Two Solutions to the Wisconsin Stalemate

The Republican majority of the Wisconsin State Senate has at hand the tools to end its stalemate now.

The Wisconsin Constitution requires that to vote on a law dealing with taxing or spending or borrowing, a "quorum" is needed, and the minimum number to constitute a "quorum" is sixty percent of the elected members of the legislature:


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.

A "money-related" quorum in the current legislative session is 20 (19.8) senators of the 33 senators elected. The current party breakdown in the Wisconsin Senate is 19 Republicans and 14 Democrats. Each one of the 14 Democratic senators has refused to appear in the Senate chamber in Madison, leaving 19 Republicans alone at their desks and, seemingly, unable to have a vote until at least one Democrat shows up for work.

[It is widely believed that those lying-low legislators have gone so far as to leave  Wisconsin entirely, hiding out in a hotel in Illinois.]

The common understanding is that unless at least one of those 14 decides to return to the Senate chamber, a money bill cannot be voted on. That does not have to be the case.

Excluding the Table of Contents, the word "quorum" appears only six times in the entire Wisconsin Constitution: Once (Article VII, Section 4) having to do with the Wisconsin Supreme Court, and once (Article X, Section 7) having to do with a special commission (made up of the Secretary of State, the state Treasurer, and the state Attorney General) tasked with such matters such as selling state land. And, "quorum" appears twice in Article VIII, Section 8 (above).

The remaining two times that "quorum" appears, it has to do with the fundamentals of operation of the legislature:


Organization of legislature; quorum; compulsory attendance. SECTION 7. Each house shall be the judge of the elections, returns and qualifications of its own members; and a majority of each shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and may compel the attendance of absent members in such manner and under such penalties as each house may provide.

That's it. The only definitions provided in the Wisconsin Constitution for what is a quorum are the very limited ones setting the number of legislators needed in order for a vote to pass.  The constitution is written so that a majority cannot gather in secret or too quickly for members to have a chance to arrive. The quorum requirement is not a right in itself, but rather a safeguard against trickery. It protects the rights of citizens to be represented. It is not a power granted to a minority to block a vote of a majority. The Wisconsin Constitution does not require an affirmative vote by three-fifths of the elected legislators, but only the opportunity for at least three-fifths of its members to vote. Contrast this with the sixty-vote filibuster-ending requirement in the U.S. Senate.

Consider this, too: the Wisconsin Constitution authorizes passage of money-legislation by an affirmative vote of as few as 11 senators, or only one-third of the entire state senate. That is, a majority of the 20 Senators needed for a quorum. Yet, all 19 legislators showing up for work have said that they will vote for the pending legislation.

What is unambiguously not in the Wisconsin Constitution is a statement as to where those legislators must be in order to be counted towards a quorum.

The Wisconsin Constitution assigns the state legislature the responsibility of crafting rules and definitions governing how voting is to be conducted, i.e., the mechanics of voting. Article IV, Section 7 empowers 51% of the elected legislators in each house of the Wisconsin legislature to do the following:

  • 1) Define a quorum to include those legislators who have the ability -- if they choose -- to vote absently, either by electronic means or proxy. This would ensure that no citizens are ever deprived of representation in the state legislature even if their representative is in the hospital or out of town; and/or
  • 2) Pass a statute (or legislative rules) that any legislator who refuses or fails to represent his constituents by participating in the deliberations of that body for more than 30 days is to be regarded as having resigned his office. Once again, this would ensure that no citizens are ever deprived of representation in the state legislature even if their representative is in the hospital or out of town or just refuses to show up for work.

Every state permits absentee voting, and more and more are permitting electronic voting from locales other than town halls and school gymnasiums. Extended times for voting (between Day X and Day Y) are also being enacted in a number of states.

Such a statute or rule for Wisconsin's legislature would state that so long as a member can reach a telephone and is able to record a vote, that member should be counted as part of a quorum. The act of not voting, that is abstaining, has never been counted against a quorum. It's the ability to cast a vote that is all that has mattered.

[Alternatively, the 19 Republicans can all charter a bus and travel to Illinois to the hotel where the Democrats are holed up. The risk is that when the bus arrives at the hotel, Democrats will jump out of their windows in their underwear. It's still winter, after all.]

If the 19 Senators who have shown up for work wish to do the people's business, they have the power to do it. It is very plainly given to them in Article IV, Section 7 of their state's constitution. There is nothing in the Wisconsin Constitution to prevent them from doing that immediately.
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