Tuesday, March 01, 2011

Absent legislators are not heroes

One of the sillier claims made over the contretemps in Madison - and its a robust competition - was made by George Lakoff. We should, he writes, call the fugitive Senators "the Lincoln legislators" and claims that are actually fulfilling our state's constitutional design. Quorum requirements, he asserts, were designed for just this purpose. The whole point, he says, is to allow a minority to paralyze a legislative body when it is about to do some thing they think his bad. This frustration of the will of a democratically elected body is an "essential part of democracy."

Really. I did not make that up. I am just not that imaginative.

Lakoff invokes a story claiming that Abraham Lincoln, as an Illinois legislator, jumped out of a window to destroy a quorum. Perhaps he did. But that doesn't make it right.

As a matter of Wisconsin's constitutional design, the argument that our framers intended quorum requirements to be used as a device to prevent a majority from acting is not only flat out wrong, it is frivolous. It requires one to ignore the language of the very constitutional provision creating the general requirement of a quorum. It states that, if a quorum is not present, those lesser numbers of legislators who are present to compel the attendance of those who are absent. If the framers of the Wisconsin Constitution had attended quorum requirements to be a device for frustrating the will of a legislative majority, they would not have given the body the power to compel attendance.

Rather than permitting a rump of a legislative body to prevent the enactment of law by the body as a whole by deliberating staying away, they were intended to prevent a rump from enacting law without permitting the participation of those who are absent. Lincoln may have been a great man, but not everything a great man does is great.

Lakoff is, of course, known for advancing a well known trope of progressives. The idea is that Democrats lose elections because Republicans are so much better at framing the issues in ways that are perverse and false and confusing. Whatever the merits of that claim, he has certainly shown how it's done.*

* I am one of the lawyers for the plaintiff in Barthel v. Holperin, litigation filed today in the Circuit Court for Oconto County seeking to compel one of the missing legislators to return. Any work I have done or will do in the case is being done pro bono.

22 comments:

George Mitchell said...

Lakoff's claim is not unlike that of David Cay Johnson at Tax Analysts, who says public employees already contribute 100% of the cost of their pensions. Sophistry.

smithwords said...

Something that has occured to me as I have contemplated how a minority of 14 Senators could willfully thwart the wishes of the majority of voters in this state: liberals fundamentally do not believe in majority rules; their whole philosophy rests on the belief of the righteousness of the minority. Since the mid to late 1950′s when the Supreme Court started to affirm certain protections of the minority (not just “minorities”…that’s related but separate), liberals have seen that this is the way to battle and to win their fights. We conservatives believe fairness and justice is what is right for the majority; liberals believe fairness and justice is what is right for the minority. So, it should be no surprise that these 14 Senators did what they did, and we should have every expectation that they will most likely do it again, because, it doesn’t matter what the majority want. In their view, the minority must prevail, at any and all costs.

Anonymous said...

The temporary frustration of the will of a democratically elected majority through the intentional deprivation of a quorum may not be "an essential part of democracy," and it may not be the intended purpose of the quorum requirement. However, it may very well be a beneficial part of a republican form of government, and it functions much as the filibuster does in the United States Senate: as a check and balance against arbitrary majoritarian action. The United States is not what the Greeks referred to as a "democracy," a country ruled directly by the majority of the people. It is rather a republic or mixed regime, and various checks and balances serve to halt or slow down the passing whims of a majority. The filibuster (much invoked by Republicans of late) is intended to foster deliberation. This, too. Walker tried to railroad this through way too fast and without any negotiation or even legislative hearings. The Dems' dramatic exile from the State is an extraordinary action, but it's intended to slow the train down and get people to deliberate and read the fine print, like the no-bid power plant giveaways. It's achieving that result.

Anonymous said...

The 14 Senators will not be gone forever. Hopefully, they're formulated an offer of what they want in exchange for collective bargaining. Or, perhaps a new difinition of collective bargaining that meet the needs of todays economic conditions.

The Unions can no longer act indifferent to the impact of there decisions on the economy. likewise, business and the goverment can no longer make decisions that nearly bankrupt our country as we have seen with the housing disaster.

The quorum rule appears to explicitly give them the right to not form one to force a vote. I for1 one hope this time is being wisely spent by both sides to bring it to a successful conclusion.

John Foust said...

Today I learned "pro bono" in laywer Latin means "in exchange for a sandwich and an ice-cold Koch."

Michael J. Mathias said...

