The separation of powers may be the one thing most Americans retain from their civics education. The legislative, executive, and judicial branches each have their own separate functions. They come together to make up the government, but work at cross-purposes just enough to prevent one person or one branch from gathering too much unchecked power.
This principle animates the federal and state constitutions alike. But it’s been abandoned in the Oregon legislature’s current standoff.
A minority of the Oregon senate has fled the state in order to deny a quorum to the Democratic majority. Their goal is to prevent the passage of a carbon cap-and-trade tax bill that would disproportionately burden their rural constituents.
Historically, when legislators walked out, the house’s majority took responsibility for getting them to return, by force if necessary. In Oregon, this job has been outsourced to the executive branch. Practically, it is a minor difference, but it lays out a dangerous precedent for liberty and legislative independence in a republic.
Disappearing quorums themselves are not new. Abraham Lincoln famously jumped out a window as a young Whig in the Illinois state legislature to help his party deprive the Democrats of a quorum. Often this occurs in state houses where the required quorum is more than a simple majority — where one party might control the house but still needs some of its opponents at least to show up. In Oregon, both houses need two-thirds of their members present. Its senate’s Democrats are just short of that fraction, with 60 percent of the seats.
More-recent federal examples show how this is supposed to work. Even though the U.S. Constitution demands only a majority to make up a quorum, in a closely divided body, a few absent members from the majority can make that difficult. In 1988, Democrats clung to a 54–45 majority and had a tough time keeping 51 of their members in the chamber at one time.
Republicans filibustered a Democratic spending bill that year and used the disappearing quorum to frustrate the majority’s efforts. The minority party’s members requested a quorum call and then fled, and the majority kept coming up short. Majority Leader Robert Byrd ordered the sergeant-at-arms to round up the absentees, which he did. Capitol police — who work for Congress, not the executive branch — found Republican Bob Packwood and carried him bodily into the chamber, giving the majority its required presence of 51 senators.
Dramatic? Definitely. But it was far from unprecedented, and was in keeping with the Constitution’s language, which says that a smaller number of senators can conduct some business without a quorum and “may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.”
Oregon’s constitution contains a similar provision: A number of members making up less than a quorum “may meet; adjourn from day to day, and compel the attendance of absent members.” But instead of using its own power to police its members, the Oregon senate outsourced it to the executive, sending the Oregon state police to track down their hidden comrades. In doing so, they give the governor permission to arrest legislators.
Oregon’s legislators might explain the surrender of power to the executive as being authorized by statute, and they’re right, as far as that goes. The law provides that the “state police, with the approval of the Governor, may be called upon by any other branch or department of the state government to enforce criminal laws or any regulation of such branch or department.” Case closed? Not quite.
The state constitution in Oregon is even more explicit about the separation of powers than the federal one: “The powers of the Government shall be divided into three separate branches, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these branches, shall exercise any of the functions of another, except as in this Constitution expressly provided.” Combine that with another provision, granting that “each house shall have all powers necessary for a chamber of the Legislative Branch, of a free, and independent State” — and recall that constitutional provisions override statutes when the two conflict — and it raises doubts about how a traditional function of the legislature can be performed by the executive.
Use of the police also creates practical problems. For one thing: The absent Republican legislators have not committed a crime. Walkouts have a long history in Oregon, and never have they been a part of the criminal code. In 2001, Democrats in the state house walked out to prevent the Republican majority from passing a redistricting bill. The majority did not resort to using the state police then, perhaps out of respect for the separation of powers, but more likely because then-governor John Kitzhaber, who controlled the state police, was a Democrat. After dodging the sergeant-at-arms and private process servers, the Democrats returned after less than a week and got back to work.
No one called the 2001 walkout a constitutional crisis. Nor were the Oregon Democrats’ 1995 or 1971 walkouts considered events that shook the foundations of the state. This time is different only in that a climate of hysteria overlays all of our political conversations. Everything is a crisis, everything is the last step before anarchy. It sells newspapers and gets clicks but it is ultimately nonsense.
This time is also different in that the use of state police has weakened the independence of the legislature. It might not appear to make much difference who compels a legislator to return to his desk, but the difference between this walkout and the 2001 version shows why it should. When the governor’s party controls the legislature, the majority can use force to compel the minority. When control is divided, it cannot. This gives the governor a tremendous amount of power over the legislature.
Both the federal and the Oregon constitutions contain prohibitions on arresting legislators. (The language is nearly identical.) Oregon’s states that “Senators and Representatives in all cases, except for treason, felony, or breaches of the peace, shall be privileged from arrest during the session of the Legislative Assembly, and in going to and returning from the same; and shall not be subject to any civil process during the session of the Legislative Assembly, nor during the fifteen days next before the commencement thereof.” That is a sweeping grant of immunity from executive interference with their duties.
These and similar words in the federal constitution are there for a reason. Our Founding Fathers were not far removed from a time when British kings had arrested members of Parliament who displeased them. John Wilkes, a member of the House of Commons who was particularly critical of King George III, was arrested in 1768. In 1642, King Charles I attempted to arrest five members of Parliament just before the civil war that would lead to his execution. The Framers knew their history and wished to avoid repeating it.
Oregon’s Democrats have forgotten that history, or perhaps no longer care to remember it. It has become common for a party, once they believe that they will hold power forever, to ignore those minority protections that once benefited them. In this century, Oregon has gone from swing state to solidly Democratic, but no party should imagine that it can never lose an election. The growth of executive power in state and federal government already threatens our liberties by undermining the separation of powers. Oregon’s Democrats erode those protections even more by surrendering their immunity to the executive.
Editor’s Note: This piece has been emended since its original posting.