The real threat to union-busting: The constitution

Today’s blog is an op-ed of mine in the March 2, 2011 edition of Salon.com.

The real threat to union-busting: The constitution

The Democratic state senators who are hiding out across state lines in Illinois are a major problem for Wisconsin Gov. Scott Walker and his effort to push a bill stripping public employees of their collective bargaining rights through the state Legislature. So is Wisconsin's state constitution, which severely limits Walker's ability to break the Democrats' resistance. Any action he might take, it seems, could form the basis for a successful challenge before the state Supreme Court.
1. One issue could arise if Walker wins passage of the bill by deputizing the police to round up Democratic senators, if any of them return to the state, and force them to come to Madison. Article V, Section 4 of the state constitution gives the governor the power to "convene the legislature on extraordinary occasions" and "take care that the laws be faithfully executed." The first power allows the governor to call special sessions in the event of emergencies. But even if the governor calls a special session, it is not clear that he has the authority to force legislators by police escort to show up. Similarly, the power to faithfully execute the laws is significant, but it also requires one to ask what laws are being broken if senators refuse to show up.

But let's pretend their failure to appear at the state Capitol is a crime (even though it isn't in Wisconsin); even then, the senators cannot be arrested and detained, according to Article IV, Section 15, which states: "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."

Similar clauses are found in many other state constitutions. Their origins date to the 19th century and their purpose was to prevent opposition forces from using trumped-up legal charges to prevent legislators from voting. Here, Article IV, Section 15 could be invoked to challenge any effort to arrest and detain senators for the purposes of forcing a vote. Of course, as long as the senators are outside of Wisconsin, state police have no jurisdiction to detain or arrest; if the police were to cross lines to apprehend the senators, they would be engaging in kidnapping -- a felony in the state, and also a potential violation of federal kidnapping laws.

But what if senators are derelict because of their failure to show up for their duties -- what is the remedy? Article IV, Section 7 of the constitution commits this issue to the legislative branch to address. Specifically, it states: "Each house ... may compel the attendance of absent members in such manner and under such penalties as each house may provide." In other words, the Wisconsin Constitution explicitly delegates to the Legislature the sole authority to determine how it may enforce attendance. This means that Gov. Walker is barred constitutionally from taking any action. Nor can legislators be impeached, thanks to Article VII. Technically, the state Senate could move to expel absent members according to Article IV, Section 8. But expulsion requires a two-thirds vote of the entire body -- which is unlikely.

Assume now that Walker does compel senators to come to the Capitol and a vote occurs. Would such a vote be constitutional? This is debatable. If the arrest or detention of legislators is illegal under the state constitution, then any vote forced as a result would also be unconstitutional. One could also invoke Article IV, Section 1, which vests the legislative power in the Senate and the Assembly. This clause, along with similar clauses for the executive and judicial branches, creates an inherent separation of powers doctrine. By forcing senators to attend and taking a vote, the Legislature's inherent powers may be violated.

Finally, if the Senate doesn't convene to vote and no budget is adopted, can Walker simply suspend collective bargaining rights and lay off public employees on his own? The answer is no. The governor has broad veto authority under Article V, Section 10, but he cannot use power until a bill is presented to him. Similarly, he cannot act unilaterally to balance the budget if the Legislature does not act. Tim Pawlenty, then the governor of Minnesota, learned this in 2010 when the Supreme Court in his state ruled that his efforts were illegal. The power to pass a budget and allocate money is a legislative function. For Walker to just fire thousands of state employees in the name of balancing the budget without legislative authorization might also be a constitutional violation.

Thus, there may be no constitutional way for Gov. Walker and his Republican allies to enact their collective bargaining ban -- as long as every Democratic senator stays away from Madison.