By Laurel Patrick and Kirsten Adshead Wisconsin Reporter
MADISON — Republicans might not need Democrats after all to pass some of the most controversial elements of Gov. Scott Walker’s controversial budget repair bill, Marquette University law assistant professor Richard Esenberg said.
“That’s just sort of a twist that occurs to me,” Esenberg said.
The Senate convened Thursday morning to vote on the legislation that, among other provisions, strips 175,000 state employees of most of their collective bargaining rights.
But when roll call was held, Democratic senators were nowhere to be found. Because the legislation is deemed a fiscal bill, three-fifths of the Senate needed to be in attendance before a vote could be taken.
With 19 GOP senators, the Republican majority was one senator shy of the 20-senator requirement.
The Wisconsin Constitution, however, only requires that three-fifths of each chamber to be in attendance for “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.”
So if Republicans included non-fiscal, but still controversial provisions, in a separate bill — including, potentially, the provisions regarding collective bargaining — legally they’d only need 17 senators for a vote to be held, Esenberg said. That means Republicans could vote without a single Democrat being present, he said.
“I don’t know that the Republicans would do that, and they still wouldn’t be able to pass the fiscal provisions that they want,” he said.
Among the fiscal requests: Starting April 1, state employees would have to contribute 5.8 percent of their salaries to cover pension costs, and more than double their contributions toward their health insurance plans.
Democrats could always make the case that the collective bargaining proposals meet the three-fifths requirement because those provisions address how state workers can bargain for salaries and benefits.
If that’s the case, the GOP would need the presence of Democratic senators.
But all day Thursday, it was unclear where, exactly, those 14 senators were — and what, exactly, Walker and the GOP can do to force Democrats back to the Senate chamber.
Rumors and conflicting media reports spread throughout the day as an estimated 25,000 people rallied in and around the Capitol.
Supporters blockaded access to the office of State Sen. Chris Larson, D-Bay View, but it was unclear whether Larson was even there.
He did Tweet a picture of the crowd outside his office and wrote, “For those looking for us, we are right here, standing with the people of Wisconsin.”
State Sen. Lena Taylor, D-Milwaukee, Tweeted, “I’m not in the senate chamber! I’m working for the people. Power to the PEOPLE.”
Sen. Jon Erpenbach, D-Middleton, told the Associated Press that he and the other Senate Democrats had left Wisconsin but would not disclose where they were.
“Republicans who control this Legislature have made the choice to close their doors and not to listen to the tens of thousands of people who have gathered in protest all over the state,” Erpenbach said in a statement. “There will be a vote on a proposal at some point. I urge the majority to sit down to find common ground for their constituents and my constituents.”
Senate Minority Leader Mark Miller, D-Monona, said senators were somewhere outside the Capitol, but still within state lines.
In a telephone interview with CNN, Miller said Senate Democrats were “not all in one place at this time” and that Democrats are “staying put” until collective bargaining rights are reconsidered.
Walker said he won’t budge on the issue and urged Democrats to return so voting could proceed.
But it’s unclear how much authority he and legislative leaders have to make that happen.
Attorney Jim Troupis, who is working with the GOP on the issue of redistricting, said the Constitution states that “a smaller number (than a quorum of lawmakers in each chamber) may compel the attendance of absent members in such manner and under such penalties as each house may provide.”
Troupis said senators can “compel the others to return by whatever means they have.”
Senate Majority Leader Scott Fitzgerald, R-Juneau, was considering what further action to take.
But, constitutionally, senators also are protected from arrest: “Members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; nor shall they be subject to any civil process, during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session.”
And, if senators did remain across state lines, Wisconsin law enforcement would have no jurisdiction outside the state and would need the help of another state’s law enforcement, Esenberg said.
He knows of no court case that has determined which constitutional provision trumps the other — lawmakers’ right to compel other lawmakers back to the chamber, or lawmakers’ protection from arrest.
“I guess that I’m not persuaded that they can’t be arrested,” Esenberg said.