Wisconsin Contempt Orders Hark Back to Byrd’s “Arrest” of Packwood

The Wisconsin Senate today passed a resolution holding the absent Democratic senators in contempt if they did not return by 4pm today. After the obligatory string of whereas clauses, the Senate made these resolutions:

Resolved, That Senators Carpenter, S. Coggs, T. Cullen, Erpenbach, Hansen, Holperin, Jauch, C. Larson, Lassa, Miller, Risser, Taylor, Vinehout, and Wirch are hereby ordered to appear at the senate chambers on or before 4:00 p.m. today, March 3, 2011, and to remain in the senate chambers until the senate is duly called to order and for such additional time as necessary to be counted as part of the quorum of that senate session; and, be it further

Resolved, That if any of the named senators fails to appear in the senate chambers on or before the prescribed time, then that member shall be held guilty of contempt and disorderly behavior by the senate, and the majority leader shall immediately issue an order to the sergeant at arms that he take any and all necessary steps, with or without force, and with or without the assistance of law enforcement officers, by warrant or other legal process, as he may deem necessary in order to bring that senator to the senate chambers so that the senate may convene with a quorum of no less than 20 senators; . . . .

AP is reporting that the majority leader has signed the contempt orders.

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, as suggested by its wording, which is that:

houses 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 Wisconsin situation is reminiscent of a story that I relate in my SSRN piece, Super Quorums Under the Wisconsin Constitution:

[O]n the evening of February 23, 1988, Republicans in the U.S. Senate walked out during an all-night filibuster in order to deny the majority a quorum. Democratic Majority Leader Harry Byrd had arrest warrants signed for all 46 Republicans. Tipped off by a janitor that Senator Robert Packwood was hiding out in his office, at about 1:00 a.m. on February 24 the Sergeant at Arms used his passkey to unlock Packwood’s office and, with the help of several associates, push his way into the office, overcoming Packwood’s attempt to hold the door closed. Packwood agreed to walk over to the Capitol, but said he would have to be carried into the chamber. He got his wish, being carried feet first onto the floor of the Senate, aggravating an existing injury to his hand but supplying the additional body needed for a quorum.

On the floor of the Senate, Byrd spoke quietly about his decision:

Partial TRANSCRIPT of BYRD’s Comments:

This is the second time in my service in the Senate as a member of the leadership that I have felt compelled to move that the Sergeant at Arms arrest a Senator. In both instances, of course, I was reluctant to do that, sorry to do it, but I felt I had a duty to do it.

I’m not so sure that this is a wise move by the Republicans in Wisconsin.

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