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What Would America's Founders Think About Fleeing Legislators?

4:05 PM, Feb 28, 2011 • By WILLIAM C. MARRA
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In September 1787, the Constitution was submitted to the states for ratification. The Pennsylvania Assembly met to pass legislation creating a convention that would decide if the state should sign on to the newly reconceived United States. But something was missing: a quorum. Several anti-Federalist lawmakers, determined to defeat the new Constitution, refused to show up for work, paralyzing the assembly.

What Would America's Founders Think About Fleeing Legislators?

The Federalists were displeased. The anti-Federalist flight, they said, was “the conduct of an unmanly minority.” And so an intrepid mob went down to Major Boyd’s Tavern, ferreted out two recalcitrant legislators, and dragged them to the statehouse. A quorum restored, lawmakers passed their resolutions as the mob rained “the most insulting language” down upon the erstwhile absconders.

The Wisconsin and Indiana state legislators now holed up in Illinois are not the first to skip town and deny their political adversaries a quorum to do business. Even Abe Lincoln once defenestrated himself from the Springfield statehouse in a botched bid to deny the majority Democrats their numbers.

Supporters of the Wisconsin 14 invoke this history of quorum busting to justify, and even to praise, the Badger State exodus. But the fact that it’s been done before doesn’t make it right. The better questions to ask are why we have quorums in the first place, and whether quorums are designed to encourage, or to prevent, defiant minority blocs from bolting the state.

A useful place to start is the document that led those Pennsylvania anti-Federalists to flee in 1787. Article I of the Constitution states that a majority of each house constitutes a quorum to do business. And just as importantly, it provides a tool to combat quorum busting, permitting a smaller number of legislators to “compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.”

The Constitution is famously brief—under 4,500 words. Yet the framers thought the quorum issue so important that they dealt with it explicitly, declining to delegate the responsibility to the House and Senate. Why did they think quorums were so important?

In his interesting look at the history of the Quorum Clause, John Bryan Williams shows that quorums are a vital reed of representative democracy. Quorums are designed to protect the majority: without it, a tiny minority could quickly call a meeting and pass laws before the other party shows up. This threat would have been particularly salient to the Founders, who lived in a time when transportation and communication were both very slow. The real specter of shotgun legislative sessions was troubling for reasons of both democratic legitimacy (the majority does not rule) and deliberative democracy (swiftly passed law is shoddy law).

Nancy Pelosi recently said she is “very proud” of the quorum busting Democrats. But the Founders saw quorum busting not as a virtue to be promoted, but as a vice to be neutralized. Gouverneur Morris told the convention that quorum busting was fundamentally antidemocratic because it might permit a minority to “extort, by threatening secession, some unjust and selfish measure.” This concern is why both the federal and the Wisconsin state constitutions empower legislators to compel, by force if necessary, attendance at legislative sessions. And writing in Federalist 58, James Madison criticized the “baneful practice of secessions” as “subversive of all the principles of order and regular government; a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us.”

The trick, as Williams explains, is properly calibrating the number of lawmakers you need for a quorum. Set the number too low (say, less than 50 percent), and you risk making it too easy for small blocs to assemble hastily and pass their laws. But set the number too high (say, two-thirds), and you run into the problem of quorum busters: The more noses you need for a quorum, the fewer noses it takes to bust that quorum. Alert to this concern, the framers rejected calls for a supermajority quorum, and settled instead on Article I’s simple majority.

Which brings us to the Badger State. In Wisconsin, the quorum for non-spending bills is 50 percent, or 17 of 33 lawmakers. But spending bills require a supermajority quorum of 60 percent, or 20 legislators. Because Republicans hold 19 seats and Democrats hold 14, the Democrats can only hold up spending bills. Wisconsin proves the framers right: the supermajority rule made the difference; without it, there would be no quorum busting in Madison.

The loser in all of this is democracy. By fleeing to Illinois or escaping to Major Boyd’s Tavern, dissenting lawmakers abuse the quorum rule, and they seize an unjustified veto over legislation supported by a majority of duly elected representatives. The quorum rule, designed to ensure majority rule and prevent a minority from co-opting the legislative process, is twisted to serve the very evil it was designed to combat, a tyranny of the minority. The recourse from controversial legislation like that in Wisconsin ought to be found at the ballot box, not in the dusk drive across state lines.

In the contentious times ahead, our leaders in Washington and statehouses across the land are certain to face that same temptation indulged by 14 senators in Wisconsin. These leaders would do well to remember that quorum busting undermines the quorum’s true purpose of preserving democratic legitimacy. They must ensure that our sporadic history of quorum busting does not become a revered precedent of which we count ourselves “very proud.”

William C. Marra is a student at Harvard Law School. 

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