been very critical of Wis. Gov. Scott Walker in the past, and he’s clearly not innocent here – especially saying he’s going to enforce a law that doesn’t exist yet. But let’s make one thing clear – Walker didn’t ask the LRB to publish the bill. That request was made by Sen. Fitzgerald alone. Fitzgerald is also the only person who has said in so many words that the bill becomes law now. It’s important to note that the senator even says that he did not consult Gov. Walker about taking this route. So for as harsh as we’ve been on Walker, we’d currently like to direct our seething anger toward Senate Majority Leader Fitzgerald for – on his own – coming up with an illegal end-around to the judiciary’s decision so he could get what he wanted. Sure, he claims that he’s acting in the best interest of the people of Wisconsin, saying that he’s “only seeking finality and resolution so local governments have certainty in knowing what the law is as they proceed with making budget decisions.” If PolitiFact had a lower ranking than Pants on Fire, we’d like to think they’d use that here. Fitzgerald doesn’t care about the plight of Wisconsin workers and never has – if he did, he wouldn’t be in support of this bill, and he wouldn’t be trying to steamroll it through a congressional blockade and a judicial restraining order. Fitzgerald counters by saying “It wasn’t a secret. I think they left the door open for this.” Quick show of hands – who heard of the Legislative Reference Bureau before today (or even knew it existed)? Anyone? Nope. Senate Minority Leader Mark Miller correctly pointed out the truth when he said, “Their actions continue to show a disregard not only for people’s rights and open government, but also the authority of the courts.” Madison Attorney Lester Pines minced even fewer words when he said, “It seems to me they must be just offended that their power is questioned by anybody.” Finally, if publishing the law in the LRB was all the Republicans needed to do to make it legal, why didn’t they do it right away? Why did they have to wait for the courts to bar La Follette from publishing the bill if all they had to do was to get the LRB to do it? And if the LRB is the authority that declares bills to be laws (which we’ve established it’s not), why didn’t this come up before today? Why weren’t media pundits or even Republicans themselves discussing this option? No one knew about this tactic because it doesn’t exist. It’s illusory. It’s unethical. And – most importantly – it’s illegal.

Every single time the Budget Repair Bill has gained momentum, it’s done so in back rooms, behind closed doors, through methods Republicans call unconventional and the rest of us correctly call illegal. First, it passed the Assembly – even though a significant number of representatives (mostly Democrats) didn’t get to vote. Then, it made it through the Special Conference Committee, which was formed illegally, illegally barred any amendments or discussion on the bill, and took all of four minutes to present and vote on, illegally ending the session while a member of the committee was still speaking against the bill after he was acknowledged by the committee chair. It then passed the Senate, while no Democrats (or 42% of that chamber’s members) weren’t there. Now, it has been illegally published by a bureau that has no legal standing, and is being illegally interpreted as law by Republican Senators and the Republican Governor. We can’t think of a way this bill could possibly be more illegal, unless it was passed by the Confederate States of America.

Legally, yesterday’s actions should mean nothing. We’ll have to wait and see until at least later this week to look at how the three different branches of government – legislative, executive, and judicial – evaluate the bill, and what the competing political parties have to say. As always, we promise to keep you updated on the progressive viewpoints of any political happenings. Until then, we hope rationality and constitutionality will reign supreme in the state of Wisconsin once again, and the black stain that Walker, Fitzgerald and their Republican cronies have left on this great state will one day (soon) be removed.

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