The court rulings on bills passed late last year by the "lame-duck" Legislature and signed by former Gov. Scott Walker will now go before the state Supreme Court. In a section of the first of these rulings, Dane County Circuit Judge Richard Niess posited that the Wisconsin Constitution does not provide for the Legislature to convene in "extraordinary" session — thus calling into question all laws coming out of an extraordinary session.
Reductio ad absurdum: the governor only has the right to convene the Legislature in "special session." This term and power is in the state Constitution.
However, there is no such thing as an extraordinary session; it is a made-up phrase. I should know.
More Latin: Wisconsin's Legislature does not adjourn sine die — meaning “without a day” to reconvene — until minutes before members of a new Legislature are sworn in, during the first week of January of odd-numbered years.
At this point in time, the speaker of the previous Assembly no longer holds this position. The new members are sworn in by a member of the Supreme Court. Even if the member is the the iconic Fred Risser, the longest-serving member of any state Legislature in American history, he or she is a new member.
Once members are sworn in, new officers, including the speaker, are elected, rules are adopted and a schedule of dates when the Legislature will act on legislation is set. These dates are called floor periods, during which members are in their seats on the floor of the Assembly or the floor of the Senate.
These dates are also called session days, sometimes described as days the Legislature is "in session." But the legislature is always in session. The reality of one continuous two-year session was formally acknowledged by a constitutional amendment ratified in April 1968: "Shall Article IV, Section 11 of the Constitution be amended to permit the Legislature to meet in regular session oftener than once in two years?” The amendment was ratified in a 670,757 to 267,997 vote.
The Legislature, under the Constitution, governs itself — setting its own rules of organization, procedures and calendar.
So an extraordinary session is simply a floor period added to the dates adopted at the beginning of the two-year session, but, like a special session, it is restricted in subject matter.
Extraordinary sessions came to be part of the Legislature's way of doing business when I was Assembly speaker and Tommy Thompson was minority leader. The leaders call the session dates and the subject.
They couldn't be called special sessions — that was solely the governor's power. So, "extraordinary." Why not?
Not to doubt, this was a move to bring some parity with the governor and exercise the right of the Legislature to govern itself.
The first extraordinary session in 1980 focused on crime, and the state's crime victims' rights bill was passed. But most early extraordinary sessions — 1981, 1988 and 1990 — dealt with ratifying and funding collective bargaining agreements with state employees. There would be no way to anticipate when these collective bargaining agreements would be reached, but they had to be passed as bills.
Most importantly, the early extraordinary sessions were convened to vote on vetoes by the governor. The governor decides when to veto, and the Legislature decides when to vote on veto overrides — especially on budget vetoes. It can't be allowed that a governor times a veto when there is no floor period scheduled, thus thwarting the Legislature's power under the Constitution to consider an override. So in 1980, 1987 and 1988, there were extraordinary sessions to consider vetoes.
By the way, on July 17, 2012, the Senate called itself into session outside of a scheduled floor period to elect Risser as Senate president following the recall elections.
In the unlikely event that the Supreme Court rules the Legislature cannot control its own calendar, at the very least, its justices won't be invited to swear in new members again.
At the beginning of the two-year session in January, the speaker delivers a State of the Assembly speech. In my last session, 1989-91, I lamented greatly a recent Supreme Court decision expanding the veto powers of the governor and diluting the rights of the Legislature:
"The Wisconsin governor, in an appropriations bill, can cross out a digit to make a new number, a letter to make a new word, and words to make a new sentences … the court's majority dealt us a body blow that made us less than co-equal. The court gave the governor the power to make law by decree."
June 15 will be the 804th birthday of the Magna Carta, when the barons wrested from King John some powers that evolved over the centuries into the modern Legislature. The struggle continues to keep those powers.
The Wisconsin Supreme Court, when it last had a chance, sided with King John. It's time to restore some balance.
"Lame duck" in Latin is claudus anatis.
Read more about the history of extraordinary sessions here.
Tom Loftus of Sun Prairie is a former member of the UW Board of Regents and speaker of the Wisconsin Assembly, and was the Democratic candidate for governor in 1990. He was ambassador to Norway from 1993 to 1998. From 1998 to 2005 he was the special adviser to the director general of the World Health Organization.
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