Quorum Rules

A commenter asks, "Why does Wisconsin have a quorum rule if not for situations like this?"

In yesterday’s post “Elections Have Consequences,” I argued that, while legislators in the minority power have every right to use all legitimate means to stop the majority from enacting legislation, that absconding to another state to keep a quorum from forming was not kosher.

Commenter Ponce asked, “Why does Wisconsin have a quorum rule if not for situations like this?”

According to Roberts Rules of Order, the definitive guide to parliamentary procedure, the “requirement for a quorum is protection against totally unrepresentative action in the name of the body by an unduly small number of persons.”

The purpose of a quorum rule, then, is to preclude the leadership of a body from calling secret votes or otherwise making it impossible for those in the opposition to attend. It ensures that the opposition has a legitimate chance to participate. Traditionally, Roberts Rules specified that “by-laws should provide for a quorum as large as can be depended upon for being present at all meetings when the weather is not exceptionally bad.”

Rather decidedly, it is not intended as a device for the minority to prevent votes. Indeed, it’s odd to have a quorum rule that requires more than a majority present for ordinary votes and, traditionally, if sufficient notice was given of the vote, those actually present would constitute a quorum.

Humans being what they are, it was quickly discovered that this rule designed to protect minorities could be abused in such a way as to produce exactly the opposite of its intended effect: protection against representative action!  Wikipedia reports that this technique, variously called “quorum busting” or a “disappearing quorum,” was in wide use in the U.S. House of Representatives until 1890, when it was defeated by harsh action:

The practice was shattered on January 29, 1890, when a resolution was brought to the House floor that concerned who should be seated from West Virginia’s 4th congressional district: James M. Jackson, the Democrat, or Charles Brooks Smith, the Republican.

The Speaker of the House, Thomas Brackett Reed put this question to the Members: “Will the House consider the resolution?” The yeas and nays were demanded with a result of 162 yeas, three nays, and 163 not voting. Democrats, led by Charles Crisp (who succeeded Reed as Speaker in the next two Congresses), then declared that the absence of a quorum (179 Representatives) prevented the House from making decisions. As dictated by House rules for the suggestion of the absence of a quorum, Speaker Reed began an attendance roll call – but directed the Clerk of the House to record as present any Member who was then in the chamber, whether they answered the roll call or not.

Immediately, Reed’s action produced an uproar in the House. “Tyranny,” “scandal,” and “revolution” were some of the words used to describe Reed’s action. Democrats “foamed with rage,” wrote historian Barbara Tuchman.

A hundred of them were on their feet howling for recognition. ‘Fighting Joe’ Wheeler, the diminutive former Confederate cavalry general, unable to reach the front because of the crowded aisles, came down from the rear leaping from desk to desk as an ibex leaps from crag to crag. As the excitement grew wilder, the only Democrat not on his feet was a huge representative from Texas who sat in his seat significantly whetting a bowie knife on his boot.

Speaker Reed remained firm in the face of this parliamentary tumult and angry debate. He continued to count nonvoting legislators for quorum purposes. Reed even ordered the doors of the chamber locked when Democrats tried to exit; instead, Democrats began hiding under their desks, which left Reed undeterred in counting them. Finally, after five days of stridency, the contested election case was taken up and Republican Smith emerged the victor by a vote of 166 yeas, 0 nays, and 162 not voting. Then, on February 6, 1890, the Reed-led Rules Committee reported a new set of House rules. One of the new rules—Rule 15—established a new procedure for determining quorums (counting lawmakers in the chamber who had voted as well as those who did not vote).

Nowadays, most legislatures have the power to coerce attendance via a call of the house or other quorum call. In some cases, the sergeant-at-arms quite literally has the authority to arrest members not in attendance and drag them to the floor to achieve a quorum.

In the United States Senate, the procedure was used in the early morning hours of February 25, 1988. Senator Robert C. Byrd of West Virginia, then the Senate Majority Leader, moved a call of the house after the minority Republicans walked out in an attempt to deny the Senate a quorum after Senate aides began bring cots into the Senate cloakrooms in preparation for an all-night session over campaign finance reform for congressional elections. Bryd’s motion was approved 45-3 and arrest warrants were signed for all 46 Republicans. Senate Sergeant-at-Arms Henry K. Giugni and his staff searched the Capitol’s corridor and Senate office buildings for absent Senators, and after checking several empty offices, spotted Senator Steve Symms of Idaho, who fled down a hallway and escaped arrest. After a cleaning woman gave a tip that Senator Robert Packwood of Oregon was in his office, Giugni opened the door with a skeleton key. Packwood attempted to shove the door closed, but Giugni and two assistants pushed it open. Packwood was “carried feet-first into the Senate chamber by three plainclothes officers” and sustained bruised knuckles.

The Wisconsin Senate seems to have slightly less powerful rules but does allow for a quorum call:

Senate Rule 15. Roll call, quorum. Before proceeding to business, the roll of the members shall be called, and the names of those present and those absent shall be entered on the journal. A majority of the membership presently serving must be present to constitute a quorum for the transaction of business; a smaller number, however, can adjourn; and may compel the attendance of absent members. When any roll call discloses the lack of a quorum, no further business may be conducted until a quorum is obtained, but the members present may take measures to procure a quorum or may adjourn.

