The Republicans in the Wisconsin State Senate voted unanimously Thursday to approve a resolution finding the Wisconsin 14 in contempt of the Senate and ordering their arrest. However, this doesn't mean they're committing any criminal act, and the Wisconsin State Constitution explicitly prohibits their arrest except for in a few special cases that clearly haven't occurred. The Republicans can execute any lawful action to "compel" the WI 14 to return, but they cannot be arrested. By leaving the state, the Wisconsin 14 aren't doing anything illegal. If they were, they would've been extradited from Illinois. In fact, they're supporting democracy and doing exactly what the Founding Fathers encouraged.
This all has to do with something called a quorum. A quorum is the fewest number of members that must be present in the Wisconsin Senate in order to do various things. That number is different depending upon what the Senate is doing. To vote on fiscal matters, the number needed to reach a quorum is 20, three-fifths of the Senate under Section 8 of Article VIII of the Wisconsin Constitution. Even though the Republicans have a majority with 19 members, they can't vote on the budget repair bill themselves because they can't reach a quorum.
Quorums are written into the Wisconsin Constitution and the United States Constitution to protect us. The problem is that we have a democracy in the United States and the State of Wisconsin, but we don't directly vote on bills. We have a representative democracy. So representatives can get elected, and then vote differently than they campaigned. We don't want to elect a small majority of representatives who said one thing to get elected, but when elected pass laws they never talked about and most of us don't want. So how can that be prevented?
This issue was debated openly in the Federalist Papers and other writings, as well as most likely in writing the Wisconsin Constitution. The U.S. Senate has a few ways to delay or prevent a bill from passing, including the filibuster. The filibuster is a power unique to the U.S. Senate. We have quorums for the other legislative bodies in the United States and the State of Wisconsin to protect us.
By requiring a minimum number of senators to vote, a quorum can protect us from senators who wish to impose laws that are opposed by the majority of the public. The Wisconsin Constitution specifically states that three-fifths of the Senate must be present for a quorum on fiscal matters. This was done in part to protect us from a small majority of senators who aren't following the will of the majority of the people. Unless three-fifths of the Senate believes a fiscal bill is worthy of a vote, it should not take place. So senators can deny a quorum to protect the public and prevent such a bill from passing.
Denying a quorum is a tactic that should only be used as a last resort to stop widely unpopular laws created by a representative majority, and clearly this is such a time. Still, there can be penalties for denying a quorum, because we don't want them happening often. Otherwise, we may never get anything done.
The ultimate penalty comes from the voices and actions of the public. Legislators who deny a quorum for an unpopular vote will suffer little, if any, backlash from the public. In fact, as we've seen in Wisconsin, they can receive significant support. Yet, legislators who deny a quorum for a more popular vote will be persuaded by the public to return, as we've seen in other cases.
The Republicans in Wisconsin never mentioned their desire to eliminate collective bargaining rights during their campaigns. They received a majority representation in both the Assembly and the Senate, as well as the governorship for various other reasons, but not to eliminate collective bargaining rights for public employees. Had they campaigned to eliminate those rights, they probably wouldn't have a majority or the governorship. The Wisconsin 14 are rightfully preventing this small number of people from passing a law that the majority of Wisconsinites strongly oppose.
The Republicans are trying to eliminate rights that were fought long and hard for like many other rights we revere and enjoy. This political fight is clearly not about the money. If anyone is in contempt of our Senate, it's the Republicans for trying to force an unpopular vote by personally threatening these people. However, I'm not sure that falls under the legal definition of contempt either.
On a lighter note, the Republicans may remember that Abraham Lincoln jumped out of a window to deny a quorum in 1841. That's probably why the windows of the Capitol were recently bolted shut.
Update: (3/6/2011) The CapTimes has an article that includes a quote from a law firm confirming my assertion that the Republicans have no basis to arrest the Wisconsin 14. From a legal analysis conducted by the law firm of Cullen, Weston, Pines & Bach, "None of the 14 absent senators has been charged with a crime. Nor has any crime occurred. The Wisconsin Senate has absolutely no authority to order any of its members arrested or taken into custody in order to compel their attendance."
I'd like to add that I believe the Republicans knew they didn't have the authority when they wrote the resolution calling for the arrest of the Wisconsin 14. Instead of actually using the arrest authority, they just wanted all of the headlines in the news media to say "arrest" and "Democrats." The tactic could help them change the tone and content of the conversation, swaying people's opinions against the Democrats. Even if they have the authority, it ends at the Wisconsin border. So it really was a toothless attack from the beginning. The bottom line remains that the Democrats are doing exactly what democracy requires in this situation.
Note: I'm not a lawyer, and these are my reasoned opinions that I believe to be correct based on my research of news and legal opinions/writings and my beliefs in democracy. If you believe I'm incorrect, please say so.
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