The move by Wisconsin's Senate Democrats and later Indiana's House Dems to deny a quorum to those bodies and thereby prevent votes on anti-union legislation has been compared (without irony) to the U.S. Senate's filibuster by angry Republicans, and a few whose sympathies might be said to lie more with Democrats (but have a professional interest in occasional hippie punching).
Are these two moves really equivalent? Both might be said to be "anti-democratic" in that they both leverage a power left in the hands of a minority to deny the majority the opportunity to act. And that's important and interesting, no doubt. But there are differences between the two that are even more important, and so far, the comparisons I've seen have ignored them.
First and foremost, it should be noted that the quorum requirements in the Wisconsin and Indiana legislatures are explicitly stated in the constitutions of those two states, whereas the filibuster not only appears nowhere in the federal charter, but may even be said to violate it.
Was it wise for the framers of the Wisconsin constitution to include the provisions of Article VIII, §8
Article VIII, §8
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.
I don't know. But there it is. There can be no doubt but that the state constitution enshrines the right of a minority to put a stop to legislative operations. To be sure, it discourages abuses:
Article IV, §7
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.
But again, there it is. Abuse the rules and a majority can come after you and even impose punishment. No such luck in the U.S. Senate.
In Indiana, the situation is similar.
Section 11. Two-thirds of each House shall constitute a quorum to do business; but a smaller number may meet, adjourn from day to day, and compel the attendance of absent members. A quorum being in attendance, if either House fail to effect an organization within the first five days thereafter, the members of the House so failing, shall be entitled to no compensation, from the end of the said five days until an organization shall have been effected.
Again, I can't necessarily speak to the wisdom of the provision, but I can tell you this: it's there, and it's on purpose.
Which is more than one can say about the filibuster.
You can look for it all you like in the federal constitution. It's not there.
Not only is it not there, it's also not in the Senate rules, either. There's a Senate rule about how to end a filibuster, but there's nothing in the rules that says Senators can use a filibuster to hold up legislation or prevent a vote on it. Now, everyone knows that's the way it works in practice, because it's a reasonable (if unfortunate) interpretation of both the rules that are there (i.e., the rule that tells us a supermajority is required to invoke cloture and end debate) and the rules that aren't (i.e, any other rule that would otherwise serve to end or limit debate). But the right to unlimited debate (which is also nothing more than an inference drawn from the rules) has actually just as often been leveraged in the negative, to prevent debate from even beginning, not to mention blocking a vote. There was once a first time for that, too, just as some of these angry Republicans have somehow come to believe that Wisconsin is the first time quorum rules have been leveraged in the negative to prevent a vote. It's not, of course. Nor is it any more creative or unusual an application of the rules than is filibustering a motion to proceed.
But at the very least, it's an exercise of a loophole set down in black and white, right in the state constitution, which is far more than can be said for the filibuster. We needn't even mention that the state constitutions in Wisconsin and Indiana can be amended by a simple majority vote of both houses of two consecutive legislatures, then a majority of the electorate in a statewide referendum. No simple task, perhaps, but one that's ultimately left to a simple majority. Compare that to the process the filibuster's defenders claim is necessary to eliminate that anti-democratic provision: a 2/3 vote of the nation's most insulated political select, and that's just to be allowed to get to an actual vote on any reform.
Yes, the similarities are there, but they're superficial. Go beyond the surface, and you're comparing an anti-democratic historical accident, divined through political alchemy and magically and perpetually entrenched in the body of the Senate on the one hand, and a conscious and explicit constitutional choice set down in black and white on the other. That's no match.