Given that Republicans constitute a majority, it’s not clear to me why the Democrats’ quorum busting is even slowing down the process. Further, they have unspecified powers to “compel the attendance of absent members.” So, unless the bill under controversy is operating under some special rule requiring supermajority attendance, I don’t know what the holdup is.

So, the Republican majority constitutes a quorum all by itself for ordinary legislation. However, Wisconsin requires a 2/3 quorum for budget votes.

FILED UNDER: Politics 101, US Politics,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. george says:

    If its not illegal, then like the current filibuster rules (in which you don’t even have to speak), its legal. If the voters find it unacceptable, they’ll make their opinions known next election, and the legislation can be changed. Basically this, like a filibuster, is another of the checks and balances put into the system.

    And as I’ve stated before, its not a bad thing; I wouldn’t trust either party to park my car (as the saying goes), and anything which forces the parties to find a compromise is a good thing.

  2. Brummagem Joe says:

    Quorums exist for much the same reason filibuster rules exist in the senate. Checks and balances. They are one of the most fundamental principles at the center of the US political system. On balance I tend to think the US political system has too many of them and when combined with its fragmentation and decentralisation it all too often produces a state of sclerosis. But for better or worse it’s the system we have. In practice Walker and co are going to find it difficult to coerce these Democrats back when they are across state lines. In any case this is going to turn into long and largely extra legislative battle wouldn’t you agree JJ?

  3. James Joyner says:

    @BJ: “Quorums exist for much the same reason filibuster rules exist in the senate. Checks and balances.”

    The entire post is a demonstration that this is simply not true.

    “In practice Walker and co are going to find it difficult to coerce these Democrats back when they are across state lines. In any case this is going to turn into long and largely extra legislative battle wouldn’t you agree JJ?”

    As noted in the closing paragraph, I don’t understand what the issue is. Rule 15 simply requires a majority and allows coercion. I don’t know why the Republicans can’t form a quorum on their own. And, if they can’t, this is all moot because the legislation wouldn’t pass.

  4. John Burgess says:

    I think the issue is that the particular nature of this bill, which affects the budget, does require a super-majority, 3/5 of all members, and not just a simple majority.

  5. PD Shaw says:

    I belive John is correct. The Wisconsin Constitution:

    “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.”

    So, three-fifths of members are needed to take up fiscal bills, but a majority is all that is needed to pass it.

  6. PD Shaw says:

    Just looking at the annotated Wisconsin constitution, it’s interesting that according to an opinion of it’s attorney general, that “Past decisions of the court consistently tend to limit the definition of what is a fiscal law.” If, as critics say, the collective bargaining provision is not budget-related, the Republicans could strip it and pass it separately without the need for a super-majority quorum.

    http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=wiscon&jd=top

  7. Brummagem Joe says:

    @BJ: “Quorums exist for much the same reason filibuster rules exist in the senate. Checks and balances.”

    “The entire post is a demonstration that this is simply not true.”

    Actually I’d have said it was a fairly convincing demonstration it was true (as have events in Washington over the last two years) or why wasn’t the WI senate able to vote on legislation last week and won’t be able to this week?

  8. Trumwill says:

    Whether it was intended for this use or not, there’s no indication that it’s illegal. The people of Wisconsin have the right to be upset about it and take it out at the ballot box, but that’s really about as far as it goes.

    It’s also notable that this was not unforseen. Last decade, this happened in Texas during the redistricting battle. A bunch of Democratic state legislators took a trip to Oklahoma.

    If the Wisconsin Republicans want to put a stop to this, they need to revise the rules. For the intended purposes of the quorum requirement, it seems that you could simply wave the quorum requirement under certain circumstances (legislators were given three days to appear or could not be found within seven days or something like that).

  9. TG Chicago says:

    I agree with Joe in a literal sense, but with James more broadly.

    As James shows, the quorum rule *is* designed as a check — against the power of a sneaky minority. It’s to keep a small number of representatives from being able to run in at 2 am and pass legislation. That, to me, falls under “checks and balances”.

    However, it’s not a check that is intended to be used as a roadblock by a minority party, like the filibuster.

  10. Axel Edgren says:

    Who cares whether it is “against the rules”? Rules can never be perfect or designed in a way that always guides human actions towards the best or most reasonable position.

    If a democratic governor had concocted a budget surplus and tried to use it to give unions more rights despite the state being in poor fiscal health, I would have supported republicans fleeing the state as well.

    When you go into more extreme situations (like governors being paid by special interests to pursue a vendetta against other organizations and using bogus fiscal statements as justification) you can’t just use “It isn’t proper cricket!” as some sort of perfect argument.

    Weak people rely on rules like they are godly writ, strong people go on a case-by-case basis (and still manage to do the right thing). In this case, I support the democrats just leaving and using power play. In another case, maybe I would not.

  11. An Interested Party says:

    I wonder if you can feel some similar outrage against what the majority is doing in the Wisconsin statehouse…

    http://www.youtube.com/watch?v=lZsOKNfNkfQ&feature=player_embedded

  12. sam says:

    I read somewhere that the actions of the Democrats constitute “filibuster by foot”.

  13. Passing By says:

    I have to score this one for Scott Lemieux.

    All through the last Congress, the US Senate Republicans played by the rules, but used them aggressively to obstruct the majority Democrats. Now the WI Senate democrats are doing exactly the same.

    Unless you denounced the one, you have no standing to denounce the other.

  14. Brummagem Joe says:

    “For the intended purposes of the quorum requirement, it seems that you could simply wave the quorum requirement under certain circumstances”

    Well then they’d meet a legal challenge.

    ” However, it’s not a check that is intended to be used as a roadblock by a minority party, like the filibuster.”

    The use that’s made of the check doesn’t stop it from being a check. If I knock a nail in with my shoe it remains a shoe and does not become a hammer although it may temporarily be used for that purpose. The quorum and the filibuster both serve as a legislative checks, all you and Jim are saying is that one is more efficient than the other, although maybe not in the case of WI.

  15. Brummagem Joe says:

    For the intended purposes of the quorum requirement, it seems that you could simply wave the quorum requirement under certain circumstances”

    Well then they’d meet a legal challenge.

    ” However, it’s not a check that is intended to be used as a roadblock by a minority party, like the filibuster.”

    The use that’s made of the check doesn’t stop it from being a check. If I knock a nail in with my shoe it remains a shoe and does not become a hammer although it may temporarily be used for that purpose. The quorum and the filibuster both serve as a legislative checks, all you and Jim are saying is that one is more efficient than the other, although maybe not in the case of WI since the Democrats have voted with their feet.

  16. TG Chicago says:

    I agree with you that they’re both checks. But much like your shoe, the quorum is being used here in a different way than its designer intended.

  17. Trumwill says:

    Well then they’d meet a legal challenge.

    I wasn’t clear. I meant that if they want to put a stop to this sort of thing in the future. There isn’t much they can do about it now. Regardless of intent, the rules are the rules. They might (or might not) want to change the rules for future sessions, however.

  18. Dustin says:

    As noted by John Burgess and PD Shaw, the problem for Walker is that it effects the budget and so he needs 3/5 of the members. However, that is also why the Republicans will likely try this week to move on other issues the Democrats would want a say in, to force the Democrats’ hand.

    As a Wisconsin resident, in the end, it was the right move, because before those 14 senators crossed state lines to delay the vote, not only the nation, but Wisconsin itself, wasn’t getting the full story. Walker tried to ram though a radical change (which as James has noted before, he didn’t run on), in less than a week’s time, and largely tried to obfuscate what he was doing. (And continues to really.)

    It took most of the week for Wisconsin media to get the issues right, and many residents still don’t understand what is truly going on. I have talked to a handful of people who supported Walker initially, but now waiver on that support or have went the other way. In many ways, a very civil discussion of the issue has broken out in the state. People are asking questions, articles are coming out about what the real effects will/would be, the Trooper union who initially supported Walker and whom he exempted has expressed “regret” for that endorsement, the list goes on.

    None of that happens without the quorum issue.

  19. Barry says:

    TG Chicago says:
    “I agree with you that they’re both checks. But much like your shoe, the quorum is being used here in a different way than its designer intended.”

    As is the fillibuster. Even counting ‘designer’ as the people who modified it last in the 1970’s, the counts clearly show an incredible spike in the past few years (i.e., when the GOP needed it to block everything in sight).

  20. Jim says:

    According to the WI constitution you only need a simple majority to “compel the attendance of absent members” in regards to a quorum. Maybe a simple vote to declare a member negligent of the attendance requirements upon which time they have 2 weeks to show up or else get fined $100,000 per day.
    They would either show up, go broke, or have to resign. Sounds pretty compelling to me.

  21. Question:

    A quorum should not convene to conduct ostensibly illegal activity such as the prohibition of free speech or inequitable labor rules. Wouldn’t unions have the right to put forward any proposals for their working conditions under basic free speech laws? Certainly the retention of collective bargaining powers for select unions would render the intended legislation out of the realm of reasonable intent to achieve fiscal austerity

    If this is a legitimate consideration, then no laws were broken and the senators merely refused to allow their bodies to be used as sanction for the violation of their oaths of office. They aren’t under obligation to bless the use of the state house to promote personal vendettas against various economic groups.

    I see it as a realization of the scenario put forth in Atlas Shrugged – without the ending of one of the ‘heroes’ murdering a man followed by the future dictator of the world making the sign of the dollar over the landscape.

    The governor doesn’t even have Galt’s talents to recommend his absolute rule.

  22. Stephanie says:

    @axel –
    I agree with you completely. I don’t think you can judge the 14 democrats’ actions in a vacuum. If they had stayed we may never had understood the bill in full. Walker has not been honest about his intentions. Even today on Meet the Press, he has taken the actions of local cities and municipalities who extended union contracts because the city govts were concerned about the changes and did this on their owns. Unions didn’t ask for those actions. Thank goodness for our 14 Senators. Without them we would have limited information.