United We Flee

Can a bunch of Wisconsin Democratic senators stop a bill by refusing to show up for the vote?

Wisconsin protests

Wisconsin State Sen. Mark Miller talked to the Milwaukee Journal-Sentinel on Thursday, dishing about how his fellow Democrats would stop Republican Gov. Scott Walker’s “budget repair plan.” There was only one thing he wouldn’t talk about: where he was calling from. He and 13 other Democratic state senators had fled the scene for pastures unknown, denying Republicans a vote on the bill by denying them quorum.

“We’re not all in one place,” he said. “We are prepared to do what is necessary to make sure that this bill gets the consideration it needs.”

Later, Wisconsin reporters confirmed that some missing senators were in Rockford, Ill., and that others were in undisclosed locations. Some even claimed that state troopers, who stand to lose a little under the bill—which would dramatically scale back the powers of public-sector unions—were refusing to go after them.

So can legislators stop a bill by refusing to show up? They might, but they’re not actually allowed to. According to Article IV, Section 7 of Wisconsin’s constitution, the legislature “may compel the attendance of absent members in such manner and under such penalties as each house may provide.”

What that meant on Thursday, according to the legislature’s Sergeant at Arms office, was literally searching around the Capitol looking for the missing senators. (Sixteen years ago, this had to be done when then-Sen. Joe Wineke tried to skip a vote on a sales tax increase to pay for a stadium.) Senate Rule 84 defines what has to be done:

“The chief clerk shall immediately call the roll of the members, and note the absentees, whose names shall be read, and entered upon the journal in such manner as to show who are absent with leave and who are absent without leave. The chief clerk shall furnish the sergeant at arms with a list of those who are absent without leave, and the sergeant at arms shall forthwith proceed to find and bring in such absentees.”

That empowers the state to ask law enforcement to find missing senators. What if the senators beat a retreat, literally? If they can’t be found, or if—as apparently happened Thursday—some of them have crossed state lines? The Senate’s options are extremely limited.

“As long as they’re out of the state, the sergeant at arms is unable to get them,” explains Dennis Dresang, professor emeritus of public affairs and political science at the University of Wisconsin-Madison. “There’s not much the governor could do. You might say he could declare a state of emergency, but there’s not an emergency here.”

Walker more or less acknowledged that in a Thursday afternoon press conference. “We have faith,” he said, “after they do their stunt for a day or two—it’s more about theatrics than anything else—that they realize they were elected to do a job.”

No one else can do that job until and unless the senators return. Because there’s no quorum in the Senate, there won’t be any emergency legislation dealing with the Flight of the Democrats. “The Republicans kind of missed their opportunity to change the 3/5 rule,” says Dresang. “They didn’t change these rules, so they’re kind of stuck.”

An impasse like this hasn’t happened in Wisconsin before, but it did happen in Texas eight years ago. In 2003, after Republicans took control of the legislature there, they attempted to pass a new redistricting plan that would weaken Democrats. Most of Texas’s Democratic caucus fled the state for Ardmore, Okla., and only returned when they were promised that the vote was off. When redistricting came up again in a special session, 11 of the 12 Democrats in the Texas Senate fled to Albuquerque to stop the vote.

How did Texas Republicans end the crisis? None of the Democrats were ever “caught.” Sen. John Whitmire broke with his Democratic colleagues and returned home, for two stated reasons. One: He worried about all the other legislation stopped by the impasse. “At some point in time,” he explained, “remaining in New Mexico is counterproductive.” Two: Lt. Gov. David Dewhurst had, in order to bring up redistricting, suspended the rule that required a two-thirds majority for passage, and Whitmire worried that the protest would end with the rule being permanently ended. (This didn’t happen.)

So the Wisconsin impasse could end with a compromise. Before today, some Republicans had talked about softening the “budget repair law” to attract Democratic support, perhaps by cutting benefits but not changing collective bargaining rights or by sunsetting some provisions of the bill. That would be the simplest way to end the whole mess. But that doesn’t mean it’s likely.

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