That video above is from last night’s 3-minute conference committee meeting, convened illegally under Wisconsin law, which passed a bill Democratic members of the committee didn’t have an opportunity to read. Rep. Peter Barca, the Assembly Minority Leader, pleads throughout the meeting that it violated Wisconsin’s very precise open meetings law. This stipulates that “Public notice of every meeting of a governmental body shall be given at least 24 hours prior to the commencement of such meeting unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting.” The Republicans didn’t even clear the 2-hour bar here; Scott Fitzgerald announced the 6:00pm meeting shortly after 4:00pm. And since there was no good cause to call the meeting on emergency grounds, the 24-hour notice was in effect. Fitzgerald and the Republicans didn’t care. They called the roll while Barca was still screaming about the violation of law. They just walked out on him. Hours later, Fitzgerald obtained a message from the chief clerk claiming that the meeting was properly called. But that should, and will, be challenged in court.

In fact, right after the meeting, Barca started collecting signatures from witnesses in order to prepare for filing an open meetings complaint. Because Barca never saw a bill before the vote, he is also reportedly questioning whether a bill existed prior to voting on it. This would also be a violation.

When you talk to political folks in Wisconsin, you realize that transparency and procedure matter a lot. This violation of law is actually but one of the many dubious marks on yesterday’s action, and actually all the action around the budget repair bill and the assault on workers’ rights. Perhaps the open meetings violation could be rectified merely by waiting another day and starting over. But there are all the questions surrounding the content of the bill itself. The whole reason this ordeal has lasted three weeks is that the collective bargaining piece was tied into the budget repair bill, which had a fiscal impact. That’s what triggered the quorum requirement. But the Republicans supposedly stripped out the fiscal pieces and passed a purely non-fiscal bill last night in the Senate, and later this morning they’ll do the same in the Assembly.

But is the bill non-fiscal? Put aside for a second the fact that Gov. Walker said for three weeks that collective bargaining has a fiscal impact. There were other parts of the bill with a clear fiscal impact as well. For instance, here’s a memo from the Legislative Fiscal Bureau on the bill, and here’s the 138-page bill itself. Here’s what came out of the bill, via WisPolitics:

• changes to the earned income tax credit
• a $79 million reduction in the lapses required from the DOA secretary
• $165 million in debt restructuring
• increasing funding for MA programs to close funding gap through end of fiscal year
• the sale of state power plants
• increasing funding for Corrections to close gap through end of fiscal year
• reallocation of group health and pharmacy benefit reserves
• audit of dependent eligibility under benefit programs

But that does not address the potential fiscal impact in what remained. On page 12 of the LFB memo you see a item that would “reduce funding… in the Joint Committee on Finance’s general program revenue supplemental appropriation.” On page 17, you see the changes to public employee health and pension benefits. On page 33, there’s an inclusion of a particular piece of wetlands in a tax incremental financing district, which appears to be tax relief. It would be hard to imagine that these pieces don’t have a fiscal impact. In fact, the Wisconsin State Journal, one of the more staid publications in the state, basically came this close to accusing the Republicans of outright lying:

After the session, Senate Republicans scattered, leaving no one to explain how they managed to pass components of the bill that seemed to have a fiscal impact, including changes in pensions and benefits, without the 20 senators needed to vote on fiscal matters. In a statement, Senate Majority Leader Scott Fitzgerald said he had consulted with the Legislature’s attorneys and “every item in tonight’s bill follows the letter of the law.”

Fitzgerald’s statement is here. Now, if you look at the language of the quorum law, you can see how Fitzgerald’s John Yoos may have reckoned this one.

Vote on fiscal bills; quorum. SECTION 8. On the passage in either house of the legislature of 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, the question shall be taken by yeas and nays, which shall be duly entered on the journal; and three−fifths of all the members elected to such house shall in all such cases be required to constitute a quorum therein.

It’s possible that a friendly judge could take this to mean only items that had a negative fiscal impact, or raise taxes. Items that have a positive fiscal impact may or may not be part of that. The trickiest items to reconcile with that are the changes to pensions and benefits.

The dirty secret here was that there was ALWAYS going to be a court challenge to this bill. If it wasn’t on the open meetings violation – or if it wasn’t on the pension givebacks, supplemental appropration rescissions and tax limitations in the “non-fiscal” bill – it would be on the fact that the pension changes violate “home rule” provisions for localities. Here’s what the Milwaukee city attorney said two weeks ago:

“… in our judgment, the courts would find the statute unconstitutional on three grounds: first, that it unconstitutionally interferes with and intrudes upon the city’s home-rule authority over its pension plan; second, that given certain vested rights or benefits that have accrued to employees currently in the plan, the statute would constitute an unconstitutional impairment of contract rights under the state and federal constitutions; and third, given these same vested rights or benefits, the proposed statute would violate the due process clauses of the state and federal constitutions because it would abrogate the terms and conditions of the Global Pension Settlement …”

Heck, they’re still looking at tape in the Assembly to determine if Republicans reached over and voted using the electronic device of their colleagues who weren’t present in the chamber at 1am when they passed it. Because this new bill represents a reconciled version of that one, that would apply. There are about a dozen different ways this could be unconstitutional under Wisconsin law.

Of course, constitutionality will be determined by the Wisconsin Supreme Court. Which makes the election for a Supreme Court Justice slot on April 5 very interesting. They are basically partisan elections in Wisconsin. Republicans currently have a 4-3 edge on the Court, and one of the incumbent Republicans, David Prosser, a former Speaker of the Wisconsin State Assembly, is the one up for re-election. His opponent is a deputy US Attorney, JoAnn Kloppenburg. So a win for Kloppenburg would shift the balance of power on the court. This goes down in less than 4 weeks. In addition to essentially being a vote of no-confidence in Scott Walker and his party, that vote on April 5 could go a long way to deciding if this bill gets overturned in court.

Sen. Tim Cullen summed things up last night:

“We just don’t know what’s going on,” he said. “We don’t know what is legal. I think we all just need to press ‘pause.’ Democracy does not have to move this fast.”