Using a time-honored procedural rule to delay a vote is wrong? By this logic, shouldn't you be urging the US Senate to give Louis Butler an up or down vote?

Anonymous said...

Can we use the hero label with Gableman?

Anonymous said...

Using a procedural rule to prevent injustice should be mandatory.

Brew City Brawler said...

Actually, your assertion that the "rest of us" are not proud of the protests in Madison was fairly imaginative, unless by "us" you meant Mequon. Give yourself some credit, bro!

Brew City Brawler said...

Also, your "legislative majority" would not have been such had they candidly run on a platform of union busting.

George Mitchell said...

OJ's lawyers achieved jury nullification.

BCBrawler wants to nullify the 2010 election.

What prevents BCBrawler and company from mobilizing and reacting in 2012? Nothing.

Marc Eisen said...

The anonymous "smithwords" fumes that liberals believe in the righteousness of the minority, while conservatives like himself "believe fairness and justice is what is right for the majority."

How, then, does the anonymous "smithwords" feel about Gov. Walker signing a bill into law that would require a two-thirds majority of the Legislature to raise taxes?

I would hope, in the interests of intellectual consistency, that "smithwords" would oppose allowing a mere 34% of lawmakers to block the wishes of a solid majority.

Is this indeed the case? Or does "smithwords" believe that minority rule can be righteously okay when it favors conservatives?

Brew City Brawler said...

What prevented Scott Walker from candidly running on a union busting platform?
Nothing.
He didn't though and then decided to try to ram through a bill doing just that, something that is repugnant to the majority of Wisconsinites.
There would be no attempt to "nullify" anything if Walker and his (some reluctant) Senate supporters had not overreached in such dramatic fashion.
Spare the hyperbole.
If the election had been about union busting you'd have a point. It wasn't and walker has turned it into a no-compromise issue. Get over it.

Brew City Brawler said...

Seems your work is done already unless you're going to appeal. Nicely played!

John Foust said...

Separation of powers? Who could've seen that one coming?

smithwords said...

Mr. Eisen, my comments above were made in the abstract. I was theorizing about what seems to me to be a philosophical difference between conservatives and liberals concerning majority vs. minority rule. Realizing that our founding principles included provisions to protect the minority from being abused by the tyranny of the majority, I understand we can’t always be governed by “majority rules.” My concern is that the pendulum has swung too far in the other direction and that we have too many instances now of the “tyranny of the minority.” And my main point above is that, in general, liberals are much more likely to fight their fights from that perspective. And the majority then often finds itself cowed into submission.

Back to practicality, it appears that the concept of “super majority” has its place in our self-governance; this has been agreed to by both conservatives and liberals. However, in the “interests of intellectual consistency,” I will state that I am uncomfortable with it. I’m also uncomfortable with the filibuster rules of the US Congress, which Republicans can be rightly accused of using quite often over the past two years. At some point, it crosses the line of abuse and to me it becomes merely obstructionist, resulting in a tyranny of the minority. The difference for me is filibustering is within the rules; leaving the state to deprive the Senate of a quorum is not. It’s not right; it’s not fair and it’s not just.

By the way, my name is Steve…you can probably guess my last name. Does that make me any less anonymous? ;-)

Marc Eisen said...

Steve: Thanks for the explanation. I see where you're coming from.

Dad29 said...

What prevents BCBrawler and company from mobilizing and reacting in 2012? Nothing.

Except a failure of nerve.

They don't have the cojones to run their little revolution, George.

Dad29 said...

something that is repugnant to the majority of Wisconsinites

...if and only if they belong to public-sector unions.

Polls which use the word "rights" in conjunction with "union bargaining" and have public-sector as the subject are de facto misleading.

PEU has privileges granted ex nihilo by (D) pols in the late 1950's.

Run a poll asking if WI voters want a 10% prop-tax increase to preserve PEU members' compensation levels.

That would be an honest framework.

Brew city brawler said...

Dad29:
re pt 1: LOL and Walker didnt have the cojones to run on his "revolution." Because he wouldn't have won!

Re pt 2: I believe R's were present at the creation, you show great promise as a pollster and you need to explain to the Abp why he's in error.

Dad29 said...

BCB: The A'bp was NOT in error. He merely re-stated principles--that the dignity of the workingman should be respected AND that sacrifices should be made for the common good.

We've sacrificed PLENTY to have State and Local employees.

It's their turn.

John Foust said...

What's that, Dad29? Public employees aren't taxpayers themselves?