As many know, in order to prevent the Wisconsin State Senate from passing the odious Walker budget (and miscellaneous evils) bill, the Democratic Senators have left Wisconsin for the more democratic pastures of Illinois to deny the Senate a quorum.
The Republicans are trying to coerce the Democratic Senators to return. There have been a number of comments discussing some of the legal issues surrounding these Republican actions.
This diary will set forth and discuss these issues. As usual in these situations, the standard disclaimer applies: I am not a Wisconsin lawyer and this is not intended as legal advice and should not be relied on for that purpose.
The Wisconsin Senate has 33 members, the maximum permitted by the Wisconsin Constitution in Article IV, Section 2. Currently, a majority (19 of 33) Senators are attending sessions of the Senate. For most purposes a majority constitutes a quorum, but even 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, according to Article IV, Section 7. This provision is important because (i) it provides authority for the Senate acting (ii) without a quorum to (iii) take whatever action the Senate determines to compel the attendance of absent members. Of course, this provision is limited by other provisions of the Wisconsin and Federal constitutions.
Relying on this provision and Article IV Section 8, which permits each house to punish for contempt, the Senate has ordered the arrest of the 14 absent Democratic Senators, though apparently only if they are found in Wisconsin.
There is potentially a problem with this order. Article IV, Section 15, of the Wisconsin Constitution provides that: Members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest ; nor shall they be subject to any civil process, during the session of the legislature. (The links go to the Wisconsin Constitution as a whole.)
There would seem to be some tension between Section 7 and Section 15. The first grants the Senate broad discretion to compel Senators to attend; the second forbids the arrest of legislators. How should these provisions be reconciled? Well, both history and common sense would seem to require the ability to detain a legislator for disrupting proceedings or failing to attend sessions of the relevant house.
There is also case law interpreting Section 15. In State v. Burke, 2002 WI App 291, 258 Wis. 2d 832, 653 N.W.2d 922,a legislator attempted to use Section 15 to prevent his arrest on criminal charges. The court held that the exception to the provision covered all crimes. More relevantly, the court determined that the purpose of the provision was to prevent arrest of legislators in connection with civil lawsuits, some of which, at the time of the adoption of the constitutional provision, were commenced with an arrest.
While not dispositive, it is likely that a court considering the question of whether a Senator may be arrested to compel his or her attendance at a session of the Senate would follow the view of Burke and conclude that Section 15 is inapplicable to arrests for this reason.
In considering this issue, it is relevant that Article I, Section 6 of the United States Constitution provides that Congressmembers "shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same" but the sergeant at arms of the Senate has arrested Senators and brought them to the floor of the Senate. In 1988, Democratic Majority Leader Robert Byrd orders US Senators Arrested to Obtain Quorum.
Interestingly, although the resolution speaks of the failure to show up as constituting contempt, Wisconsin law defines contempt in Section 13.26 of the Wisconsin statutes in a way which does not include the behavior of the Democratic Senators. However, as the resolution is authorized by Section 7 alone, this is not significant.
Also, it should be noted that because the Senate has a quorum for all non-budget bills, the Senate can pass any bill other than a "fiscal bill" even if no Democrats return. A fiscal bill is a bill "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," which requires a three-fifths quorum under Section 8 of Article VIII of the Wisconsin Constitution. Most of the objectionable provisions of Walker's bill appear not to fall within the definition of fiscal bill. The Republicans have not yet been willing to pass these provisions separately, whether due to arrogance, incompetence or some other reason; at some point, however, they may be willing to do so, especially as they will be able to maintain that it is necessary to pass those provisions to "balance the budget" even though not contained in a "fiscal bill".
Of course, this whole issue may be viewed as somewhat academic as the Democratic Senators are not in Wisconsin at this point and show no sign of returning any time soon, absent an agreement to amend the proposed legislation. At the same time, the Republican Senators have not yet shown an inclination to seek the arrest of the Democratic Senators in Illinois.
But what if they did?
That topic will have to await another diary.