Does the Wisconsin Senate have the power to compel absent Democratic senators to return to the senate floor if they re-enter the state of Wisconsin? Yes. But the Senate Resolution, by focusing on contempt and disorderly conduct, weakens the basis for this action.
I think this question must be analyzed at four levels:
1. Constitutional Protections: Would the Wisconsin Constitution’s protection against being arrested in a case – that is, a court case – apply to this situation, which is not an arrest in a court case?
2. Enforcement: Who can or would enforce a legal senate order to compel attendance?
3. Statutory Problems: Do any statutes alter any power in the senate to compel attendance?
4. Adequacy of the Resolution: Does the Senate Resolution give an adequate legal basis for compelling attendance.
In this post, I take up the constitutional question.
Reading through a couple dozen news articles and blog posts on this matter, I have been appalled at the inability of the commentators to analyze the relevant Wisconsin constitutional provisions. Because I am not an expert in these matters, it is easy for me to make mistakes, but even a cursory glance at what’s out there suggests that genuine experts have not yet weighed in sufficiently to shape the debate. One blog even posted what purports to be a legal memo from some Madison attorneys.
Typical of the news reports is this one from CNN:
But whether the contempt measure is constitutional remains unclear. The state Constitution prohibits the arrest of lawmakers while the legislature is in session, except for “treason, felony and breach of the peace.”
CNN misreads the provision in part because they quote only part of the relevant language of the Wisconsin constitution:
SECTION 15. [Exemption from arrest and civil process.] 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, nor for fifteen days next before the commencement and after the termination of each session.
The exemption from arrest is a separation of powers provision. Traditionally, legislatures could police their own miscreant legislators, but the courts could not interfere with the ability of legislators to appear in the legislature. Two hundred years ago, “arrest” was something that occurred in criminal cases and most non-contract civil cases. Thus by its express terms, the Wisconsin privilege against arrest applies only to “cases.”
In 1770 Lord Mansfield advocated for a bill that allowed Members of Parliament to be arrested for crimes but not arrested for civil cases:
Members of both houses should be free in their persons in cases of civil suits, for there may come a time when the safety and welfare of this whole empire may depend upon their attendance in Parliament. God forbid that I should advise any measure that would in future endanger the state. But this bill has no such tendency. It expressly secures the persons of members from arrest in all civil suits. [as quoted in Williamson v. United States, 207 U.S. 425, 438 (1908)]
There it is. The purpose of the privilege against being arrested in a court case was to help facilitate attendance in Parliament, not to frustrate it. The idea that Mansfield would have been preventing Parliament from enforcing its own rules by outlawing compulsion would probably not even have occurred to him. Thus compelling attendance in the Wisconsin senate is consistent, not only with the letter of the Wisconsin Constitution’s arrest clause, but with its spirit and purpose as well.
I would hope that those who rely on the arrest clause of the state constitution would deal with the fact that the privilege against arrest applies “in all cases.” These commentators might try to argue that the drafters of the Wisconsin — and by implication, US – Constitutions meant “in all instances” when they wrote “in all cases.”
As implausible as this interpretation would be in the abstract, in context it would not pass the laugh test. After all, the phrase reads: “in all cases, except treason, felony and breach of the peace.” In context, the framers’ language clearly meant court cases. If there is some reason to think that the Constitutional arrest provision doesn’t mean what it says, I haven’t encountered it yet (but then I’ve been working on this issue for only a few hours and this is out of my main areas of expertise).
Another amazing defect of the analyses I’ve encountered is that they ignore — or are unable to reconcile sensibly – the compulsory attendance provision (Article IV, §7) of the constitution:
SECTION 7. [Organization of legislature; quorum; compulsory attendance.] 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.
Reading the two constitutional sections together, the courts can’t meddle in legislative affairs by arresting legislators in a civil court case, but each house of the legislature “may compel the attendance of absent members in such manner and under such penalties as each house may provide.” Given that force was traditionally used to compel attendance and is still used in the US Senate (which operates under similar Constitutional provisions), there would have to be a reason that I haven’t seen yet why this provision does not authorize force if necessary.
As I noted this afternoon:
Historically, constitutional guarantees against the arrest of members of legislative bodies developed as protections against judicial or executive arrests, not against the power of a house of a legislature to seize and discipline its members. Indeed, this was considered a matter of legislative privilege, and when a house of a legislature remained within its privilege, its disciplinary decisions were considered beyond the review of the courts. The Wisconsin constitutional provision on the arrest of members (Art. IV, s. 15) follows this tradition . . . .
The privilege to compel attendance is just as much a legislative privilege as the privilege not to be arrested in court cases.
Why would commentators assume that the arrest clause and compulsory attendance clause were inconsistent — and that the drafters of both the US Constitution and the Wisconsin Constitution were too sloppy to notice it and resolve the tension — and that the arrest clause trumps the compulsory attendance clause? If you just read both clauses according to the language they actually used, they are not at all inconsistent. One applies to court cases in the judicial sphere, the other to house discipline in the legislative sphere. This interpretation is consistent with their language, their purpose, their history, and their logic.