When Wisconsin Governor Scott Walker and his Republican allies in the state legislature panicked in the face of mass demonstrations opposing their attempt to strip state, county and municipal employees and public school teachers of their collective bargaining rights, they hurriedly called a legislative conference committee and then the state Senate into action and passed a version of the law. The Republicans wanted to act quickly, on a cold night when Democratic senators were outside the Capitol and the crowds were at home. But they neglected to honor the most basic principle of open government in a state that has prided itself for its commitment to transparency: the people are their representatives must be given proper notice when the legislature is in session and acting on matters of general concern.
That failure to respect not just the state’s Open Meetings law but the state’s historic commitment to open and honest governance tripped Walker and his compatriots up.
They did not pass their law honorably or appropriately. And that has led one of the state’s most respected jurists to rule that the collective bargaining bill the governor signed in early March is null and void.
Dane County Judge Maryann Sumi, who two months ago issued a restraining order that blocked implementation of the law, on Thursday ruled that Republican lawmakers committed a “clear and convincing” violation of the state’s Open Meetings law when they rushing the measure to the governor’s desk.
“This case is the exemplar of values protected by the Open Meetings Law: transparency in government, the right of citizens to participate in their government, and respect for the rule of law,” wrote Sumi in a blunt and unequivocal ruling. “It is not the court’s business to determine whether 2011 Wisconsin Act 10 is good public policy or bad public policy; that is the business of the Legislature. It is this court’s responsibility, however, to apply the rule of law to the facts before it.”
Assembly minority leader Peter Barca, the Democrat who objected to the rush to pass the legislation in March, hailed Thursday’s ruling, declaring that, “When the state Legislature is meeting, the people of Wisconsin should always have a seat at the table.”
The judge’s decision adds the latest twist to the ongoing Wisconsin controversy, which has produced the largest pro-labor demonstrations in recent American history, recall drives that could see many of the legislators who backed the governor’s agenda removed from office and intense legal and legislative wrangling.
That wrangling is not done.
The state Supreme Court is expected to hear arguments June 6 on whether it should consider an appeal of Sumi’s restraining order. But that process is complicated by the fact that the April 5 election for the swing seat on the closely divided court remains unresolved following a close initial result, a recount and a possible legal action challenging the seating of the conservative jurist and Walker ally Justice David Prosser, who came out of the recount with a lead of roughly 7,000 votes.
In the meantime, the Republican-controlled legislature could revisit Walker’s anti-labor measure by simply scheduling a new consideration of it. However, Republican legislators have consistently refused to do so. Officially, they say they do not want to admit that they violated the Open Meetings law. But, practically, Senator majority leader Scott Fitzgerald, Walker’s closest legislative ally, has admitted that he fears provoking even larger demonstrations. At the same time, Republican senators quietly admit that they are not sure members of their caucus—especially those threatened with recall elections—are ready to cast additional votes for the unpopular bill.
Speculation in the Capitol holds that Fitzgerald and his brother, Assembly speaker Jeff Fitzgerald, another Walker ally, might work with Republican members of the legislative Joint Finance Committee to slip a version of the collective bargaining measure into the upcoming state budget. But tens of thousands of Wisconsinites have already joined demonstrations against the budget—which slashes funding for education and local services; raising the labor rights issues that sparked initial demonstrations would be all but certain to stir an even louder outcry than has already been heard.
Notably, that outcry would come as the state prepares for the recall elections that are tentatively scheduled for July 12.
The question for Walker and the Fitzgeralds is a difficult one: Having been slapped down for violating the state Open Meetings law, and facing constant criticism for disregarding the will of the people, do they really want to use the budget as a vehicle to advance a Wisconsin version of “right-wing social engineering”?
Passing the governor’s proposal—even if the process is followed properly and the requirements of the Open Meetings law are respected—might win the battle. But with the recall elections likely to be held less that two weeks after the date when the budget debate is set to conclude, the Republicans could end up losing the war—and control of the state Senate.
A Democratic Senate would check and balance the governor, restoring a measure of the separation of powers that is supposed to define the relationship between the executive and legislative branches.
As it is, that system of checks and balances has been maintained by Judge Sumi. Her ruling is unlikely to end the debate over collective bargaining in Wisconsin. But it has held the key participants in the debate to account, and established they are not above the law.