POINT OF ORDER
Senator Welch raised the point of order that Point of order that the bill requires an Emergency Statement and is not properly before the Senate.
THE CHAIR RULES
SENATE BILL 1
An Act to create 20.435 (4) (bv), 20.435 (4) (j), 20.435 (4) (jb), 20.435 (4) (jd), 49.477 and 49.688 of the statutes; relating to: requiring pharmacies and pharmacists, as a condition of medical assistance participation, to charge elderly persons for prescription drugs no more than specific amounts; specifying requirements for rebate agreements between the department of health and family services and drug manufacturers; requiring the department of health and family services to seek a waiver to provide medical assistance eligibility to certain persons for purposes of a prescription drug benefit; requiring the exercise of rule-making authority; making appropriations; and providing penalties. (FE)
Senate Bill 1 was referred to the Joint Committee on Finance on January 25, 2001. The Senate Co-Chair of the Joint Committee has attempted to schedule a meeting; however, the Assembly Co-Chair has refused to concur with a meeting schedule.
There are two issues involved prior to consideration of Senate Bill 1 by the full Senate:
The first is the requirement for an "emergency statement" as required by ss. 16.47(2)
The authority of the Senate Committee on Finance to report the proposal to the Senate when the proposal was referred to the Joint Committee on Finance by the Senate.
of the statutes requires that prior to passage of the biennial budget bill, any proposal which impacts state finances by an amount exceeding $10,000 requires an emergency statement before either house of the legislature may take a vote on final passage of the proposal.
The fiscal impact information provided by the Legislative Fiscal Bureau indicates a cost of $16 Million in fiscal year 2001-02 and approximately $106 million in fiscal year 2002-03. Clearly, in accordance with ss 16.47(2), the bill requires an emergency statement.
A brief history of the "emergency statement" requirement is in order at this time. The concept was developed as the result of one of the first Legislative Council Study Committees on the Budgetary Procedure. The Legislative Council by its resolution establishing the subcommittee advised that the subcommittee "consider the feasibility of including all appropriations in a single bill". The report of the subcommittee stated: "Studies bring out an alarming trend of the large number of separately enacted appropriation bills, including the executive budget bill. The last three sessions show 84 bills in the 1943, 85 bills in 1945 and 110 bills in 1947." The subcommittee also stated: "It is often questionable whether or not all the members of the legislature have a clear picture of the financial condition of the state. Nor do they know whether or not the appropriation bills being acted upon fit into a sound pattern for the state's financial welfare."
The subcommittee reviewed a recommendation of a prior committee on the budget, chaired by the late Senator Melvin R. Laird Sr. That recommendation was to employee 5 budget assistants to advise the legislature on fiscal policy. Senator Laird was quoted as saying: "Budgetary systems are concerned with the coordination of public finances into financial plans. It is apparent that with technical assistance given, the budget can be evaluated and considered in a better legislative light."
The Legislative Council Subcommittee recommended the adoption of a proposal that would accomplish the goal of informing the members of the legislature on fiscal matters and provide for speedy and effective consideration of appropriation bills.
Assembly Bill 11 was introduced into the 1949 Legislative Session, relating to a state fiscal policy and appropriation procedures. The bill as originally introduced clearly restricted the legislature's ability to act on appropriation bills. One provision of the proposal read as follows: "No appropriation bill shall be passed by either house until the executive budget bill has passed both houses; except that the governor may recommend the enactment of an emergency executive budget bill which shall continue in effect only until the executive bill becomes effective or until the next succeeding July 1, whichever is later. There was additional language in the bill to provide for the Joint Committee on Finance to report and propose a Joint Resolution on the fiscal condition, and a requirement that appropriation bills provide a source of revenue, this last provision did not become law.
The proposal recommended by the Legislative Council was viewed by the media as; "suggestions which should make future budget requests considerably more honest". (State Journal "Under the Dome" by Sanford Goltz, date unknown)
The legislature recognized the problem with an outright restriction on its ability to pass appropriation bills prior to passage of the budget bill. Early in the 1951 session the 1949 law was modified to remove the outright restriction on the passage of appropriation bills prior to the budget bill and allow for the passage of any appropriation bill that was recommended for passage by the Joint Committee on Finance. There was no requirement of an emergency statement until 1957 when the language was amended to provide for the "emergency statement" procedure, as we know it today.
Therefore, of the original purposes outlined by the Legislative Council for restricting the consideration of appropriation bills prior to the passage of the budget, only the education of members and the heightened awareness of the fiscal impact survived. The first law enacted was an outright prohibition on the consideration of such bills prior to passage of the budget. This was repealed after only one session. The language in force today clearly is to heighten the awareness of the membership and the public that the proposal has a definite fiscal impact that may not be part of the biennial budget bill.
The authority of the Assembly to act without an emergency statement arose in a point of order raised in 1995 on Assembly 73, in which the question was raised as to the authority of the Assembly to withdraw a proposal from the Joint Committee on Finance when an emergency statement was required. The motion was to suspend the rules to withdraw AB 73 and take it up immediately. The Speaker, Representative Prosser, ruled that since the motion was to suspend the rules, the motion was valid. This clearly demonstrates that Speaker Prosser believed that one house of the legislature could act on a proposal requiring an emergency statement by suspending the rules, therefore giving credence to the authority of each house to determine its own rules of procedure.
I have found numerous occasions where a proposal has been passed by one house or the other without the required emergency statement.
The failure of the legislature to follow the procedures outlined in ss 16.47(2) does not invalidate the act. I will not quote from the various case history and parliamentary manuals on this subject as I believe it is widely understood that the Constitution grants the authority to each house of the legislature to determine its own rules of procedure and that the legislature may not bind or restrict itself or its successors as to the procedure to be followed in the passage of legislation.
The statutes are silent as it relates to the authority of the Senate Finance Committee to issue an emergency statement.
To determine what authority the Senate Finance Committee has relating to emergency statements, one needs to understand the purpose of the statements. Clearly, since 1957, when the concept of the emergency statement was placed in our statutes, its sole purpose was to make certain that the members of the legislature and the public were aware that a proposal was going to have significant impact on state finances. The law does not require any other special action to be taken other than to provide notice to an "emergency". From the history of this section of the statutes, it appears that the term "emergency" was taken from the original bill of 1949, which gave authority to the Governor to propose an "emergency" executive budget bill. There is no definition as to what constitutes an "emergency". The 1951 act only gave an exemption to the prohibition on the passage of appropriation bills, if the Joint Committee on Finance recommended the bills for passage.
The history of the Senate Committee on Finance indicates that under Senate Rule 20(4)(b)
, the Senate Committee on Finance has the authority to report any proposal to the Senate that the Joint Committee fails to.
The Senate Finance Committee has on occasion taken action to report proposals to the Senate. It is well established that the Senate Finance Committee has the authority to act when the Joint Committee on Finance fails to do so, for whatever reason.
On October 17, 1973, Senator Hollander raised the point of order that the Senate Finance Committee has full control over Senate proposals. The Chair ruled that the Senate Committee on Finance has full jurisdiction over bills and joint resolutions under the control of the Senate, which are referred to the Joint Committee on Finance. The Chair furthers stated: "To rule otherwise would allow the Assembly members of the Joint Committee on Finance to control the independent operation of the Senate and would violate the basic concept of bicameralism".
This Presiding Officer, while serving as Minority Leader of this Senate, raised a point of order on October 25, 1973, questioning the authority of the Senate Finance Committee to report a proposal to the Senate that had been referred to the Joint Committee on Finance.
The Chair ruled the point of order well taken and stated that only the Joint Committee on Finance could have jurisdiction over legislation referred to the Joint Committee. The ruling of the Chair was appealed, and on a vote of 8 ayes and 23 noes, the ruling was not held as the judgement of the Senate. From that time forward, it has been the determination of this Senate that Senate Rule 20(4)(b)
grants authority to the Senate Finance Committee to act on proposals referred to the Joint Committee on Finance.
The Senate Rules were amended by 1975 Senate Resolution 21. The resolution had bipartisan authors and a relating clause of "relating to senate committee procedures." The rule change was a direct result of the rulings of the Chair in the previous session.
It should be noted that the Joint Committee on Finance in the early 70's consisted of 9 members of the Assembly and 5 Senators. The split party control and the disproportionate representation of the Senate on the Joint Committee were a major reason for the actions taken by the Senate Finance Committee.
It is interesting to note that in the 75 Session, democrats controlled both houses of the legislature, yet the Senate, with strong bipartisan support, wanted to make it very clear, in the rules, that the Senate Finance Committee had jurisdiction and the authority to report proposals that had been referred to the Joint Committee on Finance, without restriction.
The statutes require no special action other than to include in their report to the house a recommendation that a proposal be passed and that a statement be made to the effect that they are emergency bills. It is clear that the Senate Finance Committee has the authority to report a proposal to the full Senate. The Committee has the same resources available to it as does the Joint Committee to determine the fiscal impact of proposals, and is clearly in a position to fulfill the requirements set forth in ss. 16.47(2)
The intent of the Senate Rule 20(4)(b)
is clear in that it was adopted to allow the Senate to take action on any proposal that the Joint Committee on Finance has failed to report. It is also clear to the Chair that it was the intent and purpose of the Senate in the early 70's to grant full authority to act to the Senate Finance Committee. Furthermore, as stated by a previous presiding officer, to not allow the Senate Finance Committee to act would grant the authority to the Assembly Co-Chair, the authority to block the independent operation of the Senate.
In addition, as supported by case history, parliamentary manuals and as demonstrated by the ruling by the Speaker in the Assembly, the Senate has the authority to determine its own rules of procedure, even if they conflict with an existing statute, as long as they don't conflict with the Constitution or infringe on the rights of individual members.
Mason's Manual of Legislative Procedure states in section 3, paragraph 2:
The house and senate may pass an internal operating rule for its own procedure that is in conflict with a statute formerly adopted.
In Section 2, paragraph 3, Mason's also states:
Rules of procedure fulfill another purpose in protecting the rights of members. Individual members, for example, are entitled to receive notices of meetings and the opportunity to attend and participate in the deliberations of the group. Minorities often require protection for unfair treatment on the part of the majority, and even the majority is entitled to protection from obstructive tactics on the part of minorities.
I am reminded of a quote from Cushing's Legislative Assemblies, "Elements of the Law and Practice of Legislative Assemblies in the United States of America:
The great purpose of all rules and forms, says Cushing, is to subserve the will of the assembly rather than to restrain it; to facilitate and not to obstruct the expression of its deliberate sense.
Clearly the Senate has the authority, through its adopted rules, to authorize a committee to report a proposal in the same manner prescribed by law for a Joint Committee.
Therefore, it is the opinion of the Chair, that Senate Rule 20(4)(b)
grants to the Senate Finance Committee the full authority of the Joint Finance Committee as it relates to the reporting of proposals referred by the Senate, to include the recommending of passage of a proposal with emergency statement attached.
The Chair rules the point not well taken.
Fred a. Risser
President of the Senate
Senator Welch appeals the ruling of the Chair.
The question was: Shall the decision of the Chair stand as the judgement of the Senate?
The ayes and noes were required and the vote was: ayes, 18; noes, 15; absent or not voting, 0; as follows:
Ayes - Senators Baumgart, Breske, Burke, Chvala, Decker, Erpenbach, George, Grobschmidt, Hansen, Jauch, M. Meyer, Moen, Moore, Plache, Risser, Robson, Shibilski and Wirch - 18.
Noes - Senators Cowles, Darling, Ellis, Farrow, S. Fitzgerald, Harsdorf, Huelsman, A. Lasee, Lazich, Panzer, Roessler, Rosenzweig, Schultz, Welch and Zien - 15.
Absent or not voting - None.
Decision of the Chair stands as the judgement of the Senate.
Senator Decker, with unanimous consent, asked to be added as a coauthor of Senate Bill 1.
Read a third time.
The ayes and noes were required and the vote was: ayes, 20; noes, 13; absent or not voting, 0; as follows:
Ayes - Senators Baumgart, Breske, Burke, Chvala, Decker, Erpenbach, George, Grobschmidt, Hansen, Jauch, A. Lasee, M. Meyer, Moen, Moore, Plache, Risser, Robson, Schultz, Shibilski and Wirch - 20.
Noes - Senators Cowles, Darling, Ellis, Farrow, S. Fitzgerald, Harsdorf, Huelsman, Lazich, Panzer, Roessler, Rosenzweig, Welch and Zien - 13.
Absent or not voting - None.
Senate Bill 3
Relating to: the appointment of the secretary of natural resources.
Read a second time.
Senator Schultz, with unanimous consent, asked to be added as a coauthor of Senate Bill 3.
Senator Chvala, with unanimous consent, asked that all action be immediately messaged to the Assembly.
The question was: Adoption of Senate substitute amendment 1 to Senate Bill 3?
Ordered to a third reading.
Senator Chvala, with unanimous consent, asked that the bill be considered for final action at this time.
Read a third time.
The ayes and noes were demanded and the vote was: ayes, 20; noes, 13; absent or not voting, 0; as follows:
Ayes - Senators Baumgart, Breske, Burke, Chvala, Cowles, Decker, Erpenbach, George, Grobschmidt, Hansen, Jauch, M. Meyer, Moen, Moore, Plache, Risser, Robson, Schultz, Shibilski and Wirch - 20.
Noes - Senators Darling, Ellis, Farrow, S. Fitzgerald, Harsdorf, Huelsman, A. Lasee, Lazich, Panzer, Roessler, Rosenzweig, Welch and Zien - 13.
Absent or not voting - None.
Senate Bill 7
Relating to: the filing of certain forms related to a tax incremental financing district.
Read a second time.
Ordered to a third reading.
Senator Moen, with unanimous consent, asked that the bill be considered for final action at this time.
Senator Decker, with unanimous consent, asked to be added as a coauthor of Senate Bill 7.
Read a third time and passed.
Senate Bill 37
Relating to: water quality certification for wetlands.
Read a second time.
Senate amendment 1 to Senate substitute amendment 1 to Senate Bill 37 offered by Senator Shibilski